How the Washington Redskins Name Debate Could Ensnare L.A. TV Stations

Redskins Entangled - H 2014
Courtesy of Banzhaf; AP Images

Redskins Entangled - H 2014

"What might have seemed like a minor distraction might be something they don't need on top of the other stuff," says an activist law professor looking to force the team's owner to make a change

A version of this story first appeared in the Oct. 17 issue of The Hollywood Reporter magazine.

Efforts to force Washington Redskins owner Daniel Snyder to change the name of his NFL team got a boost Sept. 30 when FCC chairman Tom Wheeler said he would consider a petition to strip Snyder's Washington radio station of its license over the issue.

But this is only phase one for activist law professor John Banzhaf III, who filed the petition.

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Banzhaf tells THR he wants to file petitions in L.A. to challenge the licenses of TV stations owned by ABC, CBS, NBC and Fox, whose on-air broadcasts use the name. He chose L.A. because it has a large Native American population and all California licenses are up for renewal Dec. 1.

Banzhaf is in talks with several Indian groups (he would not name names) about supporting his effort. He can't personally petition an L.A. station. It has to be done by a resident of the station's viewing area. 

A petition would trigger a process that would require the station to respond, after which Banzhaf's side would also respond to that response. "The FCC moves like molasses," said Banzhaf. "Meanwhile the stations do not have their license renewed and that may have consequences for them."

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That could include extra expenses for legal responses, an impact on their credit rating or stock price, and it would make it difficult if not impossible from owners to sell the stations until the matter is settled. 

"They can continue to broadcast," added Banzhaf, "but they will broadcast without the certainty and financial protections and other advantages of having a license good for five years or more."

That delay is part of Banzhaf's strategy. He is counting on the "raised eyebrow" theory, meaning even a chance of losing a license might scare stations and even the NFL into putting pressure on Snyder, especially with the league's recent negative press.

Says Banzhaf, "What might have seemed like a minor distraction might be something they don't need on top of all the other stuff."

After L.A. Banzhaf plans to go after radio and TV stations in areas with large Indian populations in states like Oklahoma, North Dakota and South Dakota that are owned by individuals or smaller companies. He will offer stations the opportunity to sign an agreement not to use Redskins — what he says the Indians call "the R-word" — but rather refer in news and sports broadcasts to the team simply as "the Washington NFL club" or another euphemism. 

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If stations refuse to budge, eventually there would be an FCC hearing. Banzhaf plans to seek a ruling that the name "Redskins" is obscene in this usage because it is a form of hate speech.

However, it is unclear if Banzhalf and his supporters would win in the end. Washington attorney David Solomon says there's no precedent to declare "Redskins" obscene or hate speech.

"It doesn't fit with the legal definition of obscene or indecent or profane," says Solomon. "There is a long line of FCC precedent that says because of the First Amendment, it has no jurisdiction over hate speech."

That would change if there had been a legal conviction relating to the hate speech; but that would not be the case with the Redskins. 

Even Wheeler has backed off a bit since his first statements about taking Banzhaf's petition seriously. 

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When asked for a comment, a spokesman for Snyder and the team said in a statement: "We look forward to having the FCC hear this petition and believe that the Commission will rule correctly and consistently with federal regulations related to licensing."

Still, John Crigler, another broadcast attorney, says it becomes a question of "how far the FCC wants to push the idea of indecency or profanity. Its old rulings have said it's got to be limited to sexual or excretory references and doesn't include hate speech or racial slurs. The question is whether they will use this as a vehicle for expanding that definition."

"The real question is whether the FCC is the right vehicle for doing this," added Crigler. "Even the chairman has said the preferable way to deal with the issue is through boycotts, appeals to public sentiment. The FCC is not supposed to be a censor."

Banzhaf has had no contact with Snyder or the team and doesn't expect them to change because of his efforts alone: "It's pretty clear moral suasion isn't going to change him. When the president and half the Senate ask and you don't see it, what is going to change it is financial pressure and that could come from the trademark decision or it could come through the FCC or it could be that too many broadcasters just agree not to use it."