No Action Against Colbert

Photograph: Michael Loccisano/Getty Images

The Federal Communications Commission has announced that there was "nothing actionable" about Stephen Colbert's off-color joke about Donald Trump and Vladimir Putin, which is no surprise.

Read on for an explanation of why.


These shows are always recorded earlier in the evening. The joke, told to the studio audience May 1, included an sexual innuendo, but the most offensive word was bleeped out for the national broadcast.  Hoards of conservatives complained to the FCC , which is easy to do online.

Everybody who knew how the FCC works expected the decision.

It is a violation of federal law to broadcast obscene programming over-the-air at any time. Indecent or profane programming MAY be broadcast after 10 pm between 10:00 p.m. and 6:00 a.m., local time.  This rule has never applied to able and satellite channels -- just over-the-air "free" radio and TV.

Here is how the FCC defines obscene, indecent and profane content:

Obscene content does not have protection by the First Amendment.  For content to be ruled obscene, it must meet a three-pronged test established by the Supreme Court: It must appeal to an average person's prurient interest; depict or describe sexual conduct in a "patently offensive" way; and, taken as a whole, lack serious literary, artistic, political or scientific value.

Indecent content portrays sexual or excretory organs or activities in a way that does not meet the three-prong test for obscenity.

Profane content includes "grossly offensive" language that is considered a public nuisance.

The on-air broadcast version of Colbert's joke certainly did not meet the obscene content definition.  Even if it had not been bleeped, it was after 10 PM and thus was allowed under the safe harbor provision.