This is an excerpt from the University at Buffalo Sports Law Forum. For more legal articles from the sports world, visit here. Week two of the XFL, Deondre Francois takes the huddle. It has been a long journey for him to be in this spot, right here. Francois began his collegiate career for his home state Florida State Seminoles. He was a four-star recruit, set to be the heir to first overall pick, Jameis Winston. Fitting the script, Francois led a 22-point comeback in his Redshirt Freshman debut, throwing for 419 yards and two touchdowns. In that season, he led the Seminoles to a bowl appearance with an impressive 10-3 record, and the award of ACC Rookie of the Year. But the following season, Francois went down. In the opener, Francois suffered a patellar tendon injury, sidelining him for the season. When Francois came back, he was not the same. Francois lost more games than he won and correspondingly put up worse stats. That season would be his last for Florida State, but not for his play on the field. Video surfaced that seemed to show Francois threatening his girlfriend. Along with the video were allegations of other domestic violence. No charges were filed, and the post was deleted, but Francois was dismissed from the program. He sought to stay in his home state of Florida and follow head coach Lane Kiffin to Florida Atlantic University. However, it did not materialize, and Francois became a graduate transfer for Hampton, an HBCU. A lackluster final year did not propel Francois back into the NFL conversation. But, he did not let go of the dream. Francois played in the Fan Controlled Football League and The Spring League with mild success. Finally, in 2022, the Orlando Guardians, playing in Francois’ hometown, drafted him. With the XFL’s partnership with the XFL, and the 54th man branding, Francois is the closest to the league he has ever been. With a tumultuous journey behind him and a life-changing opportunity in front of him, Deondre Francois takes the huddle. “Shut the f*** up,” Francois says to cut off the chatter of his teammate. The microphone attached to the players catches everything said in the huddle and makes its way onto the broadcast. Francois was in a highly stressful situation, and the microphone picked up on the manifestation of that stress. And in fact, that is the theory of the design. The entertainment value is in how these athletes respond to highly stressful situations. And oftentimes, cursing goes hand in hand with high levels of stress. Other high stress occupations such as sailors and kitchen workers are known for their creative vocabulary. Additionally, Francois is not alone in putting swear words over the airwaves. Fellow Quarterback Ben DiNucci can be heard repeating, “Are you f****** serious?” after throwing a 65-yard game-winning touchdown. However, this was a week after Francois’ incident, and the broadcast was able to cut the swear words out of the audio. Although, the successive broadcasts have not always been as successful, allowing occasional curses through. Is the XFL legally allowed to air curse words? Currently, 18 USCS § 1464 criminalizes the exposure of obscene, indecent, or profane language over radio transmissions. Recall the infamous “Seven Words You Can’t Say On TV” comedy bit by George Carlin. In it, Carlin lays out many words that may or may not be considered obscene but lists seven that he thinks have no connotation that would make it permissible to air on television. Parallel to Carlin’s analysis, the context in which the words are spoken is vital to whether it can be construed to be indecent. If the word appeals to the prurient (sexual) interest of the audience, it is likely to be found to be obscene. If the word is interpreted to be patently offensive as judged by the contemporary standards of the time period, it is indecent. And, if the word is a spoken curse of divine vengeance or implies divine condemnation, it is profane. Carlin’s comedy bit did more than raise a cultural question; it raised a political one. The Supreme Court ruled over whether “Seven Words You Can’t Say On TV” is allowed to be air on the radio. The Federal Communications Commission (FCC) and the radio station that aired the bit (Pacifica) were in a legal battle over whether the speech ought to be protected by the 1st amendment. The FCC won in a narrow 5-4 decision, that was controversial when it was made, and still is controversial to this date. The FCC is permitted to censor speech that is indecent. It was indecent because it did not conform with standards of morality. The FCC is allowed to censor that speech on the reasoning that a person’s right to be left alone supersedes the 1st Amendment. Offensive, shocking, and vulgar language do not receive absolute protection under the 1st Amendment. The FCC’s jurisdiction only covers over-the-air transmissions, which use the publicly owned spectrum to broadcast. Channels such as NBC, CBS and ABC are subject to the FCC. Cable service channels, such as ESPN and FX, do not fall under the purview of the FCC. Because cable companies are privately operated and independently purchased, they exist outside of the FCC governance. This season the XFL has aired games on ABC, ESPN, ESPN2, and FX. So, wouldn’t that mean ABC would be held responsible for swear words because they are the ones putting it on TV, similarly to that radio station? The answer hinges upon ABC’s relationship with the XFL. First, the words, spoken in the huddle by Francois, aired on ESPN. Because the governmental oversight over profane language does not extend to cable channels, this analysis focuses on if the scenario happens on ABC. That being said, ABC is vicariously liable for the XFL’s FCC infraction, from the doctrine of respondeat superior, if a court determines that they have an employer-employee relationship. However, if a court finds that the players’ utterances are those of independent contractors, then a higher standard of recklessness is needed to hold ABC liable. In the latter case, ESPN would have to know and disregard precautions to prevent indecent material to make the broadcast. Given other hot mic situations in sports, it is likely that ABC would have the knowledge requirement for recklessness. The actions taken by the broadcast company to censor indecent speech would answer if they had been reckless or not. Does a one-off incident of a curse word really constitute an FCC violation? In the past, a fleeting expletive would not have constituted a violation. But the FCC updated its policy to cover fleeting expletives. The reasoning was to protect children from encountering the words, because even the introduction of a word can lead to its widespread use. The FCC derives its power from the legitimate state interest of protecting the morality of children. Its decisions to censor speech come exclusively during hours where children could be watching. An example was the censoring of a political ad that featured a full operation of an abortion that aired in the afternoon. Had the ad aired after midnight it would not have been censored (the window for FCC regulation lays between 6 AM and 10 PM). The FCC updated its policy around the time that Janet Jackson’s breast was exposed in the Super Bowl. Although it was only shown for nine-sixteenths of one second, it was a violation under FCC policy. However, because of the timing of the FCC policy, the broadcast company did not have appropriate notice of the policy change and holding the company liable would be an arbitrary and capricious state action. Given the modern standard, the fleeting instances of expletives or indecent speech would be a violation. Though, that does not necessitate fines from the FCC. Such factors that the FCC considers in their investigation are: “nature, circumstances, extent, and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.” What can the XFL do to avoid fines? Most broadcasts run on a delay of a few seconds. The XFL’s broadcast is not an exception. The usual five to seven second broadcast delay can give soundboard operators enough time to catch an expletive in time and cut the audio for the TV broadcast while it is being said. This happened during Ben DiNucci’s touchdown celebration. The soundboard operators were able to perfectly cut the audio of DiNucci’s expletive without disturbing the audio as a whole. However, the process is not always this clean. Sometimes entire seconds of full audio have been cut, leaving an awkward experience for the viewer. Other times, the operators cannot catch the expletive in time, and it makes the broadcast. To ameliorate this process, the XFL could do two things. First, they can increase the broadcast delay to allow for more time to catch all expletives and more efficiently trim the audio to only cover the unallowed utterances. The second option is to use a soundboard mixer that allows for the cutting of individual audios. That way only player microphones are cut off, without disrupting the entire sound of the broadcast. Although these options involve other complications, such as deviations from industry norms and a need for additional technological equipment, the use of one or both of these methods will greatly reduce the probability of FCC fines while maintaining the integrity of the broadcast. If ABC does get hit with fines from the FCC, executives may urge the XFL to drop the live microphones altogether. So far, the immersion of the viewer into the gameday experience has been revolutionary. The live microphones have added a unique element to the product and innovation like this is only helping the consumer. Hopefully the XFL can navigate the regulations without incurring heavy fines and without scaling back what makes the product so great. References: 18 USCS § 1464 FCC v. Fox TV Stations, Inc., 556 U.S. 502 (2009). CBS Corp. v. FCC, 663 F.3d 122 (3d 2011). FCC v. Pacifica Found., 438 U.S. 726 (1978).
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