After Stephen Colbert made a joke on The Late Show about President Trump performing fellatio on Russian leader Vladimir Putin, many across the political spectrum took to social media to call for CBS to fire Colbert.  Colbert remains unapologetic about the joke.  He stands by his right to make vulgar jokes, even to criticize the President, and noted in a later monologue that “anyone who expresses their own love in their own way is to me, an American hero.”  (He did, however, say that some of his terms were “cruder than they needed to be.”)

The Federal Communications Commission, charged with regulating television communications, has begun an investigation into Colbert.  According to FCC Chairman Ajit Pai, the investigation is a response to complaints about Colbert’s monologue, where he said the only thing President Trump’s “mouth is good for is being Vladimir Putin’s c—holster.”   This investigation, while perhaps politically savvy given viewer complaints, will not uncover any speech that is not protected by the First Amendment.  Further, the investigation itself may be a First Amendment violation.

The FCC regulates indecency and profanity only between the hours of 6 am and 10 pm.  This time frame is based partly on Supreme Court precedent, which allows the regulation of profanity only as a time, place, and manner restriction based on when children are likely to watch television.  After 10 pm, when The Late Show airs, Colbert’s vulgar joke is protected by the First Amendment and Congressional rules unless the speech rises to the level of obscenity.

Speech that is unprotected obscenity must depict sex in a patently offensive way and lack any serious scientific, literary, artistic, or political value.  Most pornography doesn’t even meet this standard (and is thus protected speech).  Although Chairman Pai claims that the FCC will apply the relevant facts and law in its investigation, it must be obvious that Colbert’s monologue consisted of clearly protected speech.  Pai may simply be following the process for dealing with complaints, but if a true investigation is launched, that will likely be impermissible.

Because Colbert’s joke so obviously cannot subject The Late Show to any legal sanctions, an investigation itself may be a violation of Colbert’s First Amendment rights.   The courts of appeals are divided on the extent to which the government can launch an investigation based on the protected speech of the investigation’s target.  However, this division concerns only investigations into actual illegal conduct that might have been perpetrated by the speaker, and the speech seems to inculpate the target.  (For example, if someone engages in speech radically criticizing law enforcement, can she be investigated for an act of violence against the police that may have been hers?)  If an investigation is launched solely because of the viewpoint expressed in the speech, that investigation violates the First Amendment.  Even if the speech, or the investigation’s target, are never punished, an investigation itself is costly and embarrassing and may chill speech.  The government is basically never allowed to target private, protected speech based on the viewpoint of that speech, even simply to investigate the speech.

Given the obviousness of the speech’s protected status, and the fact that the speech involved criticism of the President, any real investigation may very well be based on the anti-Trump views expressed in Colbert’s monologue.  Further, even if the investigation is due to the perceived homophobic nature of the speech, that is still an impermissible viewpoint-based targeting of the speech.  Whatever your view of whether the joke was homophobic – and whether this type of crass humor is funny regardless – an investigation into speech that reflects homophobia on the part of a late-night comedian is not a legally permissible investigation.

In order to protect First Amendment rights, courts have also created rules that prevent government officials from having too much discretion to target viewpoints they dislike.  Thus, open-ended rules in contexts such as parade-licensing or park permits are deemed unconstitutional, if they allow a government official to grant permits based on the viewpoint of the parade organizers.  Even if a rule does not, on its face, target impermissible viewpoints, if the rule allows government officials too much discretion to target viewpoints, the rule is often struck down as a free speech violation.

The FCC hardly ever investigates indecent speech uttered in the “safe harbor” of the late-night hours.  President Trump’s FCC may be taking advantage of the fairly amorphous obscenity rules to launch what is likely an unconstitutional investigation into speech that happens to be offensive to some and critical of the government – the exact speech that warrants the greatest First Amendment protection.

I tend to prefer Jon Stewart’s more nuanced, less obviously partisan style to Stephen Colbert’s aggressive humor.  Colbert’s edgy humor and unflinching style, however, are a good match for President Trump’s efforts to undercut First Amendment rights.  I hope great things come from this match-up.