GOP Senate candidate to run 'Let's go Brandon' ad during Super Bowl

[SunSeeker]

68. Yes they can. Read the 1984 Luken Memorandum.

Your 1978 FCC administrative opinions predate the FCC's Luken Memorandum, and are from an era when the racist, sexist FCC ruled the n-word was not obscene, and thus racist candidates could readily use it in their advertisements. Times change.

In 1984, Congressman Thomas A. Luken raised the potential statutory conflict between section 1464 and section 315. Specifically, Luken requested a ruling advising what the legal duties of broadcast licensees were when a political candidate, pursuant to her section 312(a)(7) and 315 rights, requested air time for an advertisement containing either obscene or indecent material. In a memorandum drafted in response, then-FCC Chairman Mark Fowler analyzed both the legislative history of section 315 and the canons of statutory construction. The Chairman first concluded, based on a reading of the legislative history of section 315, that Congress did not intend the section to confer immunity on candidates for federal office from obscenity or indecency laws. (See page 4, Memorandum to Letter from Mark Fowler, Chairman, FCC, to Hon. Thomas A. Luken, U.S. House of Representative (Jan. 19, 1984) ["Luken Memorandum"], on file with Commlaw Conspectus.) This was supported by the deletion from the original bill of an amendment which relieved licensees from liability for any uncensored material that violated criminal laws. (Id. at 3-4.)

Second, Chairman Fowler concluded that the canons of statutory construction supported the determination that section 315 should not be interpreted to supersede section 1464. To do so, the Chairman stated, would render an unreasonable result, i.e., granting an exemption from the federal Criminal Code to broadcasters and political candidates under section 315 for content, which by definition, lacked serious political value. (Id. at 5-6.) In determining that section 315 did not grant immunity from the provisions of section 1464, the FCC stressed that "the exclusion of obscene or indecent speech does not violate Section 315's purpose of fostering political debate. The spirit of Section 315 is uncompromised by reading Section 1464 as an exception to Section 315's no-censorship provision." (Id. at 6.)