May 3, 2004
WE OWN THAT MICROPHONE:
Fighting for Free Speech Means Fighting for . . . Howard Stern (ADAM COHEN, 5/03/04, NY Times)
Legal rulings about indecency have a way of quickly slipping into ridiculousness, and so it is with the Federal Communications Commission's recent decision imposing $495,000 in fines on Clear Channel for broadcasting an episode of the Howard Stern show. The F.C.C.'s opinion focuses on a program in which the self-proclaimed "King of All Media" interviewed the inventor of "Sphincterine," which the commission huffily calls a "purported personal hygiene product." A key factor in its analysis, duly noted in its "Notice of Apparent Liability for Forfeiture," was that the segment contained "repeated flatulence sound effects."Call it the whoopee cushion doctrine. It is hard to believe that the government now regards flatulence jokes, the lamest staple of gag gift stores, as grounds for taking away a broadcast license. But since Janet Jackson's unfortunate wardrobe malfunction, the F.C.C. has been furiously rewriting the rules. Another edict holds that broadcasters can lose their licenses even for "isolated or fleeting" swear words, a doctrine arising from a single gerund uttered at the 2003 Golden Globes.
Don't bother calling the commissioners philistines — they do it themselves. In the Golden Globe ruling, they admit their definition could put D. H. Lawrence and James Joyce off limits. Not surprisingly, though, the F.C.C. has started with Mr. Stern. He has long been a favorite target; more than half of the $4.5 million in fines the F.C.C. has imposed since 1990 has been on him. The payments were once just overhead for his highly profitable show, but with the fines soaring, and broadcast licenses at far greater risk, the economics are dramatically changed. After the $495,000 fine, Clear Channel dropped Mr. Stern from its six stations. He remains on 35 other stations, but no one can say for how long.
It would be hard to quarrel with a broadcaster that dropped Mr. Stern on grounds of taste. Turn on his show or pick up his biography, "Private Parts," and choose your reason, from his peculiar fascination with the sex lives of dwarves to his on-air interrogation of his mother about her sex life. But government fines, not high standards, spurred Clear Channel.
It is Mr. Stern's offensiveness that makes his cause so important. The F.C.C. is using his unpopularity as cover for a whole new approach that throws out decades of free-speech law. The talk right now is over the colorful battles between Mr. Stern and Michael Powell, the head of the F.C.C. But when the headlines fade, the censorious new regime will apply to everyone. The danger it poses to the culture is real.
Apparently the notion that fart jokes, Joyce, and Lawrence would be banned is an argument against the decency rules? Mr. Cohenb might take note of the fact that since being forced to clean up his act a little Mr. Stern's ratings have gone up, not down, suggesting that the citizenry is happy with such rules. Posted by Orrin Judd at May 3, 2004 9:19 AM
Don't you regard the improved ratings more as a gesture of established fans rallying around their guy rather than Stern winning new fans with his cleaner show?
Posted by: Matt C at May 3, 2004 10:58 AMThe controversy itself in all probabiliy caused the ratings bump, just the way all-news and talk stations bumped up in the months following 9-11 (when Stern lost his AM ratings lead to all-news WINS). How his ratings hold up through the summer ratings book if he continues his John F. Kerry Love Festival remains to be seen.
Howard's sudden role as the canary in the First Amendment coal mine is self-serving, of course -- he actively and successfully worked to lobby his boss Mel Karmazan to censor rival shock jocks Opie and Anthony from mentioning his name on their show two years ago, and then celebrated their departure from the airwaves over the St. Patrick's Cathedral sex stunt scandal by saying they had gone too far. His last statement is what both sides have to come to some agreement on; just what is "too far" for commercial radio. Obviously Stern and his supporters don't think he has, but they'll eventually have to say where the line should be drawn, or if they think it shouldn't be drawn at all (which would theorhetically open the airwaves to Air Hitler, all-jihad radio, or something equally as suspect turning up on some low wattage stations in the future).
Posted by: John at May 3, 2004 12:42 PMSo, let's review.
It's a federal crime to have beliefs that precede an already-illegal crime such as murder ("hate crime"); but it's not a federal crime to actually open one's mouth, spew garbage out onto the public airwaves -- which are supposedly owned by the people and regulated by the FCC on our behalf -- and then demand that we tolerate it on free speech grounds.
Would all of Stern's supporters march downtown if it were David Duke instead?
Stictly as a legal question -- and I'm no lawyer, nor do I play one on TV -- the First Amendment doesn't apply to broadcasting, correct? So how is it a free speech issue to begin with? Is there legal precedent for such an argument?
Jeff -- I understand why you think that, but the First Amendment applies fully to broadcasting. The Courts have allowed greater scope for regulation because of outdated and wrong ideas about the nature of broadcasting.
Posted by: David Cohen at May 3, 2004 5:13 PMDavid:
Not fully. You can't just start broadcasting, you need government permission. Hard to call it free speech if it's licensed.
Posted by: oj at May 3, 2004 5:21 PMFor what it's worth ... my original question was apparently a little too broad; the FCC website says:
It is a violation of federal law to broadcast obscene, profane or indecent programming. The prohibition is set forth at Title 18 United States Code, Section 1464 (18 U.S.C. § 1464).
It goes on to give definitions for "obscene", "indecent" and "profane", which obviously leaves wide latitude for interpretation by the courts. Programming deemed "obscene" is not protected by the First Amendment; the other types are protected but restricted to hours when kids are unlikely to be in the audience.
So now we get to argue as a nation about whether "sphincterine" and "salad tossing" meet the definition of indecent or not. Interesting issue to get all atwitter about. While we discuss this riveting topic, how many of our brain cells die off naturally, and how many commit suicide?
Posted by: Jeff Brokaw at May 3, 2004 6:33 PMOJ -- You can't start up a newspaper and call it the New York Times, either.
Jeff -- The general rule is that obscene speech is not protected. That's not a special rule for broadcasting.
Posted by: David Cohen at May 3, 2004 6:46 PMHow much permission does one need to transmit over cable, or satellite TV/Radio?
On current trends, the FCC will be policing what people neither watch nor listen to.
Posted by: Jeff Guinn at May 3, 2004 8:49 PMAin't that the truth.
Posted by: John Barrett Jr. at May 3, 2004 9:51 PMOJ: Right. But the license requirement stems from the perceived need to regulate the spectrum so that one station doesn't block out another, or one use block out another.
On the other hand, if we sue a broadcaster for libel, the New York Times standard applies.
Posted by: David Cohen at May 4, 2004 2:30 PMDavid: Isn't prior restraint the greatest form of speech restriction?
Posted by: oj at May 4, 2004 2:35 PMI have never heard Stern so have no opinion about that.
However, you are not compelled to consume everything on offer.
Posted by: Harry Eagar at May 5, 2004 11:49 PMNor is society required to make it all available on offer.
Posted by: oj at May 5, 2004 11:54 PMIf a society is free, it does not put anything on offer, its various members do.
If somebody decides what's to be put on offer, it's still a society but it has stopped being free.
Posted by: Harry Eagar at May 6, 2004 2:17 AMHarry:
Yes, that's the utopian libertarian vision that dupes fall for. Unfortunately, the test runs in Somalia and elsewhere aren't working out as well as hoped. It is instead precisely when individuals give up liberties that a society is created. Freedom is a means to a decent society but can never become the end.
Posted by: oj at May 6, 2004 8:08 AM