On July 26, 2001, Howard Stern asked a male staff member what the sexual term "blumpkin" meant (thesmokinggun.com). In Richmond, Virginia, high school girls called into the "Elliot in the Morning" show to talk about their sex lives (Maynard). On May 28, 1998, radio jock Bubba the Love Sponge aired a discussion between him and a cartoon character (fcc.gov). He asked the character to describe the perfect woman and her genitals. The First Amendment didn't protect these radio jocks. All were fined for their broadcasts and these were not the only broadcasts they were fined for. "Freedom of speech" is three small but powerful words. They are simple words. Each can be defined in five words or less. But this is America and simple doesn't exist. Words and images can be bought, sold, manipulated, regulated, and destroyed. And the battle against broadcast indecency proves words and images are merely government property.
The Federal Communications Commission is the government agency that has been watching our airwaves since 1934. The agency was originally the Federal Radio Commission (Campbell 118). In 1927, Congress passed the Radio Act of 1927 stating licensees did not own their channels. They had to serve the "public interest, convenience, or necessity" (118). Today the FCC is responsible for "interstate and international communications by radio, television, wire, satellite, and cable" (fcc.gov). The FCC is headed by five commissioners, all appointed by the President and then approved by the Senate. One commissioner is chosen by the President to be chairperson. Our current FCC chairperson is Michael Powell. Three commissioners may be members of the same political party. The FCC houses six bureaus and ten offices. It is important to know the FCC does not have any jurisdiction in print media. Print media has no government agency regulating their industry.
In the March 2004 issue of Seventeen Magazine, 15-year-old Linze from San Antonio, Texas asked the magazine for help. They printed her question under the heading "Oral Report."
Now imagine this question asked on television or radio. With the new proposed fine changes broadcasters could be fined a maximum of $3 million. Seventeen Magazine is allowed to print this because there is no government agency policing them. If they wanted to they could print the indecent things Howard Stern says on his radio show and higher powers could not intervene. There is a different standard for print media and broadcast media.
The First Amendment has different levels of protection for different mediums. Two court cases - Red Lion Broadcasting Co. v. FCC in 1969 and the Miami Herald Publishing Co. v. Tornillo in 1974 - demonstrate the difference between print and broadcast media (Campbell 561). In the Red Lion Broadcasting Co. case, Reverend Billy James Hargis attacked Fred Cook on the Pennsylvania radio station. Fred Cook was the author of a book that criticized Barry Goldwater, the Republican presidential candidate in 1964. When Hargis made the attack, Cook asked all the stations that broadcasted Hargis to give him airtime. The Red Lion station would only sell him airtime. The FCC asked Red Lion to give him free airtime, but they responded with the First Amendment. They claimed they had the right to decide what to air. The Supreme Court ruled in favor of Cook and the FCC. The Radio Act of 1927 made licensees liable if they did not service the "public interest, convenience, or necessity" (Campbell 118). The Supreme Court said public interest was "paramount" over broadcaster's rights (118). If someone was attacked, the attacked has a right to respond. Because of the scarce space on radio frequencies, according to the Supreme Court, they had to ensure all voices were heard. Just five years later in the Miami Herald Publishing Co. case, political candidate Pat Tornillo Jr. requested space to respond to an editorial opposing his candidacy (561). Florida had just passed a right-to-reply law, allowing candidates to respond to newspaper editorials. The Supreme Court sided with the newspaper and also deemed the right-to-reply law unconstitutional. The Supreme Court, unlike in the Red Lion case, upheld the First Amendment. It protected the right of the newspaper to publish what they wanted. Print media are protected under the First Amendment because they are not licensed enterprises. Television and radio stations must ask for a license to get space on the frequency. The FCC is the only government agency to obtain licenses. Since they are granted their license, the FCC rules must be followed or they get their license taken away. Since space on the frequency is scarce, this license is a privilege, not a right. Because of space, the First Amendment doesn't protect broadcast media. Along with regulating space, the FCC also regulates language.
At 2 o'clock in the afternoon, New York radio station WBAI aired an excerpt from George Carlin's comedy album (Campbell 564). They played a 12-minute monologue about the seven dirty words that could not be said by broadcasters - Shit, Piss, Fuck, Cunt, Cocksucker, Motherfucker, and Tits (Erenkrantz). That afternoon a father was with his 15-year-old son when he heard the broadcast. He filed a complaint with the FCC who issued a citation to the station. The U.S. Supreme Court upheld the FCC action in 1978, by a vote of 5 to 4, ruling that the routine was "indecent but not obscene." They stated that the FCC had the authority to prohibit such broadcasts during hours when children were likely to be among the audience. Indecent broadcasts are restricted between 6 A.M. and 10 P.M. And the First Amendment protects indecent broadcasts. So then what is the difference between obscenity and indecency?
The Parent's Page on the FCC website attempts to define obscenity, indecency, and profanity (http://www.fcc.gov/parents/). The First Amendment does not protect obscenity. As defined by the Roth vs. United States case and the Miller vs. California case, obscene work must meet a three-prong test:
1. An average person, applying contemporary community standards, must
find the material, as whole, appeals to prurient interest
2. Material must depict or describe, in a patently offensive way, sexual conduct
3. Material, as a whole, must lack serious literary, artistic, political, or scientific
The FCC defines indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities" (http://www.fcc.gov/parents/). Indecency is not obscenity. The difference is the third criteria of obscenity - indecency can have social value. So all it takes is one unhappy listener or viewer. Then the government will have the final say if the broadcast had any value. Profanity is defined as "language that denotes certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance" (http://www.fcc.gov/parents/). Profanity is also restricted between 6 AM and 10 PM. The FCC definitions are vague and confusing. Pretend for a moment the censors were accidentally turned off - take a contestant on a reality show who just lost a mission. He throws down his arms and yells, "Shit - fuck you." He is not directing his moment of anger at anybody. Fuck can be a sexual term but clearly in this case he did not mean it in a sexual way. A man is expressing his feelings with the first words that came to his head. Who is anyone to say it doesn't have artistic value? And if we always equate anger with violence everyone would be fined and no one would be on television or radio. Several incidents over the past year have tested these FCC definitions and proven that even the FCC can't even figure out their own rules.
On the 2003 Golden Globes, U2's Bono said, "This is really, really fucking brilliant" when he went on stage to accept an award. In October, after a formal complaint from the Parents Television Council, the FCC dismissed the Bono incident. According to the FCC, the incident was not indecent because Bono did not say it in a sexual connotation. The incident was not even noted as profane by the FCC (ABC 13). On March 18, 2004, five months later, the FCC overturned the ruling (Salant). Bono's use of the F-word was now indecent and profane. This is another consequence from the Janet Jackson fallout - the FCC now says any use of the F-word is considered indecent. NBC was not fined, but the FCC put out notice any future use of the F-word would result in fines and possible license revocation. The FCC couldn't stand behind its initial ruling and crumbled under pressure. What's worse is the FCC is now ruling on verb usage of a word. So if Bono said, "This is better than being fucked" the FCC would have fined NBC the day after the broadcast. Now Bono's "fucking brilliant" is somehow sexual and lacks serious value. Bono was simply expressing his happiness. The Janet Jackson malfunction has stirred a quiet war in the broadcast industry.
The FCC has yet to fine CBS stations for carrying the Super Bowl. Janet Jackson's right breast broke the camel's back. Three days before the halftime show, MTV News reported "Janet Jackson's Super Bowl Show Promises Shocking Moments." Today you will find a dead link to the article. But after a thorough search through another link, the article still exists and something has been added. The editor's note denies any previous knowledge and claims they thought the 'shocking moment' was Justin Timberlake's surprise appearance. Janet Jackson, Justin Timberlake, and MTV apologized to the public, all claiming they didn't know or didn't know it was going to happen the way it did. But while they simply only suffered public scrutiny so far, other broadcasters especially in radio have been hit. The 2004 Golden Globes on NBC was on a 10-second delay. The Oscars on ABC was on a 7-second delay. According to Howard Stern, he is hit with several delays - first by his general manager at the New York station, then by individual stations, and then another by Infinity and Clear Channel. Under pressure by Congress, the Federal Communications Commission also had to respond.
At hearings on February 11th and 12th, each commissioner promised to "protect the children" (fcc.gov). The Federal Communications Commission has no problem using the First Amendment and children as their defense. On one of many meetings after the Super Bowl, Chairman Powell claimed their authority was "consistent with the First Amendment." Commissioner Kathleen Abernathy brought up a study conducted by the Henry J. Kaiser Family Foundation in 2003 called "Zero to Six: Electronic Media in the Lives of Infants, Toddlers and Preschoolers". She mentioned children "are immersed in today's media world, and a vast majority of parents have seen their children imitate behavior they have seen on television" (fcc.gov). The parents ultimately have the last word in their homes. So why is it a broadcaster's problem if the parents cannot regulate their children's television viewing? They randomly surveyed 1,000 parents with children from age zero to six (Kaiser.org). 99% of their homes had at least one television and 36% had a television in the child's bedroom. When they are too busy with something else, 45% of them allow their children to watch television on their own. 62% of these children are changing the channels on their own. People complain about television and radio broadcasts after the fact. The FCC should be promoting prevention and intervention in the home. The government doesn't regulate what a child is eating. The government doesn't have rules on the way a child should dress. What if the government regulated everything our children do? The parent's responsibility is supreme and that has not been recognized in these recent indecency hearings. A Florida lawyer told the Catholic Parents Online, "On a daily basis, Howard Stern mentally molests literally hundreds of thousands of children who can listen to his show and hear these inappropriate, illegal and indecent comments" (Cowan). Howard Stern has been the "sacrificial lamb" of the FCC and George W. Bush (Davis).
On February 24, 2004, Clear Channel suspended Howard Stern's syndicated radio show from six markets. This came 23 days after the Janet Jackson incident and a day before congressional hearings on broadcast indecency. Clear Channel deemed the show on the previous day indecent. Howard Stern interviewed Rick Salomon, the man in the Paris Hilton sex tapes, about his days with the heiress and other celebrities. Everyday since then, Howard Stern has slammed Bush, the FCC, and Clear Channel on his show. On a recent show, he said, "I'm on the air for them 10 years - and one day they woke up and decided I was indecent?" He claims the three are working together to kick him off the air. And his claims aren't unfounded. The connections between the three are surprising. Bush appointed Michael Powell to the highest seat at the FCC. Michael Powell is the son of Colin Powell, the current Secretary of State. Clear Channel executives have close ties to Bush and the Republican Party. Tom Hicks, Vice Chairman, bought the Texas Rangers in 1998 from then-Governor Bush, putting $250 million his way. Lowry Mays, Clear Channel CEO, donated over $100,000 to the Republican Party. Lowry Mays' son Mark Mays, Clear Channel president and son Randall Mays, financial operating officer, all made donations. Clear Channel's political action committee gave 77% of their federal contributions to the Republicans. Clear Channel is also the major contributor of "Rally For America" (buzzflash.com). The group organizes pro-war rallies all over the country, sponsored by local radio stations conveniently owned by Clear Channel. Executive vice-president Andrew Levin told USA Today, "These gifts reflect a fact of political life - that companies tend to favor the party in power" (Hopkins). Clear Channel pulling Howard Stern off the air is more than about money; it is to protect Bush and the Republican Party. In 2001, ads sponsored by the Democratic National Committee were pulled off the air in Jackson, Mississippi (Brown). In 2003, Clear Channel stations across the country took the Dixie Chicks off their play lists (Fitzgerald). In a London interview, lead singer Natalie Maines said the group was ashamed their President was from Texas. Howard Stern has every right to be afraid and suspicious - Bush and his friends are the indecency police. And it's election year - they want your vote. In the 2000 presidential election, the Nader vote cost Gore a possible victory in two states (Cook). In 2004, the Howard Stern vote might cost Bush reelection (mtv.com). There is no official number, but Howard Stern has claimed he has 8 million listeners (mtv.com). So if it is the children we are protecting, why did the Republican Party accept $3.2million from cigarette giant Phillip Morris (Jackson)?
On March 11th, 2004, the House of Representatives passed the Broadcast Decency Enforcement Act by a vote of 391-22 (pbs.org). The act raises fines for broadcasters from $27,500 to $500,000. For performers, the fines are raised from $11,000 to $500,000 as well. In a given 24-hour period, a broadcaster could be fined $3 million. After three indecency violations, a hearing would be held to decide whether or not the broadcaster's license should be revoked. The bill is on its way to the Senate. The FCC proposed a $495,000 fine against Clear Channel for a Howard Stern show from April 9, 2003. The fine is actually $27,500 for 18 violations on 6 Clear Channel stations. Clear Channel decided to drop Stern from the six stations. These are only temporary solutions. Once Howard Stern is gone, another one will take his place.
I've listened to Howard Stern since high school. It wakes me up in the morning and I always get a good laugh. I think I'm a decent human being. Unlike the women on the show, I am not a sex-maniac nor do I want plastic surgery done on my loved ones. I don't care much for the racist jokes or female degradation. I don't aspire to be on the show. When I'm offended, I just turn it off. Instead of trying to be these almighty guardians of the First Amendment, the FCC should be reminding viewers who complain there is the on and off button. One complaint can start months of investigation like in Howard Stern's case. Our tax dollars are being spent on this when all this one complainer had to do was turn it off? No one forced anyone to purchase a television or a radio. And there are over a 100 channels to choose from on each medium. The FCC says these broadcasters are in violation. But the FCC is in violation of the First Amendment. The complainers are happy, but who is there to protect the willing listeners? Can I sue the complainer for violating my right to listen to Howard Stern? If the government is asking for human decency, I want to ask the government for common sense. Freedom of speech also has a friend - freedom of choice. I thought democracy meant a diversity of voices. But if democracy means censorship then the whole system should be thrown out.
There's something in common in these indecency cases - sex. My parents always say, "You'll know when you have kids of your own." I will protect my children. But the government shouldn't be coming into my home and telling me what is good or not good for them. If my child watches two people having sex and asks me about it, I will be glad to explain it to them. Parents should not be afraid of an open discussion. Children aren't going to be scarred over a breast. Children will not have 'anal sex' just because they heard the words on radio. Howard Stern isn't the devil exploiting the children or corrupting society. If Howard Stern is "mentally molest[ing]" children, so is Britney Spears, George Bush, Eminem, Rush Limbaugh, and Johnny Knoxville - one likes to pose nude on magazine covers, one has a drunk driving record, one raps about killing women, one is addicted to drugs, and one likes to eat feces. This is our democracy and we are going to have to tolerate it.