Articles are now appearing that the FCC is going to be going after stations carrying the nation’s shock jocks, including Howard Stern. In fact, he is going to be the organization’s number one target, which isn’t surprising because he is the number one rated shock jock in the nation.
The FCC is also lobbying for setting higher fines, a move that the Public Relations Society of America believes could impact on First Amendment’s freedom of speech unless the FCC also provides more explicit guidelines about what is ‘obscenity’:
“The problem is that the FCC never has spelled out what’s permissible and what’s not permissible,” said Reed Bolton Byrum, APR, immediate past president of PRSA. “‘When in doubt, leave it out’ cannot be an acceptable policy in a democracy that depends on free and open discussion. And, if we start losing small, independent broadcasters because they can’t afford the risk of getting fined on some arbitrary application of a vague standard, all we’ll have left are a few big media companies. And the fewer entities there are, the easier it will be to control them.” “As Supreme Court Justice Potter Stewart once observed, ‘Censorship reflects society’s lack of confidence in itself,’” Byrum added.
To underscore the vagueness of the FCC regulations, PRSA pointed to the widely publicized use of the “F” word by rock star Bono in a live broadcast on an awards program. The FCC ruled that was not obscene because it was just an epithet and not a reference to a sexual act and did not impose a fine. In the wake of the recent imbroglio, FCC Chairman Powell says he thinks the commission erred in that decision.
Unlike Canada’s Broadcast Standards, which provide specific detailed information about what is and is not permissible (such as derogatory material based on race or sex), the FCC’s guidelines have been kept deliberately vague, relying on each community to determine what is or is not obscene in their area. The only law specified is the following:
Obscene speech is not protected by the First Amendment and cannot be broadcast at any time. To be obscene, material must meet a three-prong test:
An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
The material, taken as a whole, must lack serious literary, artistic, political, or scientific value.
The average person in this country doesn’t even know what prurient means, much less have the ability to objectively define the artistic value of any given material. However, this definition was not derived by the FCC–it is from two rulings by the Supreme court based on landmark cases: Roth v. United States and Miller v. California. It is the second case where the three-prong approach to judging obscenity arose; a measure to allow individual communities to set their own standards, but unfortunately, leaving a great deal of vagueness in the interpretation. (More at the First Amendment Center.)
(As a side note, I don’t agree with the new FCC fines and feel they are an election year gambit, and that they are going to adversely impact on broadcast television and radio. However, by taking such a foolishly extreme measure, I think this action will backfire and eventually this issue will most likely appear back in the Supreme Court, primarily because of the vagueness of the wording, and the extreme nature of the penalities. In addition, this is further complicated by the FCC allowing mergers that are putting most of the broadcast media into the control of large media corporations. Personally, I think this is a greater violation of the public’s right to an unfettered and free media than the obscenity laws.)
As coincidence would have it, Howard Stern’s movie Body Parts was on cable last night and I watched it. It was an interesting flick and I liked how the movie managed the seque between scenes. It also provides some insight into Howard Stern’s head. He at one point decided that he was going to say whatever he wanted to say on the air, regardless of the consequences. As he told it, he was going to be completely honest on the air.
One can admire a person who wants to be honest on the air. However, the movie also showed a Howard Stern who betrayed confidences of friends and family, manipulated people to his own ends, and who valued being on the air, the larger the market, the better, above all else. Additionally, his movie, like his broadcasts, seems to imply that he just can’t understand why people are offended at what he says, and it isn’t his fault if they are. This plaint of “it’s not my fault” and “nobody understands me” reminded me forcibly of the new Bush ad Safer, Stronger with its implications of a whiney President going “It’s not my fault the country is so fucked up.”
In some ways Stern is a champion of free speech, but from the movie and all I’ve read, he’s really interested only in his own free speech, and could care less about anyone else’s. In fact, Stern’s main interest in the First Amendment is as a silent but key player in his act.
As I’ve said before, this puts me into a quandary. On the one hand, I believe that speech should be protected, even speech that I find offensive. On the other hand, I dislike having to protect something I value so much, freedom of speech, by supporting someone who values it so little. Still, the measure of a belief occurs when that belief is challenged to an extreme, and if Howard Stern’s Constitutionally protected free speech is abrogated, I would have to support him.
But it is not.
All the FCC can do is levy fines on radio stations that carry material deemed obscene. It cannot imprison or force off the air any one person. In addition, the FCC’s jurisdiction ends at the end of the public broadcast airwaves. In other words, it has no say in what appears on cable, satellite, in print, or on the Internet. Why? Because these means of communication must be deliberately invited into a person’s home; they are not carried as part of a open signal that can’t be blocked. In fact, it is because these signals can’t be blocked that an organization like the FCC was originally created. Long, long ago.
If Stern’s stations can no longer afford to carry him, then he can move to cable or satellite, book or print, or even the Internet. However, and this is a key factor, he may lose income in this move; he’ll definitely lose some audience in this move. But, the First Amendment does not guarantee that everyone have equal access to the airwaves, or that a person’s income is protected–it only concerns free speech.
As much as free speech does interest me, Howard Stern does not so why am I returning to this topic? Because of a phenomena I’ve noticed in weblogging this week, and a scene in Body Parts that seems to provide some explanation for it.
In the scene, an NBC employee is telling the NBC Program Manager who had been trying to force Howard Stern off the air that Stern’s audience spent more time listening to him than listeners of other radio shows. Paraphrasing because I don’t have the exact words, on average a person listens to only 15 minutes of an typical broadcast; however Stern’s fans would listen to over an hour of his broadcast.
“Why”, said the Program Manager.
“Because they want to hear what Howard will say next.”
“Yeah, but what about the people who don’t like Stern”, asks the Program Manager.
“They listen on an average of over two hours per broadcast.”
The incredulous Program Manager asks why.
“Because they want to hear what Howard will say next.”
I got a chuckle out of this because I’ve been following, with fascination, Jeff Jarvis rather histrionic support of Howard Stern in his daily Howard Stern updates. With each, his readers repeat the same arguments I have also given. More so, many ask why he keeps repeating Howard Stern posts daily–why doesn’t he move on?
But look Jarvis’ posts. Look at the comment count for each. For most of the posts, he gets on average less than 10 comments. However, with a typical Stern post the comment count is usually over 50 comments. Or more. Most disagreeing with Jarvis, and most repeating the same argument over and over.