F*cked by the F*CC (Page 2)

Ernest Miller, a fellow at Yale Law School's Information Society Project, also gets constitutional agita over the FCC's new reach into profanity. He argues on his Corante.com weblog that this opens the door to FCC regulation of hate speech--for what is a more grossly reviling epithet worthy of violent resentment than, say, the N-word? But then, what if that N-word is spoken by a hip-hop artist instead of a KKK member? Shouldn't the speech be separate from the speaker? Apparently not if you're Oprah Winfrey, whose show explained sexual colloquialisms just as bluntly as Stern did on the very day he was fined for it--though so far, she has not been fined. The problem with all this, says Corn-Revere, is that "you enable the government to tailor its penalties based on how much it likes or dislikes the speaker." Judging by the disproportionate fines--the vendetta--against Stern, that is exactly what has been happening.

A coalition of two dozen broadcasters, performers (including Margaret Cho) and First Amendment groups just petitioned the FCC to reconsider its Bono ruling. They argue that attacking profanity (a k a blasphemy) dances perilously near the line between church and state, that this "is fundamentally incompatible with the First Amendment" and that it "already is exerting a substantial chilling effect on constitutionally-protected speech."

The legislation coming out of Congress goes even further and raises even more troubling constitutional issues. Senator Fritz Hollings would extend FCC authority to restrict violent programming. Corn-Revere says that every court "has held that trying to define and trying to regulate violence is unconstitutional." The problem with the new legislation, he says, is that "they allow but do not require the FCC to exempt news or sports. And they do not say whether it extends to animal violence or, I like to say, food-chain violence. So will Shark Week be too violent?" Yale's Balkin adds that "if protecting children from violence is a compelling state interest, why not racism or sexism or homophobia?"

Hollings's effort also extends enforcement to cable. In the Pacifica ruling twenty-six years ago, regulation of TV was justified in part because of its "uniquely pervasive" nature. Today no one channel or even medium is so pervasive (though firebrand Michael Copps, the most frightening FCC commissioner, also calls for extending regulation to cable and satellite because they too are now "so pervasive"). Corn-Revere says that won't hold up. "The court, whenever presented with the issue, has held that they're not going to extend broadcast-like regulation to other media, including cable."

But of course the real constitutional issue is the chill in the airwaves brought on by all these threats. TV producer Steven Bochco told a reporter that since The Breast, ABC censors have for the first time cut his NYPD Blue. "It's very chilling."

The industry as a whole is feeling the strong-arming of the law. The National Association of Broadcasters is considering reinstating its Code of Good Practices, which was dropped in the 1980s under pressure from the Reagan Administration out of--cue ironic smirk--constitutional concerns. In his address to the NAB in March (reminiscent of former FCC chairman Newton Minow's famous 1961 speech calling TV a "vast wasteland"), FCC chairman Powell urged them--under threat of gigantic fines--to adopt a voluntary code: "It would be in your interest to do so." But as Corn-Revere observes, "Voluntary doesn't mean voluntary."

Consider, too, that any citizen could be subject to fines under this legislation. "Imagine if a television crew had filmed an Abbie Hoffman speech," says Yale's Miller. "Would Hoffman be liable for intentionally using the term 'fuck' and knowing his speech would be broadcast?" Feeling chilly?

The assault on free speech isn't coming just from the FCC and Congress. The Federal Trade Commission just stepped up monitoring of media violence, "including complaints about the advertising, marketing, and sale of violent movies, electronic games (including video games), and music." And Attorney General John Ashcroft has launched a multimillion-dollar war on pornography. Says the Baltimore Sun: "Nothing is off limits, they warn, even soft-core cable programs such as HBO's long-running Real Sex or the adult movies widely offered in guestrooms of major hotel chains."

And then there's Stern. The looming threat of fines that could pile into millions--and be levied years after the acts--is enough to force him off the air and onto satellite, he vows. "No company can stand up to this kind of government pressure," he says. "I can't take the pressure that they're going to fine me personally every day." If Stern leaves the air, a voice that reaches 8.5 million fans a week will be, at best, reduced to an audience a fraction that size. And his politi- cal speech will have been forced off the airwaves--our airwaves--under government pressure.

The punch line of this sad joke is that Howard Stern has become the liberal talk-show star the left has been dying to hear. Laurie Spivak at AlterNet says Stern has unleashed against Bush the long-sought-after WMDs--White Male Defectors. Salon's Eric Boehlert calls them "Howard Stern's schwing voters." MTV News says Stern could have a bigger impact on the election than Ralph Nader.

Stern returned from a vacation on February 23 carrying Al Franken's Lies and the Lying Liars Who Tell Them and ranting, "If you read this book, you will never vote for George W. Bush. I think this guy is a religious fanatic and a Jesus freak, and he is just hellbent on getting some sort of bizarro agenda through." The next day, Stern interviewed Rick Solomon, Paris Hilton's costar in an infamous porn video; sexual and racial talk ensued and that was all that was needed: Two days later, Stern was kicked off Clear Channel. He says that was because Clear Channel is run by Bushies. And he says that is why the FCC and Congress are after him as well. The conspiracy theory is weakened somewhat by the bipartisan nature of the rush to censorship, though there's no denying that this is a political story.

• « Previous
• 1
• 2
• 3
• Next »

• Get The Nation at home (and online!) for 68 cents a week!
• If you like this article, consider making a donation to The Nation.
• Reprint this article. Click here for rights and information.