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Jewish World Review May 25, 2004 / 5 Sivan, 5764

John H. Fund

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Don't Touch That Dial? Radio hosts worry about the FCC's indecency regulations. What about political speech? | NEW YORK — Singer Janet Jackson's "accidental" baring of her breast at the Super Bowl resulted in 200,000 complaints from outraged viewers and roused a somnolent Federal Communications Commission to start enforcing its 70-year-old standards against indecency. A battle has been joined between people who want to stem the tide of toilet humor and sex on the public airwaves and those who see the FCC's actions as the opening salvo against free expression.

Over 300 talk radio hosts gathered here over the weekend for the annual New Media Seminar, sponsored by Talkers magazine, to debate how much the FCC's new vigilance threatens their First Amendment rights. Michael Harrison, the conference organizer, argued that there is no clear line between the sexual innuendo of a Howard Stern and the political speech of a Rush Limbaugh. "The legally reckless FCC crackdown poses a deadly threat to the entire radio broadcasting industry," he said. Michael Medved, a nationally syndicated host based in Seattle, responded that his fellow conference goers were "crying wolf" and pointed out that "there isn't a person in this room who doesn't favor some standard for broadcasting, whether it be against kiddy porn or animal snuff films."

Others propounded political conspiracy theories about the FCC crackdown, endorsing Mr. Stern's view that Bush-appointed chairman Michael Powell began leaning on him only after he endorsed John Kerry for president. That's unconvincing. The real push for tougher enforcement has come from Democratic commissioner Michael Copps, who was outraged by Mr. Stern's kidding about hookers and rescue workers at ground zero. Mr. Copps also wanted to yank a station's license because it aired a vulgar shock jock called Bubba the Love Sponge. The FCC settled for $755,000 in fines, after which Clear Channel Radio fired Bubba. Clear Channel has also dropped Mr. Stern from its stations (he aired on only six of them), prompting the shock jock to compare his agony to "Jesus on the cross, having his skin pulled."

Chairman Powell himself believes that Mr. Stern's desire for "unbounded on-air expression is a fair argument" but notes that "it just doesn't happen to be the law." He told reporters at the National Association of Broadcasters convention last month that "indecency isn't anything that offends you, it's a legal term of art," and that despite his own disdain for content regulation, he has to enforce the law against broadcasts that depict or describe "sexual or excretory activities or organs in terms [that are] patently offensive." Congress doesn't appear to be in a mood to expunge those restrictions from the law books. Indeed, the House has voted to increase the top FCC fine for incidents of indecency to $500,000, up from $27,500.

Given that the FCC's standards are here to stay, how are we to balance the rights of people who demand the government investigate their complaints of indecency with the rights of free expression? Doug Stephan, a broadcaster for 39 years, prides himself on producing a show that's "family friendly." Nonetheless, he claims the prospect of FCC fines "hurts the quality of what I do." Mr. Harrison says the few companies that now own most talk radio stations are forcing hosts to pay any FCC fines levied against them out of their own pockets. They're also adhering to a zero-tolerance policy against indecency. "People who don't want to live with that will go to cable TV and satellite radio, which are unregulated," he notes.

There may ultimately be better ways for FCC-shy broadcast corporations to react to public anger against swill on the airwaves. Sen. Conrad Burns of Montana, a former farm broadcaster, says that airing ads for Viagra and similar products during baseball games is a recipe for misunderstanding. "Match up what you're advertising with who your audience is, we'll hear fewer complaints," he said.

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Sean Hannity, the talk-show host who is second only to Rush Limbaugh in popularity, warns that conservatives who applaud crackdowns on indecency should beware that liberals will also try to use a revitalized FCC to bring back restrictions on political speech. "I predict a backlash by liberals against free speech that will lead to calls for a new Fairness Doctrine mandating equal time, all in an effort to silence their critics," he told the New Media Seminar. "The solution to indecency," Mr. Hannity says, "is technology and choice."

"We are on the verge of a revolution in content screening," agrees radio consultant Holland Cooke. "The radio V-chip is coming and with other AM-FM parental controls we'll look back on this debate and wonder what all the fuss was about."

At the same time, stations must exercise some self-restraint. The parishioners of New York's St. Patrick's Cathedral, whose church was used as a staging ground for a live sex act broadcast on radio, shouldn't have been subjected to that frontal assault on their values.

Regardless of what direction the indecency debate takes, many people believe there will be a growing fuss over the political speech that everyone used to agree was at the core of the First Amendment. "We have a Supreme Court that's upheld the McCain-Feingold restrictions on political ads 30 or 60 days before an election, so other political speech may be up for grabs," says Mr. Medved. "The struggle talk radio hosts should be warning people about is the effort to stifle political speech."

Indeed, Canada has just extended its ban on "hate propaganda" to cover antigay speech, a move opponents warn could muzzle free speech by stifling religious and other criticism of gay rights groups. During his presidential run, Howard Dean promised a far more activist FCC, going so far as to tell MSNBC's Chris Matthews that he would support a breakup of News Corp., the owner of Fox News Channel, on "ideological grounds." He quickly backpedaled: "You can't ask me right now and get an answer [on] would I break up 'X' Corp."

As much as indecency is a legitimate public concern, there are ways to limit the impact of the FCC standards that will remain a fact of life through more industry self-restraint and public shaming of the worst shock programming. But we must also guard against another indecency: the danger that the FCC could pose to free and unfettered political speech. Let's not let the controversy over Janet Jackson's breast or Bono's use of the F-word completely distract us from that debate.

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©2001, John H. Fund