Howard Stern, Erich “Mancow” Muller and Others Who Are Feigning Ignorance About What’S Indecent

Shock Jocks and Conservatives ‘Fear’ FCC Crackdown

By Jan LaRue, Esq.

A. Public Reaction to Broadcast Indecency

Imagine someone pollutes your water and air and says, “If you don’t like it, just stop drinking and breathing.” Insolent radio shock jocks and TV programmers who pollute our public airwaves, violate the public trust and dismiss our public interest, tell us to “just turn the dial.” Worse yet, those who’ve caused their broadcasters to be fined numerous times by the Federal Communications Commission (FCC) for indecency violations are whining about not knowing what indecency means. Regrettably, some conservative talk radio hosts and political pundits who should know better are giving cover to shock jocks Howard Stern, Erich “Mancow” Muller and others who are feigning ignorance about what’s indecent.

They’re called “public airwaves” because they belong to the public. No one has a right to a radio or television broadcast license—a license is a privilege held in trust for the public interest. No one has a right to come into our homes via the public airwaves and behave like a pig in our parlor.

The FCC enforcement bureau ruled last fall that the “F-word” was not indecent when used as an adjective that does not describe a sexual act. As a result of the public uproar, FCC commissioners reversed the ruling. They didn’t propose a fine against NBC for use of the word by U2’s Bono during the 2003 Golden Globe Awards, however, because the FCC had never ruled that every use of the word violates FCC rules:

In announcing this definition, the FCC ruled that the single use of the “F-word” in the context of a live awards program was profane. The FCC further stated that it, “depending on the context, will also consider under the definition of profanity the “F-Word” and those words (or variants thereof) that are as highly offensive as the “F-Word,” to the extent such language is broadcast between 6 a.m. to 10 p.m. We will analyze other potentially profane words or phrases on a case-by-case basis.1

1 Available at: http://www.fcc.gov/eb/broadcast/obscind.html.

CONCERNED WOMEN FOR AMERICA 1015 Fifteenth St. NW • Washington, DC 20005 • Phone: (202) 488-7000 • Fax (202) 488-0806 • Web: http://www.cwfa.org Next came public outrage over the Super Bowl halftime show and Janet Jackson’s indecent exposure. FCC commissioners were called to testify before a congressional hearing on February 12, 2004. Commissioner Kevin J. Martin said:

Television today contains some of the coarsest and most violent programming ever aired—and more of it. Indeed, the networks appear to be designing programs to “push the envelope” and the bounds of decency. At the FCC, we used to receive indecency complaints by the hundreds; now they come in by the hundreds of thousands. Consumers, particularly parents, are increasingly frustrated and, at times, outraged. Something needs to be done. We need to provide parents with better tools to help them navigate the entertainment waters. The FCC needs to be more responsive. We need to provide parents with more tools to watch television as a family and to protect their children from violent and indecent programming.2 Executives from the communications and entertainment industries also testified at the hearing. On February 27, 2004, Eric Boehlert, writing for the ultra-liberal Salon.com, commented: Strange things happen when top executives from Clear Channel Communications are called to testify before Congress. This week, Clear Channel Radio [P]resident John Hogan was set to face hostile congressional questioning over the growing fury of broadcast indecency, spurred in part by the scandalous Janet Jackson/Justin Timberlake halftime performance at the Super Bowl. As it has in the past, the media giant took the initiative and stunned the industry in recent days by launching an unprecedented, zero tolerance indecency crackdown. The result: Bubba the Love Sponge is out of a job and Howard Stern has been booted from six stations.3

B. Constitutional Basis for Broadcast Indecency Regulations

In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the FCC justified its more stringent regulations on broadcasters as follows:

Broadcasting requires special treatment because of four important considerations: (1) children have access to radios and in many cases are unsupervised by parents; (2) radio receivers are in the home, a place where people’s privacy interest is entitled to extra deference, see Rowan v. Post Office Dept., 397 U.S. 728 (1970); (3) unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast; and (4) there is a scarcity of spectrum space, the use of which the government must therefore license in the public interest. Of special concern to the Commission as well as parents is the first point regarding the use of radio by children. Id. at 731, n. 2.

Pacifica involved an indecency complaint against a New York radio station for an afternoon broadcast of a recording of George Carlin’s infamous 12-minute monologue, “Filthy Words.” Carlin said they were “the words you couldn’t say on the public, ah, airwaves, um, the ones you

2 Kevin J. Martin, “Protecting Children From Violent and Indecent Programming,” February 11, 2004, available at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243865A2.doc. 3 Eric Boehlert, “Clear Channel Boss is shocked—shocked—to find indecency,” available at: http://www.salon.com/news/feature/2004/02/27/clear_channel/index_np.html. 2 definitely wouldn’t say, ever.” Id. at 729. Apparently, today’s shock jocks aren’t as smart as Carlin. Carlin had delivered his monologue before “a live audience in a California theater.” Id.

Justice John Paul Stevens, writing for the Court, reasoned that broadcast indecency, “like a ‘nuisance may be merely a right thing in the wrong place,—like a pig in the parlor instead of the barnyard.’ … We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.” Id. at 750- 51.

The Court also affirmed that imposing sanctions for indecency is not “censorship”:

Entirely apart from the fact that the subsequent review of program content is not the sort of censorship at which the statute was directed, its history makes it perfectly clear that it was not intended to limit the Commission’s power to regulate the broadcast of obscene, indecent, or profane language. … Quite plainly, Congress intended to give meaning to both provisions. Respect for that intent requires that the censorship language be read as inapplicable to the prohibition on broadcasting obscene, indecent, or profane language. Id. at 737-38.

The Court quoted the FCC’s definition of indecency with apparent approval—language that “describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.” Id. at 732. The U.S. Court of Appeals for the D.C. Circuit specifically upheld the definition against constitutional challenges in the Action for Children’s Television cases. The court held that indecency limited to the “safe harbor” was justified as a properly tailored means of vindicating the government’s compelling interest in the welfare of children. See ACT III, 58 F.3d at 669-70 (D.C. Cir. 1995).

C. Statutory Authority for Broadcast Indecency Enforcement

Federal law, 18 U.S.C. § 1464, prohibits the utterance of “any obscene, indecent, or profane language by means of radio communication.” Congress has given the FCC the responsibility for administratively enforcing indecency under the statute. The FCC may revoke a station license, impose a monetary forfeiture, or issue a warning for the broadcast of indecent material under 47 U.S.C. Sections 312(a)(6) and 503(b)(1)(D). The Department of Justice (DOJ) is responsible to prosecute criminal violations of indecency and obscenity. The DOJ also enforces the collection of fines imposed by the FCC’s indecency forfeiture orders (FO).

Indecent broadcasts are restricted to 10 p.m. - 6 a.m., known as the “safe harbor.” The FCC still defines indecent speech “as language that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium.”4 According to FCC guidelines released April 6, 2001, “the determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area. Rather, the standard is that of an average

4 Available at: http://www.fcc.gov/eb/Orders/2001/fcc01090.html. 3 broadcast viewer or listener and not the sensibilities of any individual complainant.” 5 It includes scores of “selected rulings intended to illustrate the various factors that have proved significant in resolving indecency complaints.”

Profane broadcasts are likewise restricted to 10 p.m.-6 a.m. The FCC defines profanity 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.”6

D. Recent FCC Enforcement Actions

On April 8, 2004, The FCC fined Clear Channel Communications Inc., the world’s largest radio chain, $495,000 for an April 2003 broadcast of The Howard Stern Show. The FCC’s notice of apparent liability for forfeiture (NAL) states:

Finally, during this entire segment, the host’s discussion of anal sex and his commentary on oral sex are punctuated by the sound of someone passing gas or evacuating. Given the explicit description of oral sex and the sustained discussion of a cast member’s anal-sex practices, all of which were accompanied by sound effects of flatulence and evacuation, it is clear that the material was designed to shock and pander.7

As a result, Clear Channel permanently dropped Stern from its stations. In February, the company suspended Stern from the six Clear Channel stations that carried his syndicated show because executives said one of his segments violated its new policy against airing indecent programming. “We had hoped to return Mr. Stern’s show to the air free from indecent content. Unfortunately, the FCC’s latest action, combined with deafening silence from the Stern show on their future plans to comply with the law, leave us no choice but to abandon the program for good,” said John Hogan, president and chief executive of Clear Channel Radio.8

On March 18, 2004, the FCC filed a NAL against Infinity Broadcasting, Howard Stern and a Detroit radio station for airing the following: Howard Stern: “Well, a blumpkin is receiving o*** sex while you’re sitting on a toilet bowl if you are a man.9You’re sitting on a toilet bowl and uh, while you’re re-e********** you receive your o***.”10

Infinity paid $1.7 million in 1995 to settle various violations by Stern. The Center for Public Integrity, a watchdog group, said fines against Stern accounted for almost half of the $4 million in penalties proposed by the FCC since 1990.11

5 In the Matter of Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, available at: http://www.fcc.gov/eb/Orders/2001/fcc01090.html. 6 Available at: http://www.fcc.gov/eb/Orders/2001/fcc01090.html. 7 Available at: http://www.fcc.gov/eb/Orders/2004/FCC-04-88A1.html. 8 Chris Baker, “Clear Channel fined $495,000 for Stern acts; Radio chain drops shock jock from stations,” The Washington Times, April 9, 2004, p. A01. 9 Use of * throughout is to avoid offense to the reader as much as possible. 10 Available at: http://www.fcc.gov/eb/Orders/2004/FCC-04-49A1.html. 11 Baker. 4

Also on March 18, 2004, the FCC filed a NAL against Capstar TX Limited, the licensee of a Stuart, Florida, radio station and Capstar’s indirect parent company, Clear Channel. FCC Commissioner Michael Copps, a Democrat, commented on repeated violations by Clear Channel, which should give them sufficient understanding of what indecency means:

In this case, two Clear Channel radio stations aired what was purportedly a couple engaging in sex and then discussed sexual activities with them. Clear Channel has been the subject of repeated indecency actions at the FCC, accounting for well over half the indecency fines since 2000. Yet, notwithstanding the repeated nature of Clear Channel’s transgressions, the majority proposes a mere $27,500 fine for each incident—a “cost of doing business” to a media giant like Clear Channel.12

The FCC announced on January 27, 2004, that it would fine Clear Channel radio stations $755,000 for a Bubba the Love Sponge program, [which] “contained 26 apparent indecency violations that involved graphic and explicit sexual and/or excretory material, and were designed to pander to, titillate and shock listeners.” They were summarized as follows: “As an initial matter, all of the seven program segments, in one manner or another, unquestionably involved on-air discussions relating to descriptions or depictions of sexual organs, excretory organs and/or activities of a sexual nature. The broadcasts involved conversations about such things as oral sex, p******, t********, m***********, intercourse, orgasms and breasts.”13 The program aired from 6 -10 a.m. on radio stations in Tampa, Orlando, Jacksonville and Ft. Myers, Florida; Wichita, Kansas; and Macon, Georgia. On March 4, 2004, Clear Channel paid the $755,000 fine and canceled the program.

Erich Muller, the Chicago-based host of Mancow’s Morning Madness broadcast by Emmis Radio License Corporation on WKQX (FM), has been in the media recently bewailing that he doesn’t know what “indecency” means. The Commission released a monetary forfeiture order (FO) against Muller’s station on February 18, 2004, for content described as follows:

The lyrics of “***” contain explicit and graphic sexual references, including references to fellatio, female genitalia, e********** and m***** s********** of the female genitalia. The song’s sexual import is lewd, inescapable and understandable. The song, in context, has a sexual meaning that is unmistakable and is similar to other material found to have clearly understandable sexual references and to meet the definition of broadcast indecency.14

Additional FOs were released against Muller’s station on November 1, 2002, for three broadcasts described as follows:

The material broadcast on March 6, 2001 contains sexual innuendo, including references to oral sex, genitalia, m***********, e********** and excretory activities. Contrary to

12 Available at: http://www.fcc.gov/eb/Orders/2004/FCC-04-36A1.html. 13 Available at: http://www.fcc.gov/eb/Orders/2004/FCC-04-17A1.html. 14 Available at: http://www.fcc.gov/eb/Orders/2004/DA-04-386A1.html. 5 Emmis’s assertion, the sexual references broadcast on March 6, 2001 were not fleeting. The material broadcast on March 7, 2001, which concerns the effect of a sexual stimulant on a female cast member and the reaction of others present to her sexual response has a sexual meaning that is unmistakable. We also reject Emmis’s argument that the material broadcast on March 6, 2001 and March 7, 2001 does not appear to have been presented to pander, titillate or shock. Moreover, the material broadcast on March 6, 2001 and March 7, 2001 is similar to other material that has been found to be patently offensive.15

Another NAL against Muller was filed on January 8, 2002, based on complaints of two broadcasts:

With respect to the March 20, 2000 broadcast, based on the uncontradicted facts set forth in the complaint, the Mancow program featured a telephone conversation with a porn star. The program talked in graphic detail about “f******,” which, according to the complainant, the porn star described as a procedure by which a female is sexually gratified by having an entire hand inserted into her s***** o****. With respect to the May 15, 2000 broadcast, the Mancow program featured interviews with three women about their sex lives. The interviewer asked each woman (and each answered) whether she “spit or swallowed” her partner’s s****. During the questions and answers, the station played in the background sounds of women moaning.16

The FCC filed a NAL on January 27, 2004, against Station KRON-TV in San Francisco, based on a complaint alleging the station aired indecent material during the KRON 4 Morning News show on October 4, 2002, at approximately 8:25 a.m. A videotape of the program showed the program’s hosts interviewing performers with the stage production of Puppetry of the P****, who appeared in capes but were otherwise naked. During the course of the interview, one of the performers exposed his p**** while preparing to demonstrate “genital origami.”17

The Commission released a NAL, including a $247,500 fine against Station WWDC (FM), Washington, D.C., for broadcast of indecent material on October 2, 2003, at approximately 5:51 p.m. The complaint involved material that was apparently a clip rebroadcast from the program Elliot in the Morning, which was broadcast by three subsidiaries of Clear Channel. It included “repeated discussion of oral sex, group sex, m*********** and the sexual performance of a ‘porn legend’: Female Voice: “I m********* with Jeremy’s video every day. Uh, not every day, but every other weekend. Craig’s Voice: Wow. What is it that you like about him so much? Female Voice: The way he l**** p****. I want to do a threesome with him. See who’s the best. If I can l*** better or he can l*** better.”18

15 Available at: http://www.fcc.gov/eb/Orders/2002/DA-02-2937A1.html. 16 Available at: http://www.fcc.gov/eb/Orders/2002/DA-02-26A1.html. 17 Available at: http://www.fcc.gov/eb/Orders/2004/FCC-04-16A1.html. 18 Available at: http://www.fcc.gov/eb/Orders/2003/FCC-03-233A1.html. 6 E. Political/Social Commentators React to FCC Enforcement Actions and Tough New Legislation

On February 26, 2004, Muller19 appeared on Fox’s Hannity & Colmes to condemn the FCC for fining Howard Stern. They discussed concerns that the FCC’s indecency definition is so vague that conservative talk show hosts are at risk. Following is the exchange between Sean Hannity and Muller:

HANNITY: Good to talk to you my friend. All right. Look, I’ve listened to Howard Stern for years. MULLER: Right. HANNITY: I think everything Howard Stern says, he’s kidding. I don’t think he says anything— I think some of it is over the line. I think some of it can be mean at times, whatever. But you know what, sometimes he’s very funny. He’s highly rated. The people decided to listen to him. MULLER: Yes. Well, he’s... HANNITY: Go ahead. MULLER: He’s highly rated except in Chicago where I beat him. Look, Sean, you’ve done my show, the president has done my show. Alan Colmes has done my show, and I just got fined last week for something from 2001. And I just want to say one thing before we get going here, and I’m willing to talk about anything, but I’m being fined. This is chilling. This is more big government. And look, it’s easy to go after Stern. You know, the Janet Jackson thing was horrible. But I’ll tell you this, on any day, I could find something on Rush Limbaugh’s show, on Michael Savage’s show, on your show that could get you off the air. Certainly on my show. It’s really easy what’s going on out there. Look, Stern is easy. HANNITY: But... MULLER: Wait, wait. You and I sat and talked about this. I mean, this guy did a show about raping my father’s corpse. Let me tell you something. I’d like Stern to have a bullet in his head; I hate his guts. But in a free country you have a right to be a jerk. HANNITY: But Mancow, that’s the point. And I think—for example, but if Clear Channel—this is not a free speech issue from Clear Channel’s point of view. MULLER: Right. HANNITY: If they decide they have their limits, their standards, they want to use them, I think they have every right to put him on or not put him on. MULLER: Yes. HANNITY: On the other hand … But we’ve got to raise this question. Are there any limits, and what would the limits be? For example, should you be allowed to use the F-word on radio? [It is noteworthy that Hannity and Muller refrained from saying the “F-word” even though they were not subject to indecency regulations because the program is carried on cable TV. [It seems that they do have a working knowledge of indecency.] MULLER: No. HANNITY: I don’t think you should.

19 “Every day, syndicated radio host and FOX contributor Mancow joins the show with unique insights and commentary on the day’s news events, bringing his own brand of offbeat and irreverent humor from his WKQX studio in Chicago,” available at: http://www.foxnews.com/story/0,2933,115458,00.html.

7 MULLER: I don’t think so either. Sean, look, you can’t go in a firehouse and yell out “movie” or whatever the rule is. Look, you got to have rules. The thing is, I never wanted to break the rules. I did a parody song about Bill Clinton. It cost me $42,000. The newscasters were saying the same thing I said in a parody song. HANNITY: Listen, but... MULLER: Sean, Sean, Sean, you forget, I’m your friend. I know how the government went through your offices. This is more of the same. You and I are in the same boat. And you’ve got to say—We hate this guy, we should tell people. But he has a right to be a jerk. But tell us what the line—I just want to know what the line is. Tell me what the line is; I'll obey it. HANNITY: This is chilling because I think at the end of the day, those people that have conservative viewpoints on the radio... MULLER: I’m a Christian. HANNITY: Hang on. MULLER: I’m a conservative. HANNITY: Can similarly be targeted. And I think what they’re doing to Howard—look, here’s the bottom line. Howard has the No. 1 morning show in New York, OK? MULLER: Yes. HANNITY: People have made their decision. They want to listen to him. MULLER: That’s right. HANNITY: If you don't like what he says... MULLER: Turn the channel. HANNITY: Turn the dial.”20

Muller claims to be an avid defender of the First Amendment; however, Muller is suing activists Kathy Valente, state director for Concerned Women for America of Illinois, and David Smith, as agents of Citizens for Community Values, for filing complaints against Muller, resulting in $42,000 worth of FCC indecency fines. Muller’s $3 million lawsuit charges them with business interference and filing “spurious complaints” that are “repetitive, malicious, untrue and designed merely for the purpose of harassment.” Smith has filed 66 complaints against Muller.21

Incredibly, Muller appeared on the Fox News Channel’s Fox & Friends on April 8, 2004, expressing shock about motorists who are playing porn videos on their car’s DVD player in full view of other motorists and children, exclaiming, “Who does that!” Could it be that they’re Muller fans who’ve been desensitized by his indecent programming during hours when kids are in the audience?

If these repeat offenders still don’t get it, they could have someone read to them from the NALs posted on the FCC Web site. They could also gain an idea of what broadcast community standards are by listening to the public. In 2003, Parents Television Council sent out

20 Hannity & Colmes, “Has Howard Stern Gone Too Far?,” available at: www.Nexis.com, Transcript # 022602cb.253. 21 March Shiffman, “Tuned In: Radio: FCC Fines Spur WKQX DJ Suit,” April 10, 2004, available at: http://www.nexis.com/research/home?_key=1039891496&_session=2430f8d6-0f94-11d7-a0a2- 8a0c593caa77.1.3217344296.260194.%20.0.0&_state=&wchp=dGLbVlz- lSltB&_md5=08d4bcd210943b9486bd21171692825b. 8 approximately 1.5 million community standard audits and received more than 128,000 responses:

The numbers speak for themselves. Should there be graphic violence during children’s viewing time? No, said 94.2 percent. Partial nudity during that time? No, said 93.1 percent. Should shows promote the homosexual lifestyle in the face of kids? No, said 94.6 percent. The same percentage said no to prime-time promotion of oral sex and sex involving minors. Roughly the same number of survey respondents objected to blasphemous language, excretory language, descriptions of sexual encounters or strong sexual language.22

Commentators and political pundits, who should know better, have expressed their “fears” that the FCC’s recent stepped-up enforcement and new legislation threaten conservative talk shows. The legislation would permit the FCC to increase fines for indecency on the airwaves from $17,000 to $500,000 and revoke a broadcaster’s license after three fines. Paul Weyrich, president of Free Congress Foundation, says:

Legislation like this sets a precedent. If stations can be shut down for the garbage spewed by Stern, what happens when President Hillary advocates, and gets pas[t] a liberal Congress, legislation which allows complaints to be filed for hate speech. Hate speech could well be defined as exactly what Rush, Sean Hannity, Mike Reagan and others put out over the airwaves. 23

Please. Sen. Hillary Clinton (D-New York) and a liberal Congress have never needed to springboard from legitimate legislation in order to advance a radical agenda. Clinton and Sens. Ted Kennedy (D-Massachusetts) and Orrin Hatch (R-Utah) pushed for expanding federal hate crime laws long before this legislation was on the table.

Weyrich says Rush Limbaugh “is also worried about this legislation.”24 In what may be an attempt at self-fulfilling prophecy, Limbaugh told a joke on his radio program that was laced with sexual innuendoes and had nothing to do with political or social commentary. A listener, Florida attorney Jack B. Thompson, filed an indecency complaint with the FCC on March 26, 2004. Here is what Limbaugh said:

I have a joke. I got it in an e-mail. I’m just going to tell you that I did not write this, and I don’t really know the source. I got it third-hand, but I’ll just pass it on to you anyway in the event that you haven’t heard it: Pfizer Corporation announced today that Viagra will soon be available in liquid form. It will be marketed by Pepsi as a power beverage suitable for use as a mixer. It will now be possible for a man to literally pour himself a stiff one. Obviously we can no longer call this a soft drink, and it gives new meaning to

22 Brent Bozell, “Inaction at the FCC,” May 29, 2003, available at http://www.townhall.com/columnists/brentbozell/bb20030529.shtml. 23 Paul Weyrich, “A Risky Culture Fight,” available at: http://www.freespeech.com/archives/002280.html. 24 Id. 9 the names ‘cocktails,’ ‘highballs,’ and a good old fashioned ‘stiff drink.’ Pepsi will market the new concoction by the name of Mountain Dew.25

Other commentators understand that sanctioning broadcast indecency poses no credible threat to legitimate political and social commentary. Conservative Bill Bennett expressed the importance of broadcasters respecting the public trust and public interest:

As a matter of First Amendment law, the U.S. Supreme Court has found that fines against indecency on the public airwaves are not unconstitutional. The court has rightly held that there is a hierarchy of speech to be protected. Political speech does and should receive the highest level of protection. … Stern is free to speak—in graphic, pornographic and even racist terms. But our corporations are also free to refuse to give him a microphone to do so. And if they did not exercise their own self-restraint, they would possibly have to pay a price in fines. Such is the price to be paid for handling the public trust of the public airwaves; such is the price broadcasters pay for their license the government protects by not allowing other broadcasters to bleed into their frequency. There is no law, and should be no law, keeping Stern from speaking, but red light districts should not receive easements to trespass into our living rooms, our carpools, our school yards or onto Main Street.26

Bill O’Reilly, who describes himself as politically “independent,” recognizes the right of the FCC to enforce indecency standards:

Broadcast radio and TV use the airwaves owned by you and me, the folks. And the government has an obligation to supervise what goes over those airwaves. It’s not like cable or satellite radio, which you have to pay for. Thus, the FCC has an obligation to set standards and rules for broadcasters. … Now I’m on the record as saying that Howard Stern’s direct style and no B.S. approach made it possible for me to do what I do. But I’ve also told him face to face he often goes over the line and doesn’t have to. He’s plenty smart enough to put on an entertaining program without grossing everybody out. Personally, I could not care less what Howard does on his program. That’s up to him. He’s not a gangster rapper encouraging people to sell and use narcotics and commit violence. Stern is simply a comedian who traffics in sex and bodily functions. But the government has a right to set standards and enforce them over the public airwaves. That’s not a violation of anybody’s freedom of speech.27

Finally, in Pacifica, the Court rejected the notion that the definition of indecency would have any substantial chilling effect on important social and political discussion:

25 Formal Complaint of Broadcast Indecency on Rush Limbaugh Program at 2:55 p.m. on March 26, 2004, Against Clear Channel’s WIOD-AM (610 in Miami, Florida) and Against All Clear Channel and Other Stations Airing the Limbaugh Program. 26 William J. Bennett, “The First Amendment, Public Pollution, and Cultural Air Ducts,” April 3, 2004, available at: http://www.radioink.com/HeadlineEntry.asp?hid=120355. 27 Bill O’Reilly, “Howard Stern and Congress,” March 12, 2004, available at: http://www.foxnews.com/printer_friendly_story/0,3566,114035,00.html. 10 It is true that the Commission’s order may lead some broadcasters to censor themselves. At most, however, the Commission’s definition of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities. While some of these references may be protected, they surely lie at the periphery of First Amendment concern. Cf. Bates v. State Bar of Arizona, 433 U.S. 350, 380-381. Young v. American Mini Theatres, Inc., 427 U.S. 50, 61. The danger dismissed so summarily in Red Lion, in contrast, was that broadcasters would respond to the vagueness of the regulations by refusing to present programs dealing with important social and political controversies. Invalidating any rule on the basis of its hypothetical application to situations not before the Court is “strong medicine” to be applied “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613. We decline to administer that medicine to preserve the vigor of patently offensive sexual and excretory speech. Pacifica at 743.

A requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language. Id. at n 18.

In the years since the Pacifica ruling, the Court has become more liberal, not less, in cases involving pornography. That should alleviate concern that political and social commentary is at risk if the FCC vigorously enforces indecency regulations. The Court’s protection of speech lying at the “periphery of First Amendment concern” bodes even better for speech at its core. Furthermore, self-censorship should not be confused with government censorship, which is a prior restraint on speech. Civil and criminal sanctions against unprotected expression are meant to deter violations by inciting self-restraint.

F. Conclusion

FCC Commissioner Michael Copps challenged the National Association of Broadcasters to create programming in keeping with the public trust for the future of our children and our country.

Let’s begin with why we are here today. We are here because millions of Americans have made it convincingly clear that they no longer will tolerate media’s race to the bottom when it comes to indecency on the people’s airwaves. We are here because it is no longer possible for your industry or the Federal Communications Commission to duck the issue with impunity. And we are here because people are demanding action—action now. …

What you do affects profoundly the future of our kids and the future of our country. I know many of you personally, and as I meet and talk with you, I am impressed so often to see the flame of the public interest still burning. Sometimes it flickers for want of oxygen, particularly in the new media environment in which we live. That new environment explains a lot, but it excuses nothing. And I am here today to ask you to breathe the clean fresh air of citizen concern and common sense on that flickering flame. Passing our airwaves on to the next generation in better shape than we found them is your job and my job, and how you and I, in our individual ways, handle the matter before us

11 today will provide ample opportunity for people to judge the success of our stewardship. They are watching and they are judging right now.28

Members of the public may file a broadcast indecency complaint by sending a simple e-mail to the FCC at [email protected] or by mail to Federal Communications Commission, Enforcement Bureau, Investigations & Hearing Division, 445 – 12th Street, SW, Washington, DC 20554.

A complainant may submit a significant excerpt of the program describing what was actually said (or depicted) or a full or partial tape or transcript of the material. In whatever form the complainant decides to provide the information, it must be sufficiently detailed such that the Commission can determine the words and language actually used during the broadcast and the context of those words or language. Complainants must provide the date and time the material in question was broadcast and the call letters of the station involved.29

The FCC does not initiate an enforcement action for an indecency violation unless it receives a complaint from someone like you. Unless you help set the “contemporary community standards for the broadcast medium,” there’ll be more “pigs in your parlor instead of the barnyard.”

Even if a program doesn’t meet the legal definition of indecency, you can still exercise your influence as a consumer to make a difference. Write to sponsors of objectionable programming and tell them that you won’t buy their products if they continue to sponsor offensive programs.

Your efforts are making a difference. We saw that clearly in the wake of the Jackson/Timberlake Super Bowl halftime fiasco. You heard CWA spokesmen on the major media and read our Web site, and many citizens contacted the FCC and TV networks to express their outrage. Even before that, FCC Commissioner Kevin J. Martin wrote in a December 2003 letter that indecency complaints jumped from 351 to 19,920 just in the third quarter of that year!

Members of CWA’s staff are seeing the fruit of their labors, as well. Just days before the Super Bowl, Congress held a hearing on the FCC’s failure to enforce indecency. I met previously with congressional staff members who facilitated that hearing. As part of a pro-family coalition, CWA will continue to meet with FCC commissioners, as we’ve done twice in the last year, to hold them accountable. We are working for passage of legislation in the Senate that will significantly increase potential fines and other penalties for those who violate broadcast indecency standards.

All these measures are creating an uproar that even radio’s worst shock jocks can’t ignore.

For more information on the fight against broadcast indecency and related issues, such as pornography, visit Concerned Women for America’s Web site, www.cwfa.org.

Jan LaRue is chief counsel for CWA, the nation’s largest public policy organization for women, located in Washington, D.C.

28 Remarks of FCC Commissioner Michael J. Copps, NAB Indecency Summit, Washington, D.C., March 31, 2004, available at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-245610A1.doc. 29 Available at: http://www.fcc.gov/eb/broadcast/opi.html. 12