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Rock Is a Four-Letter Word: the Potential for FCC Regulation of (Un)Popular Music, 9 Hastings Comm

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Rock Is a Four-Letter Word: the Potential for FCC Regulation of (Un)Popular Music, 9 Hastings Comm Hastings Communications and Entertainment Law Journal Volume 9 | Number 3 Article 3 1-1-1986 Rock is a Four-Letter Word: The otP ential for FCC Regulation of (Un)Popular Music Alan Jay Lazarus Follow this and additional works at: https://repository.uchastings.edu/ hastings_comm_ent_law_journal Part of the Communications Law Commons, Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Alan Jay Lazarus, Rock is a Four-Letter Word: The Potential for FCC Regulation of (Un)Popular Music, 9 Hastings Comm. & Ent. L.J. 423 (1986). Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol9/iss3/3 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Communications and Entertainment Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Rock is a Four-Letter Word: The Potential for FCC Regulation of (Un)Popular Music by ALAN JAY LAZARUS* Contents INTRODUCTION ........................................ 424 I. AMERICAN POPULAR MUSIC IN PERSPECTIVE........ 427 A. The Historical Perspective ........................ 427 B. The Modern Perspective and the Current Regulatory Climate ............................... 430 II. THE LEGAL STATUS OF ROCK SPEECH ................. 436 III. FCC AUTHORITY TO REGULATE PROGRAM CONTENT. 439 A. The Foundations of Content Regulation ......... 439 B. Direct Regulation of Program Content .......... 442 C. Indirect Regulation of Program Content ........ 446 D. Informal Regulation of Program Content - Regulation By Lifted Eyebrow ................... 454 1. Topless Radio .................................. 458 2. The Family Viewing Hour .................... 461 3. Drug Lyrics and "Licensee Responsibility".. 465 IV. THE IMPACT OF PACIFICA .............................. 473 A . Pati ............................................ 473 B. Wrong Turns and Improper Accommodations... 487 1. The Move Toward a Value-Based Theory of First Amendment Protection ................. 487 2. The Move Toward Limited Review of FCC Content Regulation ............................ 488 3. ImproperAccommodation of Privacy and Speech Rights .................................. 491 4. Improper Accommodation of Paternal Interests and Expressive Rights ............... 494 Member, Third Year Class; B.A. State University of New York, CoUege at Oswego, 1978. The author wishes to express his appreciation to Cindy Lazarus, whose therapeutic efforts and inhuman patience made this Note possible. COMM/ENT L. J. [Vol. 9:423 5. The Move Toward a Form/Content Distinction..................................... 498 6. The Move Toward an EthnocentricFirst Amendment .................................... 499 C. Net Effects - FCC Power to Regulate Program Content After Pacfica............................ 501 V. THE POTENTLAL REGULATION OF ROCK SPEECH ...... 505 A. The Potential - The Regulability of Rock Speech ............................................. 505 1. CategoricalProtection for Rock Speech - The Commercial Speech Analogy ............. 505 2. The Ad Hoc Value of Rock Speech ............ 507 3. The Regulation of Broadcast Rock Speech .... 508 B. The Likelihood - The FCC's Deregulatory Revolution ......................................... 516 CONCLUSION .................................................. 519 ADDENDUM ................................................... 521 Experience should teach us to be most on our guard to pro- tect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well- meaning, but without understanding.t Introduction It is ironic that in the year rock 'n' roll' emerged as a substan- tial beneficent social force it was also roundly chastised by the United States Senate.2 Even as it received wide acclaim as an t Olmstead v. United States, 277 U.S. 438, 479 (1928)(Brandeis, J., dissenting). 1. Throughout this Note the terms "rock 'n' roll" and "rock" are used inter- changeably, though musicologists have sometimes drawn a distinction between the two. See, e.g., C. HAMM, YESTERDAYS 465 (1979). A definition of rock, like that of any other art form, is problematic and subjective. See J. ORMAN, THE POLITICS OF ROCK Music x (1984) ("A definition of rock music often says more about the values of the person who is doing the defining than the actual concept"). Nevertheless, the diction- ary defines rock as "popular music usu[ally] played on electronically amplified instru- ments and characterized by a strong beat and much repetition." MERRIAM-WEBSTER DIcTIoNARY 605 (pocket ed. 1974). The derivation of the term may cast some light: "Rock 'n' roll" was a euphemism for sexual intercourse in the early twentieth cen- tury. Palmer, Early Blues Lyrics Were Often Blue, N.Y. Times, Nov. 7, 1985, at C33, col 4. 2. See Record Labeling:Hearing Before the Senate Committee on Commemr, Sei- ence and Transportation,99th Cong., 1st Sess. (1985). This irony has not escaped no- tice. Eg., Davis, Rock Music: Parental Guidance Suggested, CHRISTIAN CENTURY, 1987] ROCK LYRICS 425: idealistic unifying force for raising millions of dollars for a vari- ety of worthy causes,3 rock was vehemently denounced as an anti-social corruptive influence on American youth.4 Popular Nov. 13,1985, at 1032; Pollock, On Record PopularMusic, WILSON LmR. BuLL, Dec. 12, 1985, at 2; Brother, Can You Spare A Song?, NEWSWEEK, Oct. 28,1985, at 94; Hil- burn, The Boss--From Idol To Symbol, L.A. Times, Sept. 20, 1985, § VI, at 1, col. 2,4, col.1; Goldstein, ParentsWarn: Take The Sex & Shock Out Of Rock, L.A. Times, Aug. 25, 1985, Calendar, at 67, col. 1, 72, cols. 1, 3. Other commentators have suggested that the outcry against rock lyrics was calculated - designed to reduce musicians' influ- ence. E.g., Cocks, Rock Is a Four-Letter Word, TmE, Sept. 30, 1985, at 70, 71; Kelly, Rock's War of Words, MAcLEANS, Oct. 14,1985, at 95; Levin, Lay Off Of Them Blue Suede Shoes, PEOPLE WEEKLY, Nov. 4,1985, at 42, 44; Marsh, Sympathy For The Devil, Village Voice, Oct. 8, 1985; at 13, col. 1, 18, col. 3; McCarthy, Lyrics: On the Wrong Track, Wash. Post, Sept. 29, 1985, at H2, col. 4. Rock's purported bright and dark sides have clashed in at least one instance. First lady Nancy Reagan was dropped as the spokeswoman for a proposed anti-drug rock benefit because she demanded that acts of questionable character be dropped from the bill. It was reported that she "tried to turn the international event into a debate about offensive lyrics and music censorship." Nancy Reagan fails to censor rock concert, S.F. Examiner, Mar. 7, 1986, at E-5, col. 1. 3. See generally Cocks, Songs from the High Ground, TIME, Oct. 7, 1985, at 78; Brother, Can You Spare a Song?, supra note 2, at 94; Harrington, Rock's Newfound Humanism, Wash. Post, Jan. 15, 1984, at K1, cols. 1, 2. Rock musicians were praised for their fundraising efforts on behalf of world hunger victims and debt-ridden American farmers, e.g., Hamill, A Day To Remember, ROLLING STONE, Aug. 29,1985, at 28; Rock Around the World, NEWSWEEK, July 22, 1985, at 56, and for protesting apartheid, e.g., Barol, 'I Ain't Gonna Play Sun City,' NEWsWEEK, Oct. 28, 1985, at 94. Rock musician Bruce Springsteen was praised by both presidential candidates in the 1984 election campaign as a champion of American values. Wiener, Rockin' With Ron, THE NATION, Oct. 6, 1984, at 309; Palmer, Springsteen's Music Hits Chord of America, N.Y. Times, Aug, 6, 1985, at C13, col. 1. A year later the Parents Music Resource Center (PMRC), a citizen's organization leading the "porn-rock" crusade, criticized Springsteen as a rock pornographer for his song "I'm on Fire." Moran, Sounds of Sew Why Daddy took the T-Bird Away, NEW REPUBLIC, Aug. 12 & 19,1985, at 14, 15. 4. E.g., Bruning, The Devilish Soul of Rock n' Roll, MACLEANS, Oct. 21, 1985, at 13; Davis, Pop Lyrics: A Mirror and a Molder of Society, 42 ET CETERA 167 (1985) [hereinafter Davis, Pop Lyrics]; Gergen, X-Rated Records, U.S. NEWs & WORLD REP., May 20, 1985, at 98; Stroud, Stop PornographicRock, NEWSWEEK, May 6, 1985, at 14; Will, No One Blushes Anymore, Wash. Post, Sept. 15, 1985, at D7, col. 2; Musician, Heal Thyself, AMERICA, Oct. 5,1985, at 182; Hughes, Merchants of Filth, Christian Sci. Monitor, Nov. 1, 1985, at 14, col. 1; Safire, Sex on a Platter,N.Y. Times, Oct. 10, 1985, at A31, col. 1; Goodman, Rock Ratings, Wash. Post,Sept. 14,1985, at A19, col. 1; Weiss, PornRock:A Script For Censorship,Billboard, June 29, 1985, at 10, col. 1; Raspberry, Filth on the Air, Wash. Post, June 19, 1985, at A21, col. 2; see also Cocks, Rock Is A Four-LetterWord, supra note 2, at 70, 78; Zucchino, Big BrotherMeets Twisted Sister, ROLLING STONE, Nov. 7,1985, at 9,16 (senators outraged by PMRC porn-rock presen- tation); Weinraub, Rock Lyrics Irk Reagan, N.Y. Times, Oct. 10, 1985, at C17, col. 3 (President Reagan's criticism of the music industry); Kurtz, No Sympathy for the Devil, PROGRESSIVE, Apr. 1983, at 19 (rock musicians denounced as "minions of mephistopheles" and "Satan's puppets" by the Maranatha Christian Fellowship). The PMRC itself has been the target of criticism. E.g, Heard, Porn In The USA, NEW REPuBuc, Oct. 14, 1985, at 12; Hentoff, The Disc Washers, PROGRESSIvE, Nov. COMM/ENT L. J. [Vol. 9:423 music has always
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