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.