University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 1993 The aH rd Case of Broadcast Indecency Lili Levi University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Communications Law Commons Recommended Citation Lili Levi, The Hard Case of Broadcast Indecency, 20 N.Y.U. Rev. L. & Soc. Change 49 (1993). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. THE HARD CASE OF BROADCAST INDECENCY LILI LEVI* Introduction ........................................................ 50 I. The Underlying Dilemma: The Ambiguous Social Meaning of Broadcast Sex Talk ............................................. 57 A. On the Liberating Character of Sexualized Discourse ........ 59 1. Sex Talk as a Challenge to Power: Subversion; Sexual Liberation; Communication ............................. 60 2. Sex Talk as Impermissibly Corrupting ................... 64 3. An Alternative Account ................................. 65 a. Sexuality and the Mainstream ........................ 65 b. The Underside of Humor ............................ 68 c. Sex Talk and Misogyny .............................. 69 B. On Sex Talk, Diversity, and Cultural Pluralism .............. 70 1. Censorship and Governmental "Ethnocentric Myopia" ... 70 a. The Multivalent Character of Sex Talk ............... 72 b. The Exclusion of Blues, Rap, and Punk .............. 75 c. The Social Benefits of Diversity ...................... 80 2. The Conservative Challenge to Diversity and Multi- Culturalism ............................................. 81 3. An Alternative Account ................................. 81 II. The FCC's Troubled Regulation of Broadcast Indecency ......... 85 A. The FCC's Approaches to Regulation ....................... 86 1. The Pre-1987 Standard .................................. 86 2. The Post-1987 Standard ................................. 91 3. The Influence of Interest Groups ........................ 97 4. Application of the New Standard ........................ 101 B. Questioning the FCC's Indecency Standard .................. 112 1. The Commission's "Definition" of Context ............... 113 2. The Implicit Tilt in the FCC's Contextual Factors ....... 119 a. The Acontextuality of the Analytic Vantage Point .... 122 b. The FCC's Narrow Lens ............................ 126 * Associate Professor of Law, University of Miami School of Law. A.B., 1977, Bryn Mawr College; J.D., 1981, Harvard Law School. I owe many thanks for insightful comments on previous drafts to Mary Coombs, Steve Diamond, Marc Fajer, Michael Fischl, Mickey Graham, Pat Gudridge, Betty Hayter, Lisa Iglesias, Jim Kainen, George Mundstock, Marilys Nepomechie, Bernie Oxman, Jeremy Paul, Peggy Radin, Steve Schnably, Allen Shaklan, Katie Sowle, Irwin Stotzky, Kathleen Sullivan, Alan Swan, Larry Tribe, William Twining, Rick Williamson, and Steve Winter. I am also grateful to Mitchell Bard, Lee LeBlanc, Paul Petmzzi, and Scott Rembold for excellent re- search assistance and, especially, to Wendy March, Todd Tedesco, Doris Vigo, and Tom Davis for labors far beyond ordinary expectations. Kim Hawkins and Jody Rosen Knower also de- serve thanks for their editorial input. 49 Imaged with the Permission of N.Y.U. Review of Law and Social Change REVIEW OF LAW & SOCIAL CHANGE [Vol. XX:49 c. The Elusive Manner/Subject Distinction .............. 127 d. The Uncertain Place of Merit ........................ 131 e. The "Chilling Effect" and the Irrelevance of Repentance .......................................... 135 III. The Limits of the Existing Doctrinal Vocabulary ................ 138 A. The Indefiniteness of Current Constitutional Argument in Resolving the Dispute ...................................... 138 1. Pacifica and Sable ...................................... 139 2. Vagueness and Overbreadth ............................. 141 3. The Hate Speech Analogy ............................... 151 B. The Uncertainties of Administrative Law .................... 157 1. The Asserted Lack of Reasoned Analysis ................ 157 2. Procedural Defects ...................................... 168 C. Toward a Regrounding for Constitutional and Administrative Approaches ................................................ 170 Conclusion .......................................................... 174 INTRODUCTION In 1951, a television station in Houston caused a public outcry when it planned to air a bedding commercial showing a husband and wife in a double bed.' Radio broadcasts of rock music during the 1950s led to such outrage that the Everly Brothers' Wake Up, Little Susie was banned in Boston.2 The phrase "let it all hang out" raised eyebrows at the Federal Communications Commission (FCC) during the 1960s and led to the dismissal of the South Carolina disc jockey who uttered it on the air.3 In 1967, the Ed Sullivan Show required the Rolling Stones to perform Let's Spend the Night Together as Let's Spend Some Time Together.' And, in the early 1970s, the FCC succeeded in eliminating a popular radio call-in format, known as "topless radio" for its attention to sexual themes, by the simple expedient of having the agency's chairman publicly denounce it as "a new breed of air pollution." 5 1. J. FRED MACDONALD, ONE NATION UNDER TELEVISION: THE RISE AND DECLINE OF NETWORK TV 105 (1990). 2. LINDA MARTIN & KERRY SEGRAVE, ANTI-RoCK: THE OPPOSITION TO ROCK 'N' ROLL 22 (1988). 3. LUCAS A. POWE, JR., AMERICAN BROADCASTING AND THE FIRST AMENDMENT 167 (1987); see Palmetto Broadcasting Co., 33 F.C.C. 250 (1962), aff'd sub nom. Robinson v. FCC, 334 F.2d 534 (D.C. Cir.), cert. denied, 379 U.S. 843 (1964). 4. PETER FORNATALE & JOSHUA E. MILLS, RADIO IN THE TELEVISION AGE 129 (1980). 5. FORNATALE & MILLS, supra note 4, at 84-85 (describing Dean Burch's speech to the National Association of Broadcasters in 1973); Maria T. Regina, Broadcasting Obscene Lan- guage: The Federal Communications Commission and Section 1464 Violations, 1974 ARIZ. ST. L.J. 457, 461-65 (same). Ever susceptible to such "regulation by lifted eyebrow," broadcasters immediately toned down their talk shows and dispensed with the topless radio format. FORNATALE & MILLS, supra note 4, at 84-85; see also infra text accompanying notes 87-90. The origin of the now-famous reference to regulation by lifted or raised eyebrow is often attrib- uted to Commissioner John Doerfer in his dissent in Miami Broadcasting Co. (WQAM), 14 Rad. Reg. 125 (1956). Imaged with the Permission of N.Y.U. Review of Law and Social Change 1992-931 BROADCAST INDECENCY In the decades that followed, social discourse changed remarkably, becoming increasingly liberalized in sexual content. To watch television or listen to the radio today is to immerse oneself in a discourse permeated with references to sex. "Before you dress, Caress," we are instructed by a soap manufacturer, while television soap operas routinely depict couples lying sug- gestively in bed.6 Late-night television is even more salacious, with a plethora of new "relationship" shows whose contestants describe their dates - "He spread his sauce thicker than Chef Boyardee" - and whose hosts muse out loud over which of two men is "most likely to own mink-lined handcuff's[.]" 7 Mainstream pop radio features songs with barely disguised sexual metaphors, celebrating men with "slow hands" and women with "sugar walls." Most strikingly, morning radio personalities ask callers "what makes your favorite hiney parts tingle?," 9 read tips from magazine articles on "how to spice up lovemaking,"10 and describe "marathon spanking session[s]." Il The notorious Howard stem, "shock jock" extraordinaire,12 warns us not to shake Pee Wee Herman's hand (in light of his arrest for masturbating in a public theatre);13 says that "the closest [he] came to making love to a black woman was... masturbat[ing] to a picture of Aunt Jemima;'" 4 and laments that "it's tragic about Magic and this awful thing, why couldn't it have happened to Larry King[?]"' 5 Typical of shock "humor" is the statement that the "best pick-up line at a gay bar" is "[m]ay I push your stool in for you?" 6 Non-commercial broadcasters as well have challenged the limits of traditional discourse. De- spite considerable controversy, some non-commercial broadcasters have ad- dressed sexuality in programs such as Tongues Untied, a documentary on the 6. See, e.g., Michael Logan, Why Soaps Are So Sexy, TV GUIDE, Apr. 4-10, 1992, at 12, 14, 16, 21; Anthony D'Amato, Harmful Speech and the Culture of Indeterminacy, 32 WM. & MARY L. REv. 329, 344-45 (1991). 7. John J. O'Connor, For a Date (Wink) or a Tease (Smirk), Try Late-Night TV, N.Y. TiIMEs, June 30, 1992, at B1. 8. POINTER SISTERS, Slow Hand, on GREATEST HrTS (BMG Music 1989); SHEENA EAS- TON, Sugar Walls, on THE BEsT OF SHEENA EAsToN (EMI-USA 1989). 9. Rusk Corporation, Radio Station KLOL (FM), 5 F.C.C.R. 6332, 6333 (1990) (Stevens and PruettShow). 10. Claudia Puig, Radio in the Raw, L.A. TImiEs, Feb. 9, 1992, Calendar, at 7 (Mark & Brian Show). 11. Id. (Howard Stern Show). 12. For discussions of shock radio and Howard Stem programming in particular, see, e.g., Steve Daley, Radio Raunch." Ratings Greedor FreeSpeech?,