FCC indecency fight chilling free speech?

When Marv Johnson saw the replays of Janet Jackson's Super Bowl breast flash, he thought: "This means my life's going to be a living hell for a while."

Johnson, legislative counsel for the American Civil Liberties Union (ACLU), was referring to the organization's lobbying effort — so far, rather ineffectual — against the Broadcast Decency Enforcement Act of 2004, which the ACLU claims is unconstitutional. The bill, which would increase potential indecency fines from $27,000 to $500,000 for owners and talent, passed in the House of Representatives with a mere 10 percent opposition on March 11. The Senate vote hasn't been scheduled.

The uproar over the Super Bowl in early February led to a Federal Communications Commission (FCC) indecency crackdown against Howard Stern and other salty broadcasters. The FCC this month proposed $495,000 in fines against Clear Channel Communications for 18 different alleged violations in a single April 9 Stern show, broadcast across six of its stations. That would be the most fines ever levied against a single show, and even larger fines against Stern are expected.

Monday, the ACLU, along with Viacom, the Screen Actors Guild and others petitioned the agency to reconsider its ruling against provocative U2 rocker Bono for his expletive during the Golden Globes. The FCC had reversed its own earlier judgment that Bono's utterance was not indecent.

But wherever you fall on Super Bowl exposures, Stern's scatological antics or Bono's thing for four-letter words, it's hard not to notice all the dead air among some of the broadcast world's loudest voices in a debate that could have a profound effect on free speech. It has been so silent, in fact, that "debate" is the wrong word.

After the proposed fines were announced, Clear Channel permanently dropped Stern from the six stations. (Management at Entercom-owned KISW-FM, which has run Stern in Seattle since May 2001, won't comment on the popular show's future here.)

Stern's own philippics against the FCC and Clear Channel have made him sound like Lenny Bruce reading court transcripts onstage. But other radio professionals, including people famous for being outspoken on nearly any other issue, have largely clammed up.

Stern's morning competitor here on KUBE-FM, "T-Man" Rob Tepper, said he had been asked not to comment, and to refer inquiries to parent company Clear Channel. That San Antonio-based company, which controls 1,200 stations, did not respond to interview requests. Others who wouldn't comment publicly for this article include Chicago's Erich "Mancow" Muller, Opie and Anthony (fired for a listener church-sex stunt in New York), "Loveline's" Adam Carolla and Dr. Drew Pinsky (carried on KNDD-FM), and outrageous satirist Phil Hendrie, whose show is carried on KQBZ-FM.

In a climate where some industry observers have begun to use terms like "witch hunt," many broadcasters talk about a widespread fear in their ranks.

"They hire us to be outrageous, they tell us to go, go, go, and they even get sponsors for what we do," said syndicated shock jock Tom Leykis, heard on KQBZ. But then, he and other broadcasters say, when the political pressure increases, station owners such as Clear Channel are too quick to hang the broadcasters out to dry.

A 'blunt instrument'?

"It's not the government's business to decide what is and isn't decent," says the ACLU's Johnson. "That's up to the individual, the parents and the viewer to make the decision."

But one of the organization's best friends disagrees.

U.S. Rep. Jim McDermott, D-Wash., is one of the few legislators with 100 percent on the ACLU's "scorecard," voting along the organization's lines on its key issues. He bucked the ACLU, however, on the decency bill.

"I think we have a responsibility to protect our children. This is not a First Amendment question," McDermott says. "God knows I'm a First Amendment guy. But there is a need for us to be responsible for what our kids are exposed to, and I think it's the FCC that ought to make those kinds of decisions."

McDermott, who says his feedback on the decency bill has been about evenly split, calls the bill "a blunt instrument. And frequently we have a difficulty because we only have blunt instruments. But I personally don't think children need to be exposed to all the things that we as adults know about and that we do. The public airwaves, we have given them away, and (broadcasters) are not acting responsibly. And the question is, how does the public take control again of the public airwaves? And perhaps this wasn't the best bill, but I think it's a message to them that we're thinking about it."

Veteran KIRO talker Dave Ross takes the other side, arguing that if a show is popular, then the public has taken control of the airwaves — at least in terms of content. "There's no industry more responsive to the market than us," Ross said. "If you stop listening to what we do, we'll stop doing it." His answer to broadcast indecency: "Just pay attention to what your kids are watching. It just isn't that difficult."

The professorial Ross isn't trying to protect his own right to foul the airwaves. "I don't even use words like that off the air," he commented. Yet he says of the bill: "I clearly think it's unconstitutional. 'Congress shall make no law' is pretty clear.

"The concern, of course, is that if Congress has the power to outlaw one word, it has the power to outlaw another word. ... And the fact that it was indecency and not politics doesn't make that much difference, because if you give the government the power to decide what you can hear, you've given them power over discourse."

Ross added: "It was smart politically to go after Howard Stern, because very few people are going to stand up and support him. ... You pick a safe target and you go after it, and people think they're going after the person. But in fact, the mechanism they're using is going after free speech."

More complaints

Bob Eatman, the radio agent for Chicago shock-jock Mancow (whose show is not carried in Seattle but is syndicated from WKQX-FM in Chicago), expresses palpable frustration with the crackdown on radio raunch.

"What have been the problems listening to this? Are 7-year-olds listening to Mancow's show? He tells parents not to let their kids listen," he says. "Advertisers aren't after that demographic. How many 7-year-olds are listening to Howard Stern? Are they unsupervised? Are they in the car driving themselves?"

Figures for 7-year-olds aren't available, but teens were just 1.8 percent of Stern's audience in the markets where Clear Channel dropped him — less than half of the 4.3 percent they make up in his national audience, according to Arbitron stats from the trade magazine Radio and Records.

The FCC won't comment on the indecency issue. But it will give basic facts and data — including statistics showing an explosion of complaints. This year, as of just after the Feb. 1 Super Bowl, the FCC had received 530,885 complaints about broadcast indecency; 530,828 were about the Super Bowl (which had an estimated audience of 90 million viewers). The remaining 57 were for 23 other programs.

In 2003, the FCC received 240,350 indecency complaints, mostly about nine shows, including the Golden Globes which aired singer Bono's expletive.

In 2002, there were just 13,922 complaints, mostly for four programs, including the church-sex broadcast that got radio's Opie and Anthony fired. In 2001, there were 346 complaints.

What accounts for the jump in volume, even before The Breast? The FCC says it's mass complaints through e-mail. Web sites such as the Parents Television Council's make it as easy as hitting a button. That adds an irony to the current debate: The same Internet that has allowed an explosion of edgy or objectionable material has also made it far easier to complain.

Still, it can take as little as a single person complaining to trigger FCC action. Mancow, for example, faces $42,000 in FCC fines for coarse antics. But Eatman, his agent, says those fines result from complaints filed by an individual. (The Chicago Tribune reported that David Smith, who works for a group called Citizens for Community Values, filed 66 FCC complaints against Mancow from 1999 to 2003.)

If the numbers simply reflect a very vocal minority, shock jock Leykis says that a passive majority will get exactly what it deserves. If listeners who made the racy shows popular in the first place don't speak up to their representatives, they'll wind up with sanitized airwaves, Leykis says.

In investigating indecency complaints, the FCC first looks at whether the offending program used gratuitous material on sexual or excretory functions. Then it makes a more subjective judgment: how that material fits into contemporary community standards.

The ACLU's Johnson says FCC chairman Michael Powell "doesn't seem to be terribly concerned about the definition of indecency, but it's so vague that it tends to chill free speech. If (a controversial show) didn't sell and didn't sell advertising, it wouldn't be running, so that obviously doesn't apply to the average person in the community.

"Usually people talk about a chilling effect. This is more like a freezing," Eatman says. He believes the crusade is an election-year smoke screen. "Is it that conservatives don't want us to focus on the issues?"

There's more to it than that, according to University of Washington journalism professor David Domke. "It's also rooted in a sense that America as a nation is struggling to reclaim its place morally on the planet since 9/11."

In his forthcoming book, "Fundamentalism and Fear," Domke makes a provocative argument about a United States where people can lose careers and be fined vast sums simply for things they utter, and where the indecency battle is just one front in a larger brewing culture war.

Domke disagrees with McDermott on whether the bill is compatible with the First Amendment.

"Generally, I think it doesn't square," he said. "It's contradictory with it. ... I think the position where most Americans live is the balance between free speech and security. So when speech is perceived as threatening security, then the public will say that's not appropriate."

The current uproar about indecency, he adds, has nothing to do with security. "I don't see where Howard Stern is a threat to the nation in any way," Domke says. "He's not my cup of tea. But he's been around a long time, and the nation's been doing pretty well."

So how is this all going to play out?

Max Tolkoff, a columnist for Radio and Records magazine, is betting the true test will come if ratings go down because shows become bland.

"There's been a climate of envelope-pushing in radio for 10 or 15 years, and the strength of the response from Congress and the FCC surprised everyone," Tolkoff says. "All of a sudden the government has entered the culture wars. But is it the government's job to be in the culture wars?"

He also doesn't think the dead air on the part of broadcasters and free-speech advocates will last. "I think right now the pendulum is so far over into the side of 'Let's police everything.' I think the debate is just beginning. The forces of reason have not had time to regroup and marshal their forces. I think we're going to see the debate go very far in the other direction as soon as people start talking about it."

Mark Rahner: 206-464-8259 or mrahner@seattletimes.com