My Take on the Current Climate in Broadcasting

[Dave Farber <dave () farber net>]

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Date: Wed, 14 Apr 2004 15:10:23 -0400
From: "Prof. Jonathan I. Ezor" <jezor () tourolaw edu>
Subject: For IP: My Take on the Current Climate in Broadcasting
To: Dave Farber <dave () farber net>
Reply-to: jezor () tourolaw edu
Organization: Touro Law Center
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For IP if you'd like (as yet unpublished):

DECENT BROADCASTS, INDECENT RESTRICTIONS
By Professor Jonathan I. Ezor
Director, Touro Law Center Institute for Business, Law and Technology

On April 1, 2004, radio personality Howard Stern struck a major blow against
his critics within the U.S. government.

He went off the air.

At 6 a.m. New York time, the manager of Stern's flagship station, New York's
WXRK, announced that Infinity Broadcasting had removed Stern because of
concerns about indecent content.  Instead, the station broadcast a new show
called "Cross and Lopez," whose slogan was "Fun Without the Filth."  The
show, which mixed peppy and often puerile talk with pop songs, lasted a
little more than an hour before Stern and his team came on to reveal it had
all been an April Fool's joke.  More than just a prank, though, Stern's
"replacement" intentionally and effectively highlighted how sanitized
American radio might become if current Congressional and FCC efforts to
substantially increase penalties against broadcasters for "indecent" speech
continue.  Stern's listeners expressed their shock and outrage at the
possibility of losing their favorite morning radio host.  The real damage,
though, is being done to the Constitution.

The challenge faced by broadcasters from Stern to pop music stations to
political talk shows like the new liberal Air America network is that the
law about indecency is far from clear.  There have been some notable court
cases, such as the famous 1978 Pacifica decision where the U.S. Supreme
Court found a station's afternoon broadcast of George Carlin's "Filthy
Words" monologue was properly penalized as "indecent" by the FCC.  Under
this case, while the First Amendment generally restricts the government from
limiting speech, the Court held that the FCC could place limits on
"indecent" speech to keep it away from children.  Neither Pacifica nor the
cases that followed it, though, have provided a simple and usable definition
of indecency when it comes to broadcasters, although that hasn't stopped the
FCC from fining violators including Stern himself in the past.

Even in situations where no legal penalties result, though, management has
acted against the hint of indecency.  In August 2002, Greg "Opie" Hughes and
his partner Anthony Cumia ran the third-annual "Sex for Sam" contest on
their nationally syndicated "Opie and Anthony" radio show, in which
listeners were encouraged to have sex in public places to win a trip to
Boston.  When two contestants were reported to be having sex in St.
Patrick's Cathedral, the resulting controversy was enough for Infinity
Broadcasting, the show's syndicator, to pull the pair off the air (while
continuing to pay them millions under their contract), even though no
indecent language or sex act was ever broadcast, nor did the FCC levy any
fines against Infinity or its stations.

After the recent Janet Jackson SuperBowl halftime debacle, in which a
"wardrobe malfunction" exposed her bare breast for a few seconds on national
television, the climate for broadcasters like Howard Stern has grown even
more hostile.  Legislation to vastly increase FCC fines into the millions of
dollars is speeding through Congress, and the FCC is threatening
substantially increased enforcement.  With those risks facing them,
broadcasting companies from Clear Channel to Infinity have published "Zero
Tolerance" policies for their staffs which not only prohibit indecency, but
even anything that might approach indecency.  In fact, Clear Channel went
even further, yanking Stern's show off its six stations that carried it,
well before a new round of FCC accusations.

That stretching of limits to potential indecency is where the practical and
Constitutional problems lie.  Broadcasting companies are forcing on-air
personalities to avoid saying things which are absolutely legal and
protected under the Constitution.  It's as if subway riders were told not
only to stay behind the yellow line near the tracks, but to step all the way
back behind the turnstiles, to avoid being run over by an oncoming train.
In other words, what Congress is doing by setting the huge fines is placing
a de facto unconstitutional restriction on otherwise legal speech via
intimidation.

Rather than boosting fines to the point where radio stations must choose
between staying in business or broadcasting content that is firmly within
the Constitution but might offend someone, Congress and the FCC should
swiftly work to clarify the actual definitions of prohibited indecency under
the law.  Otherwise, the burden unfairly falls on the broadcasters either to
educate every staff member into the current intricacies of indecency law, or
to leave a large portion of their constitutional protection off the table,
and off the air.

-------------------
Prof. Jonathan I. Ezor
Assistant Professor of Law and Technology
Director, Institute for Business, Law and Technology (IBLT)
Touro Law Center
300 Nassau Road, Huntington, NY 11743
Tel: 631-421-2244 x412  Fax: 516-977-3001
e-mail: jezor () tourolaw edu
BizLawTech Blog: http://iblt.tourolaw.edu/blog

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