Howard Stern: Free speech vs. public decency

Howard Stern: Free speech vs. public decency

by Gregory R. Norfleet, December 2009

It seems Howard Stern is constantly in the press for going too far with his shock-jock radio program. But, is he just another crude pervert on the radio? From the multi-million dollar deal he struck with Sirius satellite radio, one might say he is the most popular and well-paid radio personality in American media. Yet, Stern's antics serve to highlight not solely a voracious American appetite for sex and gossip but more importantly a mounting tension between free speech and public decency.

Where is the line of public decency?

Howard was not the only entertainer pushing the envelope in 2004. Who can forget Janet Jackson's infamous "wardrobe malfunction" during last year's Super Bowl half-time show. Yet, this reputed "miscalculation" has apparently sent us back to the decency dark ages.

It has been under this new more conservative climate that Stern apparently pushed even his own listeners or at least his loyal detractors too far. Last April, "listener" complaints prompted the Federal Communication Commission (FCC) to impose a $495,000 fine again Clear Channel Broadcasting for its airing of obscene or indecent material.

Howard Stern: Where is the line between free speech and public decency?

Following the FCC fine, Howard Stern's radio program was promptly dumped by six Clear Channel stations. Complaints had originally come pouring into the FCC after a Stern show on oral sex. The offense: Stern's talk of sex had been punctuated by sounds of flatulence. Yet, he inflamed parts of his audience when he interviewed Rick Solomon, most known for being caught on film having sex with Paris Hilton. The offending discourse this time: Solomon's sexual encounters with famous black women.

But Clear Channel isn't going to take it lying down anymore

The Rick Solomon interview proved to be the last straw for Clear Channel, which had created a zero-tolerance indecency policy. Stern was promptly kicked off Clear Channel for violating the new company policy.

Just what is indecency anyways?

Historically, the FCC has had authority to regulate content on the radio because the airwaves can be picked up and listened to by anyone with a radio, including children. But, the FCC does not have anyone specifically listening to the radio attempting to catch violators in the act. Instead, the commission relies on listeners to complain.

But, just what kind of guidance are listeners provided with. Well, according to the FCC, obscenities are prohibited from radio entirely (think: George Carlin's list of the Seven Words You Can't Say on Television). Indecent speech, acts or images are more difficult to regulate and more difficult to define, as indecency according to Stern is a more vague term.

According to the FCC website, indecent material is any word, sentence or image that "depicts or describes" sex or sex organs as well as excrement or excrement organs. But, as Howard Stern so aptly pointed out, even Oprah's show would violate that restriction. In other words, this term is so broad, Stern argues "How do you know you've crossed [the line of indecency] if they don't say where the line is?"

The federal courts ruled long ago that broadcasters must be allowed to freely share opinions on any subject that serves the public interest. So, if a show discusses taboo subjects but they serve the public interest, where exactly does the FCC draw the line?

Rest assured, Oprah Winfrey has nothing to fear. The FCC has stated on their website that speech is indecent where there is a "clear and present danger of serious substantive evil." This standard would appear difficult to reach but Stern has certainly run afoul of it.

In an odd twist, the FCC has since March actually put the responsibility on Broadcasters to draw their own code of conduct. FCC Chairman Michael Powell hopes enabling the National Association of Broadcasters (NAB) to create a decency standard might mean fewer complaints. The question becomes: is this top-down pressure just another way for the FCC to keep broadcasters and their entertainers in line?