The daily Stern: It’s the First Amendment, stupid

The daily Stern: It’s the First Amendment, stupid
: Thought you’d go a day without a report on Howard Stern and freedom of speech, just because it’s on the weekend? No way!

Nation editor-in-chief Katrina vanden Heuvel blogs on Stern (linking to this very Stern-heavy blog) and makes it, indeed, a First Amendment issue:

When Clear Channel yanked Howard Stern for violating its new ‘zero tolerance’ obscenity policy, the network cited as its reason a racial epithet made by one of Stern’s listeners. But, Clear Channel’s explanation is hogwash.

I agree with the many people who think that Stern is offensive to minorities and women. He’s degraded the quality of radio by trafficking in crude sexual references and unseemly racial remarks for as long as he’s been in broadcasting. But the issue here isn’t indecency; to paraphrase James Carville, it’s the First Amendment, stupid….

Clear Channel’s decision to fire Stern signals the latest target in its sights–the Bill of Rights. Its decision is based not on any pious, self-serving qualms about indecency on its stations but on its desire to curry favor with Bush and his Republican Congressional allies.

The implications are alarming. If Clear Channel can yank the commercially-successful Howard Stern, then it has the power to silence any DJ or radio kingpin who refuses to play the network’s chosen music, adhere to its appointed standards, or mouth Clear Channel’s political line.

Its decision to pull the plug on Stern coincides not with a sudden increase in Stern’s offensive behavior but with a rise in Stern’s anti-Bush rhetoric. According to Jeff Jarvis of the blog Buzzmachine, Stern “has become an anybody-but-Bush voter,” based, in part, on his concerns about the threat of censorship from the FCC. Stern also recently endorsed Al Franken’s book on the air.

Is it a coincidence that Stern came out against Bush shortly before his suspension? Or that Clear Channel president John Hogan was due to appear before a House subcommittee investigating indecency over the airwaves, on the heels of Janet Jackson’s “wardrobe malfunction”?

What is not under dispute, according to the Center for Public Integrity, is that Clear Channel vice-chairman Thomas Hicks and Hick’s law firm have given Bush more than $225,000–and Clear Channel’s PAC, executives, and their relatives have given three-quarters of their political donations to the Republican Party.

So, they couldn’t have been too happy to hear Stern’s recent on-air rant about the president: “Get him out of office. I’m tellin’ you, man, he’s in dangerous territory [with] a religious agenda and you gotta vote him out–anyone but Bush,” Stern railed….

“When these insider dealings were exposed by the Houston Chronicle in 1999,” Micah Sifry wrote in his blog about Stern and Clear Channel, “Hicks resigned from the company’s board. By then, he had made Bush a rich man when he bought the Texas Rangers from him and his partners in 1998 for $250 million, three times their investment in the team.” …

It’s the First Amendment, stupid.

I’ll say it again just because it sounds so nice: It’s the First Amendment, stupid.

: AP story on Stern here.

: The FCC didn’t announce fines on Friday but they are working on them. From Bloomberg:

The Federal Communications Commission is close to levying about two dozen fines for indecency against radio companies, including Viacom Inc.’s Infinity Broadcasting and Clear Channel Communications Inc., FCC documents show.

“At the end of 2003, we had pending more than two dozen cases in the final stage of investigation, and anticipate enforcement action in all or most of these cases within the next few months,” FCC Chairman Michael Powell said in a letter to U.S. Rep. John Dingell, a Michigan Democrat. The March 2 letter was released Friday.

: The Economist on the cast:

Mr Powell’s new passion? Smut.

Unlike those fiddly telecoms and media rules, the FCC’s assault on indecency has yielded gratifyingly quick results. Janet Jackson’s breast, which escaped during the Super Bowl half-time show, is safely under wraps again. Radio shock jocks, such as Howard Stern and (the somewhat less famous)

  • John Mendenhall

    You’re on a sharp-thinking roll, Jeff! I have an idea–why don’t you, and van den Heuvel, and maybe Michael Moore and Al Gore and buy a big media corporation and give Howard Stern a job saying whatever he wants to say on YOUR radio station?
    The First Amendment doesn’t protect us from evil corporatists who pay us salaries, Jeff. It protects us from the government, and may thanks be to God for that, I’m sure we agree.
    Actually, I have it on excellent authority that the firing was actually engineered by the good corporatists who are going to broadcast Al Franken…

  • Charlie (Colorado)

    If Clear Channel can yank the commercially-successful Howard Stern, then it has the power to silence any DJ or radio kingpin who refuses to play the network’s chosen music, adhere to its appointed standards, or mouth Clear Channel’s political line.

    Well, duh.
    Yes, Katrina, if Clear Channel doesn’t want to keep paying Howard, it can fire him.
    Just like MSNBC doesn’t have to keep paying Michael Savage, or ESPN Rush Limbaugh.

  • Charlie (Colorado)

    Jeff, I’m really puzzled here. I think everyone who is a regular gets it that you’re pissed off. But take a deep breath, give it a little thought, and explain to me just exactly what you think is wrong and what ought to be done.
    I mean — well, Katrina asks “is it a coincidence that Howard came out against Bush before he was removed from Clear Channel”? The answer, of course, is that we don’t know it was a coincidence, but the question implies a pretty clear post hoc ergo propter hoc — especially given that the Janet Jackson Nipple Incident happened, and that made a lot more fuss than anything Howard said recently. Why imagine that liking Al Franken’s book has anything to do with it?
    Similarly, Katrina (and you, apparently) think Clear Channel is wrong to drop Howard given the political pressure on broadcasters. Okay, I understand that — but are you really asserting that it’s a First Amendment violation for Clear Channel to choose to do so? As far as I know, the First Amendment doesn’t say anything about an obligation to continue to pay for a product you don’t want, even if that product is speech. If, on the other hand, you think it’s the government, are you really asserting that the FCC called Clear Channel and threatened them if they continued carrying Howard? And if it’s all the VRWC, why is it that the reaction is in a letter from Mike Powell (a Clinton appointee) to John Dingell (a Democrat Congressman)?
    Given that Howard has had a long history under Clinton’s administration of being fined big bucks (six and seven figures a pop) for indecency, why do you imagine that it’s political content at all?
    (Did you object to those fines then? That was government regulation of content. And don’t, please, tell me that this is “prior restraint” but that wasn’t: in both cases, the proposed fines are for “indencencies” that have already happened. All they’re saying now is that the fines they’ve had to date aren’t enough to get the effects they want.)
    Finally, if you’re opposed to the government controlling content, does that mean you think there ought not to be rules against cigarette ads? How about the furor about liquor ads a while ago? I just heard a suggestion (from the APA) that childrens’ programming ought not to have commercials at all. (No suggestion who would pay for the children’s programming.) Should the licensing requirements include a requirement to broadcast PSA’s as it does now?
    All those regulations are clearly government regulating content.
    If, say, Michael Savage were to start talking about buck niggers rapin’ white women, should the government act then? Would it be wrong for Clear Channel to drop him? How about if it were to drop him after Mike Powell said it was offensive and a violation of the station’s license? Wouldn’t that be reacting to government pressure then? (But then, if it was all right for Clear Channel to fire this hypothetical Savage before the government complained, do you mean that it’s a violation of the First Amendment to fire him once the government complains? Does that make sense?)
    Is it only a First Amendment violation when the government regulates content that you like?
    I really meant not to post another comment on this, but I’m honestly and seriously puzzled. You’re a sharp guy and a helluva writer, but on this topic I simply can’t abstract out a coherent picture of what your point is.

  • Paul Phillips

    Your fixation on Howard Stern and his perception as a victim of a vast conspiracy has become tiresome. I was ready to give you my reasons why but the previous posts have already expressed them. I used to listen to Stern every morning until my kids were three. After that I wasn’t in the mood to explain evry sexual comment to them at that time. I still watch the E! show but usually turn it off when it is some unintelligent woman who only wants to strip. You’ve seen one you’ve seen a hundred. I do miss Hank, the angry drunken dwarf.

  • dingbat

    you read romenesko — all those newsies getting fired for stepping over a line that seems to keep changing.
    nobody’s howling first amendment there.
    Bill Maher got fired for saying something his employers didn’t like, too.
    you work in the mine, you walk the line.

  • Kurt

    I’m with Charlie(Colorado) on this one. I guess according to Jeff et al. the government has no business regulating content of any kind, anytime. Anything is OK if somebody will buy it. No line is ever to be drawn (unless the line is, perhaps, drawn by Jeff?). Right.
    Frankly, this whole issue is silly beyond belief. Howard Stern’s apocalyptic “culture wars”: The forces of cheap toilet humor vs. the forces of conservative Christians.

  • http://www.buzzmachine.com Jeff Jarvis

    Charlie, dingbat: Let me say this one more time: The action(s) against Stern come as a result of Government pressure and it is that government pressure on and chill on free speech to which I strenuously object. Other people have been fired by media for good and bad reasons and that is their business. Repeat: busienss. But what we can and cannot say and who can and cannot say it is NOT the busienss of government — or rather, it should not be. That is my issue. That is what makes this a First Amendment matter.

  • http://www.buzzmachine.com Jeff Jarvis

    … And, yes, Charlie, that is pressure from both Democrats and Republicans….

  • TomK

    Jeff:
    Could you please address Charlie’s point about firing before or after a fine? As numerous people have pointed out, Stern’s gotten some major fines in the past. If Clear Channel had gotten wind of a potential fine coming, is it a violation of free speech to boot Stern preemptively in an effort to avoid being involved with that that fine? If the fine comes, and then they boot Stern, is it no longer a free speech issue, and rather a simple business decision? Or is it a free speech infringment in both cases, because it’s government coercing someone to toe the censor’s line?
    Your response to this line of thinking would go far toward helping me understand where you’re coming from.

  • Charlie (Colorado)

    All right, Jeff, you want a civil conversation, you keep a civil tongue in your head.
    You want to call me “dingbat”, let’s call a spade a spade. You’re not answering my serious and well-meant question. Why? What part of “where is the line and what do you propose should be different?” are you not understanding? Should Clear Channel be required to continue Stern specifically because there’s government pressure? Or is Clear Channel required to put anyone on, no matter what Clear Channel wants?
    And if so, when do I get my multimillion dollar contract and drive-time syndicated program?
    I agree with you on the undesirability of government content pressures. I’m just asking you, if you’re opposed to it, to take a coherent position on other areas of content regulation.
    Except I’m suspicious that you’re not thinking coherently about this. Doubly so, now.
    I’ll look forward to your apology for lowering the level of your own comments to name-calling.

  • http://twistedspinster.com/ Andrea Harris

    ACtually, Charlie, Jeff was referring to you and another poster calling himself “dingbat.”

  • Charlie (Colorado)

    Oh.
    Uh, never mind.

  • Charlie (Colorado)

    Okay, I just mailed this (in part) to Jeff:
    I didn’t notice that some dingbat had chosen the handle “dingbat” and
    thus thought you were calling *me* a dingbat.

    It was, therefore, me that was out of line.
    Sincere apologies.

  • Charlie (Colorado)

    I guess according to Jeff et al. the government has no business regulating content of any kind, anytime. Anything is OK if somebody will buy it.
    Just by the by, Kurt, actually that is my position.

  • rodrigo

    “Mr Powell seems finally to have grasped that his real job is not to craft good rules but to make people happy”
    Interesting, Howard Stern on friday, believing that his days on the radio were numbered said that all he wanted to do was “make people laugh”
    i guess the problem is that the government doesn’t have a sense of humor and Mr Powell is listening to the wrong people. Is the Bush administration out of touch with the people?
    rigo

  • Jim

    LOL…Since when was Katrina van den Heuvel considered authoritative on *any* subject? She’s a full-blown far-left, tinfoil-hatted, “Bush is Hitler” conspiracy nut…
    According to her, anyone to the right of her is either plotting murder and mayhem in her distinctly upper class neighborhood in the name of theological, racial, social or ideological purity *or* is a liar for denying that they are…
    (and no, Democrats aren’t safe from her crackpot theories either…they’re just “Bush apologists” or “appeasers”)
    Quite frankly I’m surprised you waste your time reading her tripe, let alone posting excerpts…
    I’m sorry, Jeff, but vast majority of folks have already figured out that the easiest way to find the correct answer to any given question is to find out which way she’s leaning and turn 180 degrees…
    If I’m on the opposite side of the issue from her, then my opinion is only confirmed…

  • http://www.bennett.com/blog Richard Bennett

    Seriously, Jeff, when you’re being quoted by Katrina and you find yourself agreeing with Katrina, the time has come to re-evaluate your position.
    This whole decency hullabaloo was set off by *Janet Jackson*, so if you have to blame somebody (other than Howard himself) for Stern’s latest fine, blame her.
    Beyond Janet Jackson lies tin-foil hat territory.

  • http://www.buzzmachine.com Jeff Jarvis

    Ah, but Rush agrees with this stance, too. Can’t call it a left-wing or right-wing issue. It’s the First Amendment, stupid.

  • http://www.buzzmachine.com Jeff Jarvis

    And, yes, Charlie, I most certainly was not calling you a dingbat. Whenever I answer comments directly, I start with the poster’s “names.”

  • Susan

    What about the religiously fanatical Collectivist imposing their speech codes on the non-religious?
    Stern is too late, “the last days of Pompeii” have come and gone.
    The Collectivist’s political correctness has seen to that.
    All Hail Katrina vanden Heuvel.

  • Jeff B.

    Folks (and Jeff, I sent you an E-mail about this, so check your mail), I’ve stayed out of this particular issue for the most part, but I pretty much sided with Charlie and other regulars in thinking that Jeff was wildly overstating his case for a threat to the First Amendment here.
    I’m not so sure anymore. I’d like to direct attention – especially the attention of the righties in the crowd like me – to John Hawkins of Right Wing News: http://www.rightwingnews.com/archives/week_2004_02_29.PHP#001834
    I imagine that Hawkins, like Charlie and me, would have no problem with the FCC enforcing fines and regs that are currently on the books, and in that we all differ from Jeff (Jarvis). But he makes a convincing case that the new bill that the House will be voting on (and most likely approving), which raises indecency fines through the roof and authorizes license-revocation hearings for only the third offense, is “stealth censorship” and should be stopped.
    My secret shame, which I feel compelled to acknowledge, is that I would likely have been less receptive to this argument, which to me is pretty common sense, had it come from Jeff or another committed leftie. I had generally concluded that this was all over-hyped hysteria, driven by unconscious frustration with Bush in other areas. But I know Hawkins (whose site is excellent and well-regarded with reason) isn’t selling me a Bush-bashing bill of goods; that’s why I highly recommend other right- and libertarian-leaning folks posting here check it out.

  • John

    I was driving home Saturday night and happened to catch a replay of some show by Michael Savage from this past week on XM Radio. What surprised me in the time I listened to it, compared with the times I had heard him in the past before his MSNBC-AIDS controversy, was that he sounded as if he was on Valium. He still went after the usual suspects, but the tone was way, way down from the out-of-control rants I had heard on his show in the past.
    Maybe I just happened to catch a segment that was an aberration from the rest of the show. Maybe Michael’s suffering from the flu and just couldn’t get into full rage mode. Or maybe, having been chastised by losing his MSNBC deal and being yanked off WABC Radio in New York (he’s back on there now, but on WOR), he doesn’t want to blow it again by going over the line and getting into the censors’ Doppler radar zone again.
    Does this mean Savage’s First Amendment rights have been abused because Michael has muzzled his more passionate utterings? Well, if you presume Savage is guaranteed 15 hours a week on national radio to say what he wants. Other than that, he’s responding to prevailing community standards to tone down his act and avoid protests about what he’s saying which could lead to either direct action from his employer or indirect action, if the complaints go through the FCC which then threatens potential action against his syndicator and the stations that carry him.
    Stern’s in the same boat. If the climate after Janet’s breast show means standards are tighter, he can adjust or he can quit and/or go to satellite radio, just as Savage has appeared to have done. Right now, though, he appears more determined to become the Lenny Bruce of his generation, which could mean his show a couple of months down the line may turn into four hours of reading from FCC hearing testimony (or having lesbian strippers read from FCC hearing testimony. Hard to see how Robin’s going to keep laughing through that).
    And as for Katrina, she kind of lost me as an all-knowing authoritative source when she went on Hardball during the Clinton-Lewinsky squabble and couldn’t remember the name of her own congressman. Fortunately nowadays there’s Google to help out with that problem, so long as she can remember the number of her Congressional district or the phrase

  • Trump

    “Congress shal make no law……”
    Can you tell me again what part of Stern’s first ammendment rights have been violated?

  • No

    It seemed appropriate to move and crosspost here on this thread:
    It’s not about the First Amendment at all…study your Communications Act passed by Congress and affirmed by courts, re: public airwaves and free speech.
    Jeff is way off base in the HS and Mel comparison. Mel paid for his own ‘speech’ by self-financing his ‘program’ and selling the subsequent product to exhibitors who maintain (via MPPA) a self-censorship system. They didn’t have to buy his film by the way…production and distribution has been separated from exhibition since the Supreme Court issued the Paramount Decree of Divorcement. HS is an employee of a large corporation that operates within the rules and regulations of the FCC decrees (of ‘censorship’) voted on by Congress and subsequently affirmed through a variety of court decisions. HS…and to be fair, many others…have been operating way outside the bounds of decency policed by the FCC decrees for years.
    Film has been affirmed an ‘artistic medium of free speech’ 1952 (Joseph Burstyn v Wilson and Boad of Education) Radio has NEVER been legally affirmed as a medium of unlimited free speech. So not, NOT, a First Amendment issue at all.
    And Jeff, you may be surprised to find that in Supreme Court cases citing this precedent Renquist, White, Thomas voted for fewer restrictions in this area! (City of Cincinnati v Discovery Network, 1993.
    And…I should have added, Jeff, greater restrictions on the disemination re: free speech in the Cincinnati case were affirmed by the majority (leftists) Blackmun, O’Connor, Scalia, Kennedy, Souter . Interesting, no?
    Dr No

  • Charlie (Colorado)

    Re the dingbat thing — it’s a helluvan advertisement for quotation marks, isn’t it?

  • Charlie (Colorado)

    I’ve apparently been less than completely clear about my position, which puzzles the hell out of me — but since I have let me hit some bullet points:
    - On philosophical grounds, I don’t approve of any government interaction on broadcast context. In fact, I think the bandwidth should be auctioned to broadcasters, and content control should be done only on a retail level, at the tuning control.
    - I don’t, however, think it’s appropriate to take Clear Channel to task for responding to political pressure, and progressive fines. I don’t know enough to know how to compute the sums offhand, but it’s clear that if CC was only broadcasting Stern on six stations, and they faced possible fines in the hundreds of thousands of dollars, the expense of running Stern could easily overwhelm their profits. At which point they would be violating their fiduciary duty to stockholders if they did continue Stern.
    - I think making the assertion that this pressure is coming from Bush is delusional, until and unless someone actually shows some actual evidence.
    - … and I think letting political distaste for Bush lead into making it an anti-Bush topic is both unfair, and actively contrary to the real interest of preventing the FCC from taking control of content.

  • Ryan

    “So, they couldn’t have been too happy to hear Stern’s recent on-air rant about the president: “Get him out of office. I’m tellin’ you, man, he’s in dangerous territory [with] a religious agenda and you gotta vote him out–anyone but Bush,” Stern railed….”
    Which is why Clear Channel recently picked up noted Bush Lover Randi Rhodes. Their evil knows no bounds.