The Daily Stern

The Daily Stern

: TAKE IT BACK: A wide-ranging group of concerned Americans — broadcasting companies, performers’ unions, Margaret Cho, Penn & Teller, the ACLU, Minnesota Public Radio — filed a complaint with the FCC yesterday asking it to revoke its decision calling Bono’s F-word profane.

Written by Robert Corn-Revere — a First Amendment attorney I spoke with for my soon-to-appear story on all this — and a colleague, it points out the absurdity of the FCC’s position (and, by extension, Congress’ efforts to make things even worse). Lowlights:

The Commission

  • bob

    Nice extension to yesterday’s post. (The article quoted only part of the complaint, Jeff obviously looked into it.) Thanks! The full text of the petition can be found here. (PDF)
    The problem with your argument – and that of the complainants – still exists: there is no first amendment right to access the broadcast media. Otherwise, no one could be granted exclusive broadcast access. Access that Stern relies upon to transmit his speech.
    That speech is protected, but its broadcast is not. No differently, I’m allowed to say just about anything (excepting obvious things like a violent threat), but I do not have the right to demand that it be broadcast. Even if a whole lot of people want to hear what I have to say. Even if I’m right and everyone else is wrong. Just doesn’t matter.
    Sorry, you still haven’t resolved this error. (Or even suggested that such a resolution exists.)
    Is the FCC’s recent string of rulings and other statements confusing? You bet. On that, I agree. Frankly, they’re being ridiculous. But that’s legal, even for a government agency.

  • Trump

    YAWN.
    We’ll get Stern off the air and make him pay.

  • KMK

    Bob – Your question is obvious. (instead of responding in both comment threads I’ll leave it here) No one, Rush, O’Rielly, Oprah, Hannity, etc. has the right to broadcast. They are hired to entertain. If you’ve followed all of Jeff’s here, here and here’s you’ll see I’ve never said it’s all about Stern. I’ve said the opposite “It’s not just about Stern.” It’s about the government chill on broadcast speech. It’s about moving the line during an election year, it’s about consolidation, and it’s about the first amendment. It’s about special interest groups getting a private meeting with the FCC. It’s about Congress arming the FCC with new powers like upping the fines to ridiculous amounts, being able to fine a DJ instead of just the station, being able to revoke a license after 3 fines, and lastly changing the way in which a complaint can be made. (before you needed specific info in order to lodge a complaint and now they just need the name of the show an approx. date and your complaint) Stern’s last fine was 10 years ago. For 10 years he’s been doing the same shtick. Janet shows a breast, Bono says F and the FCC goes after Stern? Nicole Ritchie, “Simple Life” co-star, said on live television (fox, music awards), “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple,” unbleeped, after the Bono incident. Where is the FCC on this? They have been selective (and comatose for 10 years) and now they want more regulatory power. This serves the public how? It doesn’t, it serves government and that’s the danger.
    From the petition “The indecency policy has long been recognized as a very limited exception to the basic constitutional command that the government cannot reduce viewers or listeners to viewing or only hearing what is fit for a child.”
    Left unchallenged the FCC will reduce us to Tesh network viewing and listening between the hours of 6 and 10.

  • Andy Freeman

    > I’ve said the opposite “It’s not just about Stern.” It’s about the government chill on broadcast speech.
    You’re still wrong.
    You’re complaining about restrictions on media speech. You’ve yet to complain about the far more stringent restrictions on political speech by not-media, restrictions that media, for the most part, promotes/advocates/etc.
    When media starts caring about my political speech, I’ll start caring about their boobie speech. As of this moment, they’re still campaigning against my political speech.

  • bob

    KMK:
    I think most of your concerns are reasonable, even if I don’t agree with all of them. Obviously, whether he’s being unfairly targetted is worth debating, as is whether Congress should expand the FCC’s power.
    But, you put it best (or worst, depending on perspective): “and it’s about the first amendment.” Since there’s been no violation of his first amendment rights, no it isn’t. In fact, not only is it not about the first amendment, but injecting the first amendment into the discussion, even as an afterthought, is just goofy.
    For a good comparison, look back to Jeff’s post on Gmail and privacy complaints. Privacy groups are flipping out over Gmail, claiming that it violates our privacy. Of course, a good argument could be made that Gmail is intrusive, but a solid response is that it’s voluntary. There’s no privacy violation. Jeff snidely dismisses the privacy hysteria, and rightly so. But now instead of privacy, it’s censorship, and Jeff is at the forefront of the hysteria.
    He takes an opportunity for what could be a pretty rational discussion over Stern – is this unfair, is he being targetted, did he and should he cross a line – and turns it into a circus show. Watch the I-Hate-Stern and Save-Stern crowds get worked into frenzies; watch nothing get accomplished.
    And that’s not a bad thing, if you don’t care about the issues. Or if you just want to get worked up. In fact, I’ll bet that anti-Stern forces are loving it, as demonstrated by Trump. After all, hysterical arguments don’t reinforce a cause, they discredit it. (See anti-war cause for innumerous examples.)
    But I don’t think that this is what you or Jeff are aiming for. If it is, okay. Just don’t be too disappointed at the guy who keeps poking at that gaping wound in the argument.
    Meanwhile, there’s great fun to be had at the expense of the FCC over much of the confusion they’re causing. But since Stern fans can’t seem to take a decent shot at the FCC without expressing confusion over the first amendment, they become the spectacle. (A drunkard laughs at a crowd of drunks for their foolish behavior. Laugh with him, or at him? Easy decision.)
    There’s also talk of giving the FCC regulatory power over cable. That’s scary. Traditionally, the FCC has had regulatory power over the airwaves largely because the FCC was already handing out exclusive broadcasting rights. There’s a blurry line between deciding who gets to broadcast and what they can broadcast, since exclusion of one entity automatically excludes its message.
    However, there is no exclusivity in cable. For practical purposes, there’s no exclusivity in satellite. And yet, the FCC is very interested. THAT is worrisome. After all, once the private sector veil is pierced (pardon the corporate theft), it’s hard to reason why other private speech shouldn’t be equally regulated. Uh oh.
    However, it’s still Circus Circus. Why engage in a discussion when you can just make a farce of your own interests, instead? Why, indeed.

  • KMK

    Andy – read O’Rielly’s comments – even O’Rielly has thrown his hat in the ring.
    http://www.naplesnews.com/npdn/pe_columnists/article/0,2071,NPDN_14960_2818416,00.html
    Bob – There is nothing goofy about the first amendment. I fall into neither camp you describe. I wouldn’t say I’m a fan but, I’ve been listening to Stern on and off for 20 plus years. I remember the Imus days. Stern is like a cat and always lands on his feet. I have no doubt he’ll play this out just fine. I put my faith in the supreme court. They have always sided with the first amendment and always will. Getting to the supreme court decision will be a task as I outlined in my prior thread comment. G-mail – could care less it’s voluntary. I worry that all this kerfluffle over speech will leak to print media – cable – satellite – and internet. At the NAB this week there are 2 prominent discussions, analog vs. digital and the FCC. I have been attending the NAB for 14 years. Never has the FCC come up in a discussion of the first amendment. If your broadcasters are talking about it you should be worried. If station lawyers are interested in content you should be worried. This isn’t about Stern he’s just the first rung on the ladder.
    “None of this is any great loss, but that’s just so far. Congress is seriously considering cranking up FCC fines to a half-a-million dollars a pop and the FCC’s crackdown has set off furious self-censorship. The chilling effect is approaching freezing.
    The FCC applies an

  • Andy Freeman

    > Andy – read O’Rielly’s comments – even O’Rielly has thrown his hat in the ring.
    So? O’Reilly is media, and they protect their own, which is precisely my point.
    However, now that KMK has cited O’Reilly as an authority, we can expect that KMK’s positions will coincide with O’Reilly’s….

  • Andy Freeman

    > I put my faith in the supreme court. They have always sided with the first amendment and always will.
    Actually, that’s false. The Supremes didn’t overturn anything on 1st amendment grounds until the 1900s.

  • KMK

    No, Andy, I’m a liberal and a Democrat and I’ll be voting Republican for the first time in my life. I defy some odds. I don’t like O’Reilly I only meant to point out that he’s not happy with the media on the whole either. 1900s? What century would you like me to go back to on the first amendment?

  • Andy Freeman

    > 1900s? What century would you like me to go back to on the first amendment?
    Huh? KMK claimed that the Supremes “always sided with the first amendment and always will.”
    Both parts of that claim are false. The Supremes pretty much ignored the first amendment until the early 1900s. And, with their recent approval of political speech controls, they’ve demonstrated that they don’t think much of it now.
    I actually believe in the first amendment. However, the first amendment has nothing to do with media and media is pretty much the biggest threat to the first amendment.
    In even the most restricted interpretation of the first amendment, political speech by individuals is protected. We don’t even have that now, and the media pushed us there.

  • Angelos Tzelepis

    Profanity alert!! Hide the children…
    Will the FCC fine 60 Minutes for Mary J. Blige’s s-bomb Sunday?
    When the show is taped, and edited to death as it is, what excuse do they have for letting a little fecal matter get on the air? And it was a REPEAT!
    This is great. This MUST have been done intentionally, just looking to pick a fight with the FCC. I love it. I don’t watch 60 Minutes, but more power to them.
    And by the way, f**k John Thompson. Do the words “get a life” mean anything to him? Well, no, of course not, he’s a lawyer. See, there are the people who work hard, and produce. And then there are lawyers and politicians, who take take take.
    http://www.broadcastingcable.com/CA411543.htm

  • KMK

    Come on Andy, I am serious how far back should I go?
    Congress adopted the First Ten Amendments, known as the

  • bob

    There is nothing goofy about the first amendment.
    Sure, there’s nothing goofy about the first amendment. But, as I said, there is something goofy about switching from “no one has the right to broadcast” to “it’s about the first amendment” in the space of a paragraph. Whatever you call it, that’s an obvious contradiction. You can’t have it both ways, so which is it?
    And there’s nothing farcical about your concerns, but about the argument that a privilege revoked is a right infringed. I think your concerns over the first amendment are admirable, and I share them, completely.
    Now, is the Stern-FCC debacle relevant to the privilege to broadcast? Yes. If you believe as I do, that government should go no further than to minimally regulate broadcast, if at all, then Stern and the FCC is worrisome.
    If you believe, as I don’t, that there has been an infringement of Stern’s first amendment rights as a broadcaster, then the question’s still on the table: how can an exclusive right to a broadcast medium be a right? After all, it is exclusive.
    You said, “Never has the FCC come up in a discussion of the first amendment. If your broadcasters are talking about it you should be worried.”
    Broadcasters are interested in having as much latitude under the broadcast privilege as they can achieve. Of course they’re talking about those restrictions. And that some, many, or all are engaged in hyperbole doesn’t worry me; if anything, I’d be amazed if none of them did. Three words: NRA, NOW, Greenpeace. On a given issue, any of these groups may be right, but that they raise concerns doesn’t make them right. They’ve got arguments, rational and irrational, just like you and I. They’ll work through those arguments with discussion.
    When a guy runs through the street and yells that the sky is falling, you might point and laugh. If five people come along one after another, you might reasonably take a close look upwards. With enough people, you stop one and ask them what’s going on. You don’t agree, you just want to figure out why they say t he sky is falling when you see no evidence of that. When their response is unsatisfactory, or doesn’t address an obvious problem – that the sky isn’t falling, it doesn’t matter how many come along yelling about the sky falling. The sky isn’t falling. Numbers don’t add to reason, at most, they justify keen interest.
    And while, to be sure, the hyperbole in this debate hasn’t come anywhere near those epic proportions, the outrage has got me keenly interested. So I ask. But the answers thus far, have been contradictory, and haven’t managed to resolve The Problem.
    If you or Jeff wants to claim that this is a first amendment issue, cool. Just understand that for as much as I’m one guy who would flip out over a first amendment violation, in order for this to be a violation of first amendment protections, then there must be first amendment protections in place. Since the first amendment doesn’t guarantee access to broadcast media, what now? Ignore the flaw, or address it? Up to you.

  • http://tvh.rjwest.com HH

    Bubba the Love Sponge on Deborah Norville tonight…
    Sterniacs called in to prank MSNBC today…
    http://groups.msn.com/MSNBCTV/general.msnw?action=get_message&mview=0&ID_Message=11920&LastModified=4675468898639967587

  • KMK

    Bob – explain this – “in order for this to be a violation of first amendment protections, then there must be first amendment protections in place. Since the first amendment doesn’t guarantee access to broadcast media”
    Are you asking if the first amendment guarantees access to broadcast media or are you asking if a media broadcaster has the right to the first amendment?

  • http://twistedspinster.com/ Andrea Harris

    Thank god. Those songs are so overplayed. I thought if I heard one more playing of “Man in the Box” my eardrums would commit suicide. And I like that song.

  • mrs gryhwk

    To those that say…”It’s not just about Stern.” It’s about the government chill on broadcast speech. It’s about moving the line during an election year, it’s about consolidation, and it’s about the first amendment. yada, yada, blah, blah, blah… this reminder. The FCC Commissioner who is pushing the hardest on all of this so-called “indecency” is Michael J. Copps. Copps is the former chief of staff to South Carolina’s Democratic Senator Ernest Hollings, a Democrat. Hollings has never been known for his defense of first amendment rights for broadcasters. Copps is a Democrat, not a Republican.

  • Dave F

    So what will be done about what the late novelist Kingsley Amis called “fuckettes” — like frigging, frickin’ (my granddaughter says what’s wrong with that?), mofo, “sugar”, “shucks” (shitettes) and so on ad infinitum?
    Get Tony Soprano on that f–in’ FCC board!

  • bob

    KMK:
    Forgive the misstatement. Here is the question:
    If you believe, as I don’t, that there has been an infringement of Stern’s first amendment rights as a broadcaster, then the question’s still on the table: how can an exclusive right to a broadcast medium be a right? After all, it is exclusive.
    We’ll retack that onto this question: As I said, there is something goofy about switching from “no one has the right to broadcast” to “it’s about the first amendment” in the space of a paragraph. Whatever you call it, that’s an obvious contradiction. You can’t have it both ways, so which is it? (see earlier post for context)

  • Andy Freeman

    > As far as I know when there has been a “case” for the first amendment the courts have always decided in favor of it.
    Cute, but dishonest.
    No court has yet said “we don’t believe in the first amendment”. Nevertheless, courts can, and have, ignored the first amendment, typically by finding that something else that isn’t even mentioned in the constitution deserves more weight.
    Upholding McCain-Feingold is one of the more recent examples.

  • KMK

    You calling me cute Andy. Yes, the Supreme court said yes to the restrictions in McCain-Feingold. Also important is that 90 percent of congressional Democrats voted for McCain Feingold. The soft money ban came with a rub didn’t it. It increased the federal contribution limits. The Republicans opposed it most and ironically benefited the most. I think Bartlett is on the right track with the First Amendment Restoration Act which would repeal the McCain-Feingold restrictions on political advertising just before an election. As far as a first amendment infringement you can still write, voice, email and phone in your political support and views. The only limit is how much money you can use to show your political support and views. Call me crazy but I would have preferred candidate character reform before BCRA.

  • KMK

    Bob
    The radio act of 1912 is the beginning of federal regulation. It had a tragic flaw, it didn’t establish a system of property rights. By the 20’s the flaw was obvious as broadcasts were routinely jammed some were accidental some weren’t, bedlam ensued. The radio act of 1927 didn’t accomplish much and led to the Communications act of 1934. The Act of 1934 did three things, government ownership of all broadcasting rights, the FCC, and with the FCC regulatory power. So much for “the public owns the airwaves” argument.
    This brings us to 1943. I think this case sites one answer to your question.
    National Broadcasting Co. v. United States, 319 U.S. 190 (1943)
    http://www.bc.edu/bc_org/avp/cas/comm/free_speech/nbcvus.html. It was an antitrust case but touched on the first amendment.
    “But Congress did not authorize the Commission to choose among applicants upon the basis of their political, economic or social views, or upon any other capricious basis. If it did, or if the Commission by these Regulations proposed a choice among applicants upon some such basis, the issue before us would be wholly different. The question here is simply whether the Commission, by announcing that it will refuse licenses to persons who engage in specified network practices (a basis for choice which we hold is comprehended within the statutory criterion of [227] ‘public interest’), is thereby denying such persons the constitutional right of free speech. The right of free speech does not include, however, the right to use the facilities of radio without a license.”
    The last sentence being the key point.
    We have the fairness doctrine in here which, simply put, says broadcasters have to be objective an offer equal time to both parties. This was repealed in 1987 but led to the current federal equal time rules, which require all competing candidates get the same airtime. (Remember here The FCC ruled that Howard Stern’s radio show is a news interview program for regulatory purposes. They did this during the Arnold Schwarzenegger run for governor).
    Two more landmark cases (I think) Red Lion v. FCC 1969 and Miami Herald v. Tornillo 1974. Red Lion just affirmed the FCC’s powers and upheld the fairness doctrine while Miami Herald overturned a Florida fairness doctrine statute for newspapers and upheld freedom of the press.
    Why point to a radio case and a newspaper case? I think this is where one of your answers lie.
    Property rights. Newspapers are property and are protected by freedom of the press. Broadcasters are licensed by the government and for all intense have no “traditional” rights of property.
    Your key point being “The right of free speech does not include, however, the right to use the facilities of radio without a license” as sited above in NBC v. US. Once licensed, in Stern’s case, does he have the right to freedom of speech? I say yes, he’s an American citizen. Let’s look at the sentence prior to your key point. It hold the words “public interest.” Like it or not 15 million listeners tune in to hear Stern. They represent the public and are obviously interested in what he has to say. So, now we look at FCC regulation. Is Stern indecent or obscene? I say no. Just my “part of the public make up” opinion and 15 million listeners proves “public interest.” So, back to legalities. The FCC by law is supposed to be impartial and maintain “public interest” not special interest. If they fined Stern then they should fine Oprah. If they don’t fine Oprah then I say Stern has a legal leg to stand on. The FCC does not represent “public interest” if they remain selective.
    Sorry my answer was so long but your question was really composed of three parts, the first amendment, broadcasting and property rights. When I said “no one has the right to broadcast” I should have added without a license. Since Infinity has a license and they have hired Stern I think he has a right to his first amendment.

  • bob

    KMK,
    That’s a damn fine response. There are some dots being connected, so let me look into some of those connections and the cases and examples you mentioned. And I’ll get back to you (probably in the next post on this subject, since if I concede this, I don’t want to hide it in an old thread).
    Thanks!

  • KMK

    Stuart Benjamin posting over at Volokh Conspiracy has wieghed in (much better then I) on Regulatory Strategy. I agree with him. I smell a judicial challenge in the air.
    http://volokh.com/2004_04_18_volokh_archive.html#108248238866756606