The Daily Stern
: SUE THE BASTARDS: In an excellent FindLaw column, Julie Hilden suggests that Stern should sue the government. She then gives us all the reasons why it would be damned hard to win. And those reasons illustrate clearly how government pressure is tantamount to government action: Threatening and fining radio companies is the moral equivalent of government censorship. Some stirring quotes here:
Stern is right: There are serious First Amendment issues here. So why isn’t he suing? After all, a federal statute allows suits against the government for damages when constitutional rights are violated. Stern certainly has suffered damages from losing his relationship with Clear Channel — and he’s likely to suffer more….
Stern’s own speech has not become any more offensive or controversial than it always was. And the radio shock jock has built his career based on the government’s repeated decision not to go after him for “indecency. ” It’s unfair for the government to change the rules so radically at such a late date.
And it’s not only Stern who is being affected. Even now, warning memos are doubtless being circulated, and speakers who are worried about losing their radio or television podiums are doubtless keeping outrageous thoughts to themselves. And that’s a great shame, because speech is often outrageous precisely because it hits on truth; it is often comic because it dares to say what we all know, but won’t voice.
Only speech without fear is truly free. And when the rules for speech change, for no good reason, fear is inevitable — and, as I explained in a prior column, the “chilling effect” that is anathema to the First Amendment is inevitable, too.
Howard Stern is unusual, and admirable, to resist that chill. But he may not be able to do so forever — and if he caves, it won’t be his fault. It will be the fault of the government for putting more pressure on the right to speak freely than even Stern can bear.
Put that in granite over the door to the FCC (and let it drop on a few commissioners’ heads): Only speech without fear is truly free.
: MAGAZINES: I mentioned a few days ago that I was writing a story for a magazine on the FCC and Stern. I just killed it because of the editing. I may just post it here. More on this later.
: REASONABLE: The Kalamazoo Gazette gets it. Howard Stern isn’t their cup of tea but free speech is. In an editorial yesterday, it says:
Should there be sweeping legislation authorizing censorship? Even an amendment to the U.S. Constitution? Simply expunge the section of the First Amendment guaranteeing freedom of speech and expression?
Obviously, none of the above is a realistic approach. What could work, however, are market forces. Television and radio shows can be instantly switched, or sets turned off — if only people would. Companies sponsoring programs whose ratings are dropping would be likely to review their advertising budgets. If seamy stuff on the Internet begins losing “hits,” advertising support also could erode.
As to print publications such as the Gazette, we — as a family newspaper — are constantly mindful of our readers’ views, which they don’t hesitate to give us when they believe certain content to be inappropriate.
In other words, regulation and legislation — while necessary in certain circumstances — can only do so much. The real solution to what PGA and many others see as a threat to our civilization’s values lies in the free marketplace. That’s where censorship is perfectly legal, and can work.
: DIRTY WORDS EVERYWHERE: Staci Kramer sends us news that sports teams are now nervously hitting the bleep button:
The Atlanta Hawks apologized Monday for playing a hip-hop song that contains obscenities and other graphic language.
The song, “Party Up” by rapper DMX, was played over the public address system during a timeout in the second quarter of Saturday’s night game against the Boston Celtics at Philips Arena.
It appears they ran the wrong version.