Op-ed: Howard Stern and the First Amendment

This is the text of an op-ed that appeared in The Star-Ledger in New Jersey in December, 20005:

By Jeff Jarvis

Howard Stern is leaving broadcast radio for satellite next month. The posse of prudes who hounded him – with their eager accomplices on the Federal Communications Commission, who levied $2.5 million in fines against him – may celebrate cleaning up our airwaves. But they have done much more: They are hastening the collapse of mass media, wounding the First Amendment, and sucking the life, honesty, and fun out of broadcast. That is what is truly indecent.

For me, Stern was an acquired taste. I assumed what everyone did hearing his occasional gassy gag. But after listening to him, I learned that he is greater than the sum of his farts. Stern has to be an incredible entertainer to keep millions amused four hours a day. But more important, in a media universe where personalities are manufactured and their words sanitized for our protection, Stern stands alone as an honest man, unafraid to say what he – and we – think. It made big news during Katrina coverage when TV reporters did that. Stern does it every day.

But the pressure groups targeted Stern as the poster boy for their agenda of cultural control. The Parents Television Council created online kvetch factories where their followers could automatically file complaints. Another of their targets, Fox’s Married by America, was levied the FCC’s largest fine, $1.2 million, for questionable use of whipped cream. This came after the marketplace had already killed the show, without any help from the FCC or PTC. I then filed a Freedom of Information Act request to see all 159 complaints the FCC said triggered the crackdown. It turns out they came from only 23 people, 21 of whom had merely forwarded the canned PTC letter. Just whose community standards are being enforced? Fox is the rare media company fighting the fine; most give in and settle because, Stern has argued, the FCC blackmails them with threats about license renewals.

The damage to speech is clear. Broadcast continues to be exempt from full First Amendment protection based on antiquated views of media – that these are public airwaves (so why don’t the wishes of the larger public trump those of the few?); that broadcast is unique (though young people today don’t know the difference between broadcast and cable channels, and soon won’t know the difference between any channel and an iTunes download); and that broadcast is pervasive (which is less true as the internet grows). This is the hole in the First Amendment ozone layer that allowed a pressure group to use government to regulate speech.

So the culture is chilled. Today we live in an age of offense, when our worst sin is to offend anyone. From the left, this is political correctness; from the right, it is the fight against indecency. They each think they’re making culture safe. Instead, they’re making it dull. That is why both artists and audience are fleeing to new media: Stern goes to satellite. HBO is producing our best entertainment. And I blog because there are no rules there, but mine and my readers’. Though there are those in Congress who would extend the First Amdendment exception to cable, the last still we can still get what we want so long as we pay for it. Free speech ain’t free.

And so big, old media shrinks. Clear Channel’s ratings and revenue have suffered since it axed Stern. Viacom, Stern’s producer, isn’t just replacing him but is exploding the formats of most of the stations he supported. Howard, meanwhile, is only more energized. He’s earning $500 million to build a new medium and industry. And he’s so free that he could turn around and moon all the puritans and politicians who’ve abused him by inaugurating his Sirius channel with 24 hours of flatulence.

This is what government interference in business and speech has meant. I would think that conservatives would be yelping at increased government regulation, that liberals would be fighting this religious agenda in government, and that Viacom would have defended Stern (and its revenues) to the hilt. They didn’t because, well, it’s only Howard Stern. But it’s not. It’s our culture, our freedoms, and our economy they hurt when they attacked Howard.