Advertising Age says we are a nation not of red vs. blue but of a "moral minority" vs. an "edgy elite." And the moral minority is winning.
Let us recite the litany of America's new official religion: "This mad race to the bottom," in the pronouncement of one member of the Federal Communications Commission, began when Bono said "fucking brilliant" at the Golden Globes in January 2003 and when Janet Jackson's silver-studded globe invaded the family fun of the Super Bowl this past January.
Which begat politically panicked FCC chairman Michael Powell -- Mr. Media Deregulation -- suddenly embracing government regulation of content (read: censorship). Which begat a congressional orgy of legislation to multiply broadcast indecency fines -- from $27,500 to $275,000, then to $500,000, then to $3 million. Which begat Clear Channel's dropping Howard Stern from six stations. Which begat the FCC's fining Stern for the first time in six years. Which begat an NPR station's firing benign commentator Sandra Tsing Loh over an accidental F-word. Which begets well-chilled programmers issuing dicta filled with newly forbidden words and slapping delays on shows of all sorts, taking the live out of life, the reality out of television.
But this is bigger than just broadcast. This is a fight for the constitutional, political and cultural soul of the nation. And the man on the firing line is Howard Stern.
The FCC's "Parents' Place" on the Web oh-so-helpfully explains the basics of obscenity, indecency and profanity to anyone who wants to summon its cultural cops. A primer:
Obscenity -- which is not protected by the First Amendment -- is sexual material that violates community standards, is patently offensive, appeals to prurient interest and, judged as a whole, lacks serious literary, artistic, political or scientific value.
Indecency -- which, the Supreme Court has ruled, is protected by the First Amendment -- is nonetheless fair game for FCC policing, thanks to the 1927 Radio Act and the 1978 Supreme Court ruling in the Pacifica case (aka George Carlin's Seven Dirty Words). The FCC says indecency -- "patently offensive sexual or excretory references" -- cannot air in the "safe harbor" from 6 a.m. to 10 p.m. because children may hear. (Yale Law School Professor Jack Balkin explains that indecency is OK at night because "you can't reduce adults to the level of speech fit for children.")
Profanity is defined by the FCC as "personally reviling epithets" or "language so grossly offensive" as to "provoke violent resentment." The first time the FCC ever found anything profane was in March, when it reversed itself and ruled against Bono's "fucking brilliant." Now the F-word in any context or syntax is officially profane. That is wholly new.
The FCC has enforced these rules unevenly, proposing $4.5 million in fines since 1990, $2.5 million of that against Stern (with reports of another $1.5 million coming), according to the Center for Public Integrity. One recent FCC finding against Stern is a testament to inconsistency.
Infinity Broadcasting complained that the FCC condemned its star's explanation of the sexual colloquialisms "blumpkin" and "David Copperfield" but did not punish others' references to "giving head" and "finger-banging your boyfriend." The FCC also didn't buy Infinity's argument that "the range of acceptable topics and words for broadcast discussion has changed dramatically, especially in light of widespread media coverage of sex scandals involving President Clinton and the Roman Catholic Church."
Religious conservatives of both parties and such video vigilantes as Brent Bozell's Parents Television Council had been criticizing the FCC for being too lax. But then came the tipping point they were waiting for: The Breast. The FCC suddenly started fining again. And in Congress, lawmakers not only proposed raising fines to prohibitive heights but added more: fining speakers as well as broadcasters (who, before, got a warning and a chance to repent before being fined), requiring license review after three offenses, creating a safe harbor from violence, and delaying FCC moves allowing media consolidation.
I asked Robert Corn-Revere -- the First Amendment attorney who recently got Lenny Bruce pardoned and who litigated against the Communications Decency Act -- about the constitutionality of current regulations and new legislation. He replied: "What constitutionality? The FCC has done its best to prolong the longevity of this doctrine by keeping it out of court."
In compelling testimony before Congress, Corn-Revere pleaded for a long-overdue constitutional review of indecency policy. He complained that the FCC's indecency (and now profanity) standards evade the tests that courts grant for obscenity: The FCC judges a work not as a whole but by just one word; it judges not by the standard of an "average person" but by that of a child; and it short-circuits due process (Stern complains that his company settled $1.71 million in fines in 1995 only because the FCC was using it to hold licenses hostage). Finally, Corn-Revere says, the enforcement is inconsistent. No one knows where the line is.
Ernest Miller, a fellow at Yale Law School's Information Society Project, also has constitutional qualms over the FCC's new reach into profanity. He argues on his Corante.com Web log that this opens the door to FCC regulation of hate speech -- for what is a more grossly reviling epithet worthy of violent resentment than, say, the N-word?
But then, what if that N-word is spoken by a hip-hop artist instead of a KKK member?
Shouldn't the speech be separate from the speaker? Apparently not if you're Oprah Winfrey, whose show explained sexual colloquialisms just as bluntly as Stern did on the very day he was fined for it -- though so far, she has not been fined. The problem with all this, says Corn-Revere, is that "you enable the government to tailor its penalties based on how much it likes or dislikes the speaker." Judging by the disproportionate fines -- the vendetta -- against Stern, that is exactly what has been happening.
A coalition of two dozen broadcasters, performers (including Margaret Cho) and First Amendment groups have petitioned the FCC to reconsider its Bono ruling. They argue that attacking profanity (aka blasphemy) dances perilously near the line between church and state, that this "is fundamentally incompatible with the First Amendment" and that it "already is exerting a substantial chilling effect on constitutionally protected speech."
The legislation coming out of Congress goes even further and raises even more troubling constitutional issues. Senator Fritz Hollings would extend FCC authority to restrict violent programming. Corn-Revere says that every court "has held that trying to define and trying to regulate violence is unconstitutional."
The problem with the new legislation, he says, is that "they allow but do not require the FCC to exempt news or sports. And they do not say whether it extends to animal violence or, I like to say, food-chain violence. So will 'Shark Week' be too violent?" Yale's Balkin adds that "if protecting children from violence is a compelling state interest, why not racism or sexism or homophobia?"
Hollings' effort also extends enforcement to cable. In a ruling involving Radio Pacifica 26 years ago, regulation of television was justified in part because of its "uniquely pervasive" nature. Today, no one channel or even medium is so pervasive (though firebrand FCC Commissioner Michael Copps also calls for extending regulation to cable and satellite because they too are now "so pervasive"). Corn-Revere says that won't hold up. "The court, whenever presented with the issue, has held that they're not going to extend broadcastlike regulation to other media, including cable."
But of course the real constitutional issue is the chill in the airwaves brought on by all these threats. TV producer Steven Bochco told a reporter that since The Breast, ABC censors have for the first time cut his NYPD Blue. "It's very chilling."
The industry as a whole is feeling the strong-arming of the law. The National Association of Broadcasters is considering reinstating its Code of Good Practices, which was dropped in the 1980s under pressure from the Reagan administration out of -- cue ironic smirk -- constitutional concerns.
In his address to the NAB in March (reminiscent of former FCC chairman Newton Minow's famous 1961 speech calling television a "vast wasteland"), FCC chairman Powell urged them -- under threat of gigantic fines -- to adopt a voluntary code: "It would be in your interest to do so." But as Corn-Revere observes, "Voluntary doesn't mean voluntary."
Consider, too, that any citizen could be subject to fines under this legislation. "Imagine if a television crew had filmed an Abbie Hoffman speech," says Yale's Miller. "Would Hoffman be liable for intentionally using the term 'fuck' and knowing his speech would be broadcast?" Feeling chilly?
The assault on free speech isn't coming just from the FCC and Congress. The Federal Trade Commission just stepped up monitoring of media violence, "including complaints about the advertising, marketing, and sale of violent movies, electronic games (including video games), and music."
And Attorney General John Ashcroft has launched a multimillion-dollar war on pornography. Says the Baltimore Sun: "Nothing is off limits, they warn, even soft-core cable programs such as HBO's long-running Real Sex or the adult movies widely offered in guestrooms of major hotel chains."
And then there's Stern. The looming threat of fines that could pile into millions -- and be levied years after the acts -- is enough to force him off the air and onto satellite, he vows. "No company can stand up to this kind of government pressure," he says. "I can't take the pressure that they're going to fine me personally every day."
If Stern leaves the air, a voice that reaches 8.5 million fans a week will be, at best, reduced to an audience a fraction that size. And his political speech will have been forced off the airwaves -- our airwaves -- under government pressure.
The punch line of this sad joke is that Stern has become the liberal talk-show star the left has been dying to hear. Laurie Spivak at AlterNet says Stern has unleashed against Bush the long-sought-after WMDs -- White Male Defectors. Salon's Eric Boehlert calls them "Howard Stern's schwing voters." MTV News says Stern could have a bigger impact on the election than Ralph Nader.
Stern returned from a vacation on Feb. 23 carrying Al Franken's "Lies and the Lying Liars Who Tell Them" and ranting, "If you read this book, you will never vote for George W. Bush. I think this guy is a religious fanatic and a Jesus freak, and he is just hellbent on getting some sort of bizarro agenda through."
The next day, Stern interviewed Rick Solomon, Paris Hilton's co-star in an infamous porn video; sexual and racial talk ensued and that was all that was needed: Two days later, Stern was kicked off Clear Channel. He says that was because Clear Channel is run by Bushies. And he says that is why the FCC and Congress are after him as well. The conspiracy theory is weakened somewhat by the bipartisan nature of the rush to censorship, though there's no denying that this is a political story.
It's about FCC chairman Powell's efforts to win back political favor after he mucked up his media deregulation effort and attracted the wrath of the many who apparently hate big American media. Powell has flip-flopped on the First Amendment and media regulation. When he was an FCC commissioner, he said that "government has been engaged for too long in willful denial in order to subvert the Constitution so that it can impose its speech preferences on the public -- exactly the sort of infringement of individual freedom the Constitution was masterfully designed to prevent."
When he became chairman, he said, "I don't know that I want the government as my nanny." In 1999, he accepted the Media Institute's Freedom of Speech Award with a stirring defense of the First Amendment: "We should think twice before allowing the government the discretion to filter information to us as they see fit." But now, Powell is regulating something far more sacred than the business of media: its content, its speech, its freedom. And he dismisses -- or at least tries to wash his hands of -- the chill, telling Congress recently: "I do not have the luxury of ignoring my duty to enforce the statute because owners might react with excessive conservatism."
And, of course, this is a political story about currying favor with religious conservatives. This is their big hurrah -- to take back the country from godless media, to make television safe for everyone. As fired NPR talker Tsing Loh said: "I've seen the future and it is John Tesh ... music. Pre-recorded."
What we're really seeing is the final nail in the coffin of the mass market and of one-size-fits-all media.
Advertising Age says that the new Puritanism will drive the young and desirable edgy elite to satellite and cable, raising the average age of television's audience and tearing apart the mass audience. This will hasten a fundamental shift in the center of gravity of American media. Broadcast television and radio will become (even more) boring, old, predictable and safe and will keep shrinking. Younger audiences -- along with the advertising dollars and creative talent aimed at them --will migrate (no: stampede) to cable, satellite and the Internet and then to on-demand delivery over high-speed wireless.
These alternate media won't become moral cesspools, for they've already sown their sexual oats: Look at how HBO started with tittering flashes of tit but now produces the leading edge of entertainment; look at the shrinking market-share of sleaze on the Internet. The audience will continue to fragment in slices of slices as even the Internet creates new markets (witness the blossoming of blogs). News and commentary will be delivered via every angle of the political prism. Media will internationalize as never before.
Since there will be no more mass medium, advertising will become laser-targeted. The people formerly known as the audience will gain more choice, more involvement, more ownership of their media. The greatest cultural change agent of recent history turns out to be the remote control, which gave us command of our media and took it away from the national nannies. That's why they're in such a panic.
So they set the Wayback Machine for the 1950s, when television was clean and most shows carried the seal of the Code of Good Practices, which the FCC wants broadcasters to reinstate in some form. The code decreed that "illicit sex relations are not treated as commendable." So much for prime time. It insisted that "attacks on religion and religious faiths are not allowed" and that clergy "under no circumstances are to be held up to ridicule." So much for TV movies about Jim Bakker and child-molesting priests. "The presentation of cruelty, greed and selfishness as worthy motivations is to be avoided." Farewell reality television. "Unfair exploitation of others for personal gain shall not be presented as praiseworthy." Donald Trump: You're fired!
But it's not just about sex and the religious right. It's also about political correctness and the left. We live in an age of offense. The cardinal sin today is to offend; the clearest badge of victimhood is to be offended. Sadly, I hear some refuse to defend Stern and his speech because "he offends." Well, the First Amendment is often defended on the backs of the offensive: Larry Flynt or the KKK. But I won't lump Stern in with them. For, judged in the whole, Stern is not offensive.
Let me tell you why I am such a Stern fan. Until I reviewed his show for TV Guide, I had heard the same snippets, quotes and characterizations you had. I thought he was best taken in small doses. But after listening to him for a few weeks, I discovered that, to the contrary, he is best taken in large doses. For then you discover that Stern is charming, likable, decent, funny, a talented entertainer, a great interviewer, and -- more than anything -- honest.
Stern is an antidote to all the overpackaged, smiley, phony, condescending pap of personality in American media and entertainment. In an age of predictable news (shouldn't news be just the opposite?) and political correctness and numbing national rhetoric, Stern cuts through the crap and says what he thinks -- and what many of us think. And that is incredibly refreshing. No, it's liberating.
Let's be honest: We don't all talk like Hallmark cards and human resources directors. When we sit in the bar with friends, we gossip about people we hate; we joke about sex. And on our couches, when we watch the news, we think thoughts we won't admit. Stern admits them. Is he sexist? By many definitions, sure. But unlike many a wolf in sensitive-man clothing, he's straightforward about it.
Is he racist? No. He has racists on the show, and he ridicules them because idiots are entertaining. Admit it: When you watch reality shows, you love to make fun of the fools on them, and that's not necessarily something to be proud of -- but making fun of racist bozos is. Stern gives us credit for knowing they're offensive; he doesn't have to explain that to us or protect us from it. The nannies and the PC police only insult our intelligence when they think they need to save us.
Stern shies away from no sacred cow. He is a positive force in American media. Just as Web logs tweak big media to keep them honest, Stern pushes the line to keep politicians and celebrities and his audience honest. So I like to listen to him. If you don't, fine. Listen to something else. I won't stop you. Just don't stop me.
And there's the real question: If the government is going to regulate speech, where's the line and who's going to draw it? Is it at the least-common denominator that makes all media safe for 5-year-olds? Is it at the church door that makes all media safe for church ladies? Is it at my car door so I can still listen to Stern? Is the line going to be drawn just on broadcast or will it extend to cable and satellite -- and the Internet? Will the censored be just shock jocks -- or newsmakers or bloggers?
I couldn't say it better than Powell -- the old, freedom-loving Powell -- did in 1999 when he accepted the Freedom of Speech Award (which one assumes is now hanging in his bathroom): "I have gained a deep and profound respect for the wisdom of having an unwavering principle that stands at the summit of the Constitution, and holds: 'Government shall make no law abridging the freedom of speech.' ... Benevolent or not, we did not sign away to a Philosopher-King the responsibility to determine for us, like a caring parent, what messages we should and should not hear."
So to the barricades, edgy elite! This is not just about Stern. It's not just about Bono or The Breast. It's about our First Amendment. It's about our freedom of speech. It's about us.
Jeff Jarvis is former TV critic for TV Guide and People, creator of Entertainment Weekly, Sunday Editor of the NY Daily News and a columnist on the San Francisco Examiner. He is now president and creative director of Advance.net. This article first appeared in The Nation.