Stern Justice

JAMES J. KILPATRICK

December 24, 1992|By JAMES J. KILPATRICK

The corporation that hires Howard Stern, the New Yor shock-jock, got hit last week with a $600,000 fine for ''indecent'' radio broadcasts.

By any standard known to law, the broadcasts were in fact indecent, and the fine was appropriate to the offense. I support the government's action.

Even so, the whole affair is troubling. Let me summarize the law and the facts, and leave a judgment to readers.

Under the basic Radio Act of 1927, the federal government exercises authority to license radio broadcasters. That duty has devolved upon the FCC (Federal Communications Commission). In granting or revoking a license, the FCC may take into account the broadcaster's record of past program content.

A part of the law, known as Section 1464, makes it unlawful to broadcast any ''indecent'' material. However, by an FCC regulation imposed to protect children, licensees may air indecent broadcasts between midnight and 6 a.m. Otherwise such broadcasts are banned. The licensee who violates Section 1464 is asking for a substantial fine and for trouble when his license comes up for renewal.

Toward the end of October 1991, and off and on through the month of November and into December, ''The Howard Stern Show'' broadcast material between the hours of 6 a.m. to 11 a.m. Much of the material had to do with comedian Pee-wee Herman, who had just been arrested in a Sarasota theater for indecent exposure (masturbation in a place of public assembly).

Mr. Stern dwelled repeatedly upon the incident. He spoke of ejaculation as ''spewing evil gunk all over everybody.''

He engaged in extended colloquies with his associate, Robin Quivers, on his own experiences in masturbation. Ms. Quivers remarked at one point that Pee-wee Herman ''was arrested on July 26 after detectives said they saw him masturbating twice in 10 minutes.''

Mr. Stern: ''Twice in 10 minutes! I, who am head of the masturbation club -- I, I run a masturbation society. I'm someone who is totally devoted to masturbation. I must tell you to do that twice in 10 minutes is unbelievable.''

On other occasions, Mr. Stern engaged in extended conversations having to do with rectal bleeding that results from anal intercourse. In a broadcast on November 5, he spoke of two of his critics who might be stranded at sea ''and be forced to drink their own urine.''

Mr. Stern had been in trouble with the FCC before these broadcasts in 1991.

Taking account of an ''apparent pattern of indecent broadcasting over a substantial period of time,'' the FCC last Friday imposed fines totaling $600,000 on Infinity Broadcasting Corp. of Washington, D.C., and two licensees that carry the Stern broadcasts.

A long time has passed since a sorely divided U.S. Supreme Court upheld the authority of the FCC under Section 1464. This was the case of FCC v. Pacifica Foundation, decided 5-4 in July 1978. I am impressed by something that Justice John Paul Stevens had to say in his majority opinion:

''The broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder.

''Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.''

That strikes me as a fair statement of the situation. As a newspaperman, I react instinctively against censorship in any form. I have lived long enough to understand the formidable difficulties in punishing speech that may have been ''obscene'' or ''indecent'' yesterday, but cannot be so described today. I would be hard put to condemn any written material apart from child pornography.

Broadcasts present a different problem. I have three granddaughters, aged 8 to 11. If Mr. Stern's broadcasts came into their breakfast room, starting their day with talk of bleeding buttocks, evil gunk and masturbation, would I defend free speech?

I would toss freedom of speech to the four winds.

James J. Kilpatrick is a syndicated columnist.

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