Howard Stern's offensiveness

December 30, 1992

In mid-December the Federal Communications Commissio fined Howard Stern's corporate boss $600,000 for his "patently offensive" and "indecent" broadcasts over several radio stations, including one in Baltimore. Earlier, the FCC had fined one of those stations, in Los Angeles, $105,000 for a specific series of broadcasts.

Mr. Stern is a talk show host who specializes in racial, ethnic and sexual conversation that is by almost any definition offensive. Aside from his emphasis on those themes, he also indulges in such disgusting diatribes as wishing an FCC member's cancer would spread and that "rival" Larry King would get AIDS.

Some of his patter seems to us to fall squarely within the Supreme Court's definition of material that can be regulated.

That the American people want such regulations is obvious. Or is it? In 1989, Congress enacted a law that bans indecent speech from the airwaves 24 hours a day. (A court overturned it, saying filth was OK in the wee hours, when wee ones presumably are not listening.)

But there is obviously a large audience for what used to be called smut, as anyone knows who has paid attention to network soaps and miniseries, not to mention offerings in other media.

The Supreme Court has justified government oversight of radio and television content with the "scarcity" rationale. There are limits to broadcast frequencies, the airwaves belong to the public, therefore some rules and regulations -- involving fines or loss of license for violations -- are required.

But there is no scarcity of public indecency today. Nor is there any scarcity of available media. In addition to the limited airwaves, there are an almost unlimited numbers of motion picture-producing entities, television cable and/or satellite channels, videos, 900 telephone numbers, computer "bulletin boards," mall-wide loudspeakers and so forth. We do not mention greeting cards and tee shirts, on the grounds that the FCC probably has no jurisdiction over their messages.

But who knows? The proliferation of media available to citizens of every age in almost every venue requires some new thinking about the regulation and non-regulation of utterance. The technological deluge has not made the First Amendment obsolete, but it is making First Amendment jurisprudence out of date and out of sync with reality. Deciding what to about Howard Stern is only the beginning of the updating that courts, legislatures and regulators must perform.

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