Classical Notes
rule
title - The Curse of Broadcast Indecency

Most folks think of communications lawyers as immersed in exciting cutting-edge technologies. Admit you're a broadcasting attorney and the enthusiasm turns to yawns. Lately, though, thanks to Janet, Justin, Bono and Bubba, things have been picking up:

  • On the eve of Congressional testimony, John Hogan, CEO of Clear Channel, the nation's largest radio chain, canned the Howard Stern Show. Hogan claimed to be "ashamed" and "embarrassed" by the program (distributed by arch-rival Infinity),Broadcasting poised on the brink ... which he called "vulgar, offensive and insulting." A defiant Stern, proclaiming himself a champion of free speech and a victim of right-wing fascists, vowed to "work day and night to destroy this industry" and threatened to ascend to satellite distribution, unsullied by content regulation.


  • The day before, Clear Channel fired "Bubba the Love Sponge," its top-rated host in Miami, whom Hogan dubbed "tasteless and vulgar." A chastened Bubba, "saddened and confused," averred that he has "always strived to be a responsible broadcaster" and cited his "deep involvement in the community" (apparently disregarding that time not so long ago when he castrated a wild pig on the air).


  • After years of inaction, the FCC resuscitated aged complaints, issued record fines and reversed decades of wrestling with context to warn that henceforth any gratuitous on-air use of the "f-word" or other (as yet unspecified) profanity between 6 a.m. and 10 p.m. will be severely punished, regardless of the circumstances.

There's nothing more gratifying than the redemption of sinners, and lately we've had a host of conversions – even if the motive has been less a dawning of conscience than the threat of a congressional ordeal that would make Mel Gibson blanch. Recent weeks have bestowed the astounding spectacle of normally aloof industry leaders jostling to enter the public confessional, fraught with contrition, spouting devout promises of strict adherence to newly-minted moral codes and vowing henceforth to steadfastly guard our common morality.

What's wrong with this picture?

The supreme axiom of broadcast regulation is that licensees are responsible for their stations' programming. To hold the industry's attention, the FCC occasionally busts a cash-strapped mom-and-pop operation that "leases" its station to a time broker in exchange for paying the bills while neglecting to supervise the material that the broker airs. Yet, Clear Channel execs, perhaps too busy amassing their fortunes to emerge from the royal counting-house to survey their sprawling domain, apparently never once bothered to listen to their thriving shows in major markets that generated all those hefty profits. Suddenly, in the hope of staunching government incursion, broadcasters are rushing to implement staff sensitivity training, adopt zero-tolerance policies and rid their rosters of "talent" who might dare to offend. The National Association of Broadcasters even convened a day-long "Summit on Responsible Broadcasting" (closed to the press). Never doubt the power of the bully pulpit!

Some outrageous things have been said lately, and not only by shock jocks. Industry reps insist that consumers are amply empowered with their "off" buttons, but tend to overlook the laws of time and space that preclude avoiding events once they've occurred. Others conjure hysterical fears of "Big Brother" impinging their precious editorial discretion, without considering how we got to this juncture – if the engineers hadn't been asleep at the switch, safety inspectors wouldn't be making plans to avoid the next train wreck. And when all else fails, they depict themselves as poignant victims and brave defenders of the First Amendment – but before unfurling the handkerchiefs and flags let's ponder whether the right to curse in front of kids is really what our forebears had in mind when they died for our freedom. Howard Stern bemoans that his keepers don't understand what his show is about – but just what would that be?

The route to wisdom is strewn with double standards. It's hard to snipe at radio smut while viewer and critics' polls laud Seinfeld as the greatest TV series of all time; but could Stern even discuss on his show "the contest," "shrinkage" or similarly memorable episodes (all aired with impunity at 7:30 when all those impressionable young minds can tune in)? Critics seemingly never tire of trashing Fox for its gutter standards nor reality TV for its irrelevance; and yet Boston Public's infamous episode with the "n-word" stimulated more serious discussion of a vexing issue among its targeted teen viewers than a thousand staid sermons, and My Big Fat Obnoxious FiancÚ concluded with a touching homily to love and marriage – indeed, most junk TV is replete with socially redeeming messages that Seinfeld never once attempted. But (since you're reading this) the most striking hypocrisy of all may be certain newspapers that love to chide broadcasters for ineffective bleeping of offensive sounds and blurring of foul images, all while purporting to cling to their family values by printing terms like "motherf***er" or "[Expletive] you!" under the smug pretense of sheltering readers from the horror of encountering words too shocking to view.

There's also a round-robin of specious finger-pointing. The public blames the jocks, even as it showers them with adulation that only encourages their bad-boy antics. The jocks blame the owners for pressuring them to attract ratings, although they don't have to be louts to be popular. The owners blame the FCC for vague criteria, yet by what standard would any of the recent notoriety ever have passed muster? And the FCC blames Congress for depriving them of meaningful tools for punishment. Pending legislation may change that, but the real issue isn't a question of law.

Former FCC Chairman Mark Fowler once dismissed TV as a mere commodity, "toasters with pictures." But that's absurd and hopefully even he knew it. Courts justify broadcast regulation with spectrum scarcity – not everyone can broadcast over the limited frequencies available, so the chosen few have to "pay" for the privilege by providing a modicum of public service. But it's not just a legal matter of fulfilling the FCC's expectations, minimal though they are. Broadcasters hold a public trust, a social contract with the American people. They wield enormous influence over the opinions of their audiences and especially the behavior of children. They can pander to grab a fast buck in what current FCC Commissioner Michael Copps derides as the "race to the bottom." Or they can inspire and make a meaningful contribution to society, culture and humanity.

Unlike other media, radio and television have access to our homes and thus touch us in a uniquely personal way. When you go to a movie or concert you know you're venturing out of your nest into another realm and should be prepared to ascertain and accept their rules of conduct. But the electronic media grew and thrived over the decades by joining our families and, once among us, earning our trust by behaving properly. Yet, nowadays that's changed – they increasingly smell bad, insult their hosts and track their dirty boots on our carpets, all the while seeming perplexed that we regard them as boorish guests who've outworn their welcome. It's human nature to defend our homes against intruders. Indeed, we've come to depend on broadcasting as a utility, but when the tap water turns muddy or the lights flicker we feel cheated.

The gauge for this change has been graphic programming, which is often mistaken for creativity. But in all the public outrage, social alarm and political debate, a crucial artistic point has been lost. Explicit expression has the precise opposite effect from its intentions - the more you show, the less its impact. Despite decades of persistent teenaged fantasies, the day I finally spent last year on a nude beach was one of the least erotic of my entire life. Hearing Howard Stern coax sluts out of their clothes over the radio is far more arousing (if you're so inclined) than viewing them "in the flesh" on his E! cable show.

The most powerful expression comes through suggestion. Think of the famous shower murder in Alfred Hitchcock's Psycho – despite all the contemporaneous charges of explicitness, not once did the killer's knife penetrate flesh; rather, the brutality arose from the mind's connection among carefully-edited fragments. Indeed, Hitch's gray blood was far gorier than the Technicolor kind. In the silent era, comedians were funnier and drama more gripping than with sound because the audience had to become actively engaged in the process of creating emotions from the mute, flat, monotone clues on the screen. Stimulating the imagination is always more vivid than portraying reality. That's the essence – and power – of art.

A corollary is the numbing effect. I was suitably shocked when encountering my first Richard Pryor monologue, but soon his relentless profanity became meaningless and downright boring. Peter Greenaway's 1991 movie Prospero's Books, with its hundreds of completely nude extras, produced a similar reaction – within minutes you barely notice anything odd. Perhaps the saddest commentary about Gibson's Passion of the Christ movie is that while adults are properly horrified, many young kids reportedly are so used to images of appalling violence that they're barely impressed.

A related question is what to do for an encore? Once you cross the final frontier and accept unbridled profanity, explicit sex and gruesome violence, where can you next push the envelope? After depicting the most sickeningly realistic carnage, how do you intensify action? When using the "f-word" all the time, how do you let people know you're really upset? Once the creative community pauses to consider where it's been lately, it just might realize that it has nowhere to go.

Amid all the flack it's taken, the FCC had the right idea all along – indecency is a matter of context. Occasional profanity during spontaneous news coverage or candid footage to underline a serious discussion of sexually-transmitted diseases are well worth the societal value of such programming. But morning zoos and similar trivial sleaze tip the balance. As a public resource, the touchstone for broadcast licensing is the public interest. Those who wish to assault the public gratuitously, for no purpose but to scandalize, should seek their audiences in private.

When all is said and done, the real issue has nothing to do with freedom, the First Amendment or the FCC. Rather, it's all about responsibility and conscience – those pesky traits that distinguish the human species from other animals. Despite all the inquiries to date, the key questions for the media moguls are personal ones that haven't been asked yet but need to be. So let's ask them now:

  • Would they invite Bubba the Love Sponge into their own homes to share dinner at the family table with the wife and kids?


  • When their careers are through and their achievements assessed, what will their legacy be?


  • And when they take a good, hard look at themselves in the proverbial mirror, what do they really see?

Peter Gutmann

Copyright 2004 by Peter Gutmann
This article first appeared in Legal Times, March 29, 2004


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