Are Shock Jocks Protected by the 1st Amendment?
by Chris Bender

"Go sew up your ass and be lonely, you old queen." This is probably just one of the many oral quips heard by millions of Howard Stern listeners around the world each day. His combination of bluntness, vulgarity, and comedy, has made him one of the most cherished of the modern shock-jocks on the radio today. But is this the kind of voice we want our children waking up to in the morning, listening to his daily barrage of verbal trash talking? Or is it his right and the station affiliates right to broadcast his message to the country? These are the two point of views central in the discussion of this topic.

Since the inception of radio in the early 1920's, communications law has been solely concerned with the regulation of radio and TV broadcasting in order to ensure satisfactory service and to prevent chaos. And because broadcasting by its nature exceeds state boundaries, the federal government has largely occupied the field (U.S. Communications Law).

Congress created the Federal Communications Commission (FCC) as a delegation of its authority to regulate communications. The FCC has the power to set forth standards of transmitting color television among other things. Under the Communications Act of 1934, the FCC was given the power to regulate and control "radio communications" where such communications were held to include the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds (U.S. Communications Law).

But this issue resurfaced in the late 1970's after a period of relatively no intervention by the government. In 1978, the Supreme Court heard the case of F.C.C. v. Pacifica Foundation(438 U.S. 726), a dispute between the government agency that regulates the airwaves, and a broadcasting company in California. The Pacifica Foundation owned a radio station in New York that had broadcasted George Carlin's monologue, "The Seven Dirty Words," at 2 o'clock in the afternoon. After hearing the program with his son and initially filing a complaint with the station, the father made another complaint to the FCC. And after several subsequent objections over the program were made, the FCC was forced to act.

In his monologue, Carlin began by discussing his thoughts about which words could not be repeated over the airwaves. He then proceeded to list seven words, and repeat them over and over again during his 12-minute speech. His monologue, which was taped before a live audience in a California theater, had been preceded by a message warning its listeners that it included "sensitive language that might be regarded as offensive to some" (438 U.S. 726).

Earlier, in 1976, the FCC had created a law that forbade the use of "any obscene, indecent, or profane language by means of radio communications." This law came into debate, as Pacifica tried to prove that it was unconstitutional to censor any portion of radio broadcasts, and therefore a violation of their First Amendment rights. Although not specifically mentioned in the U.S. Constitution, their interpretation of the law came from this excerpt of the Constitution, which states that, "Congress shall make no law…abridging the freedom of speech or of the press" (18 USC 1464).

After earlier cases upheld the FCC's right to censor obscene language, such as that in the Carlin Monologue, a three-judge panel of the U.S. Court of Appeals reversed the earlier court's decision. One of the judges concluded that, "the FCC's action was invalid on the grounds that the order constituted censorship, which was forbidden by the Communications Act of 1934 and that the FCC's opinion was the functional equivalent of a rule, and as such was overbroad" (438 U.S. 726).

Another judge concluded that that Communications Act's censorship provision did not apply to broadcasts forbidden by the FCC law, which covers only language that is obscene or otherwise unprotected by the First Amendment. The third judge on the Court of Appeals, with the one dissenting view, believed that the FCC acted correctly in labeling the language as obscene and offensive (438 U.S. 726).

In their case against the FCC, Pacifica said that Carlin was, "a significant social satirist who, like Twain and Sahl before him, examines the language of ordinary people." In using this defense, Pacifica held the belief that Carlin was only exhibiting the language of his time, much like Twain and Sahl did in their time. They also believed that Carlin, "is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words" (438 U.S. 726).

Pacifica made two constitutional attacks on the FCC's order. First, it argued that the FCC's law is too broad and that it encompassed too much constitutionally protected speech. They believed that a reversal of the FCC's order is required even if Pacifica's broadcast of Carlin's monologue is not itself protected by the First Amendment. Second, Pacifica argued that even if the recording is not obscene, the Constitution forbid any abridgment of the right to broadcast it on the radio.

When the Supreme Court reviewed the case, Justice Stevens concluded, that of all forms of communication, broadcasting has the most limited First Amendment protection. He believed that because broadcasts reached into the privacy of the home, that it makes it even harder for people to avoid hearing obscene or vulgar language. He also came to this conclusion, through his belief that the radio was also easily accessible to children. And in accordance with Stevens, Chief Justice Rehnquist, stated that, "The First Amendment does not prohibit all governmental regulation that depends on the content of speech," and that speech that is, "vulgar, offensive, and shocking, is not entitled to absolute constitutional protection in all contexts" (438 U.S. 726).

The Supreme Court reversed the Court of Appeals decision, thus granting the FCC the right to outline guidelines by which stations and talk show personalities must obey. These laws are in still in effect today, however, with the steady decline in society since this decision, problems still arise between talk show hosts and these laws.

Besides being a legal issue, however, this topic involves a moral issue as well, is it right for people to broadcast foul language, which is then filtered down to our children. This is the issue being faced today, by people like Howard Stern and others. More groups are coming out of the woodwork, in support of more regulation over these out of control shock-jocks, leaving only those loyal fans to support them.

One such group, the American Family Association (AFA), recently came out with a program to boycott Howard Stern and his advertisers. A spokesman from this organization, Michael Canon said that, "Our goal is simply to voice our opinions in a peaceful manner, and try to let people know that we cannot accept this kind of behavior in our society" (Canon Interview). While there goal in this endeavor is to get people's attention, there overall mission is to promote the continuation of the Christian view of man, severely different from what they trying to accomplish with this campaign.

"We firmly believe that pornographic and perverse talk like the Howard Stern programming encourages people of all ages but primarily those who are particularly vulnerable, the young and those who are easily misled, into seeking gratification in inappropriate ways," said Canon. Their goal is basically to protect their children from Howard Stern and others like him.

Although the groups fighting against Howard Stern seem strong and organized, his followers are just as strong in their belief, and probably larger in number. In just a casual search of the Internet, one could find over 30 sites that are devoted to Howard Stern and his radio talk show. And since has added cable TV viewers to his enormous following, Stern's reach has been expanded even further. With this greater realm of influence, comes a larger amount of responsibility on his part. One of the points made by the AFA is that Stern promotes pedophilia, homosexuality, and unfaithfulness, which is not disputed by Stern or his fans. They argue that Stern still has the right to be broadcast, and that he will be judged in the realm of public opinion. And currently he is.

Radio stations have begun picking up Stern's daily syndicated broadcast, and may have experienced an increase in ratings. But there are still many other stations out there, which have carried Stern's program, and now have dropped him. One such example is a station in Dallas, TX, which last year dropped Stern's show, left the town without any station who carried his show. This shows that through his own actions, Stern has left one of the major cities in the U.S., Howard-Less. "I'm completely lost; I'm devastated," said one North Dallas listener. "I know that sounds like an exaggeration, but for five years, if I can't listen to him, I tape him."(Dallas News 7/31/97)

What Stern also duels with daily, besides having his show hang in the balance with his affiliates, is the financial setbacks he faces for making obscene or vulgar comments. FCC regulations state that, "whoever utters any, obscene, indecent, or profane language…shall be fined…or imprisoned not more than two years or both." It goes on to define, "fined under this title," as, "fined not more than $10,000"(18 USC 1464). So not only must Stern worry about the ratings for his show, but the money it's costing him to continue his behavior.

While Stern may have many detractors, his following is still strong. He still continues to attract big name guests to appear on his show, and many new stations are still picking him up. And While Stern's ratings may suffer, his popularity has soared in recent years, partly due to his show being televised on cable, but also due to his recent big-screen debut. His autobiographical movie, "Private Parts," was a blockbuster hit, and has continued its popularity in home video sales.

But nothing Howard does goes without criticism or controversy. A librarian in Texas was fired for ordering his book for her school, with the City Commissioners saying it was objectionable. The American Civil Liberties Union filed a suit on behalf of the women, fighting the censorship of Stern's book (American Civil Liberties Union).

Howard Stern's rights to broadcast his show are protected by the First Amendment through the freedom of speech and press. But while he has this legal right, he also must limit the language he uses or face the penalties. But this is only the legal side. While he does have the right to broadcast, is it right for him to be telling or kids things that were meant for grown-ups. Now, while the legal part was settled in court 20 years ago, the moral issue is still being fought and debated today. With both sides of the issue organizing boycotts and other efforts, it's hard to imagine either side getting an upper hand in this issue.

Here's My Final Evaluation

Other Stern Sites

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The Unofficial Howard Stern Show Sounds Page
Howard Stern on E!
The Howard Stern Home Page
Joshua's Howard Stern Page
Absolutely Hot Howard Stern Parodies
My Howard Stern Shrine
The Rest of Howard Stern
Howard Stern Ate My Balls
Michael's Multimedia Tribute to the Howard Stern Show
KARL FM's Stern Daily Digest
Howard Stern Show Green Room
Howard Stern
Darren DeCarlo's Howard Stern Sound & Info Page
Howard Stern Graffiti
Howard Stern
Mark Mercer's Howard Stern Page
Howard Stern / Unclean Beaver
WWN Howard Stern
Howard Stern - The King Of All Book Signings!
FAQ About Howard
Howard Stern Rules!!!
Hooking Up With Howard Stern
Matt Blank's Howard Stern Page
The King of All Media Newsletter
Howard Stern Gallery
My Tribute to Howard Stern
Howard Stern Is My Shepherd
Howard Stern, Love him or Hate Him
Brian's Howard Stern Page
The Howy Playground
The Howard Stern King Of All Media Morning Page
Spotlight on Howard Stern
Queen Wav's Howard Page
The Howard Stern File Page
Nick Simicich's Howard Stern FAQ
King of All Media Fan's Web Page
The Howard Stern Web Ring
sb_100's Stern Page
Howard Stern's Canadian Fan Page
Howard Stern - The King of All Media

If you have any questions or comments

Email me at bender50@hotmail.com

Since November 5, 1998.

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