Howard Stern Goes Into Orbit, Taking the First Amendment With Him

By MICHAEL C. DORF

Monday, Dec. 19, 2005

With characteristic bravado, last week Howard Stern bid farewell to his "terrestrial radio" audience. Henceforth, Stern fans will only be able to hear his unique brand of narcissistic pre-adolescent scatology and prurience by paying for a subscription to Sirius satellite radio.

Why did Stern leave Planet Earth? As Julie Hilden explained in an earlier column on this site, last year, media giant Clear Channel Communications dropped Stern's program from its nationwide empire of stations rather than either rein in Stern--an apparently impossible task--or continue to pay hundreds of thousands of dollars in fines to the Federal Communications Commission (FCC).

Instead of taking the heat here on Earth, Stern understandably chose to flee to space, where the FCC's regulation of "indecency" does not currently reach. But this only raises the question: why not? What possible justification is there for treating broadcasts to conventional radios as subject to content regulation by the FCC, while treating material sent via satellite as sacrosanct?

Although a number of answers have been suggested in judicial opinions and elsewhere, none of them stands up to close scrutiny. That may mean that in the long run, the FCC will catch up with Stern, even in space. But, as I explain below, we would do better to liberate the airwaves here on Earth than to extend a dubious regime of censorship to the heavens.

The Regulation of "Indecency" on the Airwaves

A regulation of the FCC forbids radio or television broadcast stations from transmitting "obscene" programs at any time, and "indecent" programs between 6 a.m. and 10 p.m. Howard Stern's troubles with the FCC stem from the latter regulation: Airing in morning drive time over the last couple of decades, his show has frequently featured explicitly sexual (though not legally obscene) content that, according to the FCC, counts as "indecent."

However, because the regulation only applies to "broadcast" stations, it is inapplicable to satellite radio or, for that matter, cable or satellite television--which are subscription services. One must pay to receive these services and thus they are not broadcast; rather, they are narrow-cast.

Because the current FCC regulation does not apply to pay-for-service satellite radio, or pay-for-service cable, or satellite television, programming for these services is often racier than what one sees or hears on free radio or TV. Thus, the corporate slogan, "It's not TV, it's HBO" has actual legal significance.

For these reasons, by taking his show to satellite radio, Stern can evade FCC regulation. But only for now. The FCC regulation implements a statute passed by Congress that is more broadly worded than the regulation. The statute imposes criminal fines, and up to two years in prison, for anyone who "utters any obscene, indecent, or profane language by means of radio communication." Although one might think that the reference to "radio communication" refers to conventional, rather than satellite, radio, this inference is probably unwarranted.

"Radio communication" is most naturally read to refer to a transmission using electromagnetic (or "radio") waves. And satellite radio is simply a radio transmission that originates from a satellite rather than a radio tower on Earth. Indeed, satellite radio stations can use ground-based facilities to boost their signals, making them, as a technological matter, indistinguishable from conventional radio or broadcast television.

Accordingly, the FCC would seem to have the authority to promulgate new regulations extending the reach of the indecency restrictions to satellite radio.

And even if one reads the existing statutory authorization narrowly, so that it doesn't currently permit the FCC to regulate satellite radio, Congress could expand the FCC's authority so that it did.

In short, Stern may not be safe in space.

Why Doesn't Indecency Regulation Violate The First Amendment?

By now you may be wondering how regulation of "indecency" on the airwaves can be squared with the First Amendment's protection for freedom of speech and the press. The leading Supreme Court cases provide two principal rationales.

The first rationale--which is traceable to the 1943 case of National Broadcasting Co. v. United States and the 1969 case of Red Lion Broadcasting Co. v. FCC--has come to be known as the "scarcity" theory. It is based on the fact that, if the government did not regulate the use of the electromagnetic spectrum, cacophony would ensue: Numerous private broadcasters would attempt to utilize the same frequencies, with the result that no signal would be intelligible due to the interference of all the other would-be broadcasters. Accordingly, the FCC issues exclusive licenses for pieces of the electromagnetic spectrum in various locales.

But because the useable electromagnetic spectrum is limited--that is, because it is scarce--the FCC can only issue a limited number of licenses. And with only a limited number of licenses, the scarcity theory says, one cannot depend on the free play of market forces to meet all needs and tastes. Instead, the FCC issues regulations and adopts policies to ensure that the licensees meet the public interest. That public interest includes, among other things, a daytime ban on "indecent" programming.

The second rationale for content regulation is traceable to the 1978 Supreme Court case of FCC v. Pacifica, and goes by the name of the "pervasiveness" theory. At its core is the observation that radio waves are literally "in the air" all around us, and thus persons changing channels on the radio cannot readily avoid unwanted messages, even if for only a few seconds. Worse, they cannot realistically prevent their young children from listening to (or, in the case of broadcast television, viewing) material that is inappropriate for minors. Thus, the pervasiveness theory claims to justify a kind of temporal "zoning" on the radio waves--reserving programming that is only suitable for adults to the late-night hours, when the kids are tucked safely into bed.

The Idiocy of the Scarcity Theory and the Pervasiveness Theory

Neither the scarcity theory nor the pervasiveness theory makes any sense. Indeed, they are downright idiotic.

Let's begin with the scarcity theory. The risks of interference and cacophony certainly do justify licensing. Licensing, in turn, may justify some mandatory content requirements--minimum hours spent on local news, for example--on the theory that the relatively small number of licenses available in any region prevents certain needs from being met by the licensees.

But how can that justify prohibiting content? If the electromagnetic spectrum were not scarce, then there would be no need for licensing, and anybody who wanted to broadcast could do so, including some broadcasters who would transmit messages that some portion of the public deemed "indecent." Licensing already eliminates most of those speakers. To say that this licensing then justifies further limits is worse than a non sequitur; it adds insult to injury.

So much for the scarcity theory. What about the pervasiveness theory? This theory may have made some sense in 1978, when the Supreme Court decided the Pacifica case. In those days, radio dials were, literally, dials. To change from one station to another you had to go through--if ever so briefly--the stations with frequencies in between. And thus you risked listening to unwanted messages.

Today, however, most radios come with digital tuning and ready pre-sets, so that one can easily skip the in-between, potentially offensive, stations. Mechanical pre-sets existed on car radios in the 1970s, but it was usually easier just to turn the dial.

To be sure, the conventional radio was easy for young children to operate in 1978 and remains so today, but that is true of other communications devices as well--most obviously, computers that access the Internet. Yet just last year, in Ashcroft v. ACLU, the Supreme Court invalidated a federal statute that criminalized commercial web content that was "harmful to minors," because the First Amendment requires that the burden of protecting children should be on parents using filtering software, not content providers. That same principle ought to apply to broadcast radio and TV.

The Scarcity Theory and the Pervasiveness Theory Apply to Satellite Radio

Idiotic though they may be, the scarcity and pervasiveness theories are currently enshrined in First Amendment doctrine, and authorize FCC regulation of indecency.

Thus, for Howard Stern and others to invoke the First Amendment to resist the encroachment of FCC regulation into the domain of satellite radio, they must find some way to argue that these theories do not apply in space. That's a tall order.

The scarcity theory literally applies, because satellite radio is simply a set of radio frequencies allocated by the FCC to those it licenses to transmit signals from satellites. The physics underpinning the scarcity theory is identical in both contexts.

Might the story be different for the pervasiveness theory? Perhaps. Because satellite radio, cable TV and satellite TV are pay services, the end user has greater control over the signals that enter his or her house or car. The signal is not simply there for the receiving, in the way that free radio and TV are.

Yet this distinction doesn't cut it. Broadcast radio and television signals are not beamed directly to the brains of unwilling listeners and small children. They can only be acquired by radios and televisions, which in turn, must be purchased. True, the purchase of a radio or television is typically a one-time event that then enables the purchaser to acquire the free signal, but not always. Some people buy televisions on layaway plans, while conversely, some satellite radio listeners pay a one-time $499.99 subscription fee for the lifetime of their radio, and then never pay again. In any event, there is no reason why the payment plan should make a constitutional difference.

The best that can be said to justify different treatment for pay services versus free broadcast is that current technology provides subscribers to the fee services with more tools to block unwanted stations and content. But this fact is probably itself a result of the FCC's failure to regulate the pay services: Because cable and satellite operators are legally permitted to transmit "indecent" material, they supply parents with means to prevent their children from gaining access. If the FCC were to loosen its indecency restrictions on broadcast TV and radio, the broadcasters could quickly develop similar blocking tools for their signals.

Bring the First Amendment Back to Earth

To say that the scarcity theory and the pervasiveness theory apply with equal force to satellite and conventional radio, is not, of course, to say anything in favor of either theory. The First Amendment should not be interpreted to permit the FCC to regulate indecency, whether the allegedly indecent programming enters the home via a cable, antenna, telephone line, or satellite dish. Nor should it matter whether the material is then viewed and/or listened to on a radio, TV, computer, iPod, or any other device.

Whether in space, cyberspace or even on good old Planet Earth, the same simple rule ought to apply: If you find some program offensive, don't tune in (and if you have pre-sets or screening devices, feel free to use them).

As for the children, we may as well just admit that once they're old enough to listen to the radio without their parents' permission, they can get into a lot worse trouble on their own too, FCC or no FCC.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law and Politics in the Twenty-First Century, will be published by Rowman & Littlefield in March 2006.

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