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The FCC Tries To Silence Howard Stern:
Can the Radio Shock Jock Sue?

Tuesday, Apr. 13, 2004

Last Thursday, April 8, six stations owned by Clear Channel Communications -- the nation's largest radio chain -- gave infamous radio personality Howard Stern his walking papers.

Earlier, the Federal Communications Commission (FCC) had announced that it would impose a $495,000 fine on Clear Channel for "indecent" content on Stern's show. In light of this announcement, John Hogan, Clear Channel's President, said he felt he had no choice but to can Stern, for his show "has created a great liability for us and other broadcasters who air it." Hogan also said he feared Clear Channel could be de-licensed if it did not get rid of Stern.

Stern has written in a statement on his website, "It is pretty shocking that governmental interference into our rights and free speech takes place in the U.S." And he has prominently posted there a quotation from a Supreme Court decision: "If there is a bedrock principle of the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Stern is right: There are serious First Amendment issues here. So why isn't he suing? After all, a Supreme Court case, Bivens v. United States, allows suits against the government for damages when constitutional rights are violated. Stern certainly has suffered damages from losing his relationship with Clear Channel -- and he's likely to suffer more. (Stern's syndicating company, Infinity Broadcasting, has promised not to drop his show. But the FCC may simply fine it out of existence, as a punishment.)

The answer may be that lawyers have advised Stern that he can't win. And sadly, if they have, they may be right. In this column, I will focus on three particular legal principles that would pose obstacles to Stern if he were to sue. Just as comedian George Carlin, years ago, called the words the FCC prohibits speakers from saying on the radio "Seven Dirty Words," it might be appropriate to term these legal rules "Three Stupid Doctrines."

The First Obstacle for Stern: The "State Action" Doctrine

The first principle is the "state action" doctrine. For you to sue the government for what it did, you have to prove it was the government that did it.

Here, however, it was Clear Channel that fired Stern -- albeit under heavy pressure. And that fact might provide some impediment to Stern filing a successful suit for infringement of his First Amendment rights.

If the government had simply censored Stern directly -- for instance, requiring his tapes to be pre-screened, and refusing to approve them -- then the case for "state action," and Stern's suit, would be stronger.

Why is this doctrine stupid? What's stupid isn't the state action requirement itself -- for government action ought to be treated differently. What's stupid is pretending that when the government effectively forces private action, the action remains private, rather than being transformed into state action.

Threatening a radio station with de-licensure is like putting a gun to its head; if de-licensed, it won't exist. Expecting the station to act freely under that kind of pressure is simply unrealistic.

Only a true maverick like Stern himself -- or his syndicator, Infinity Broadcasting -- could hold out under this kind of pressure. And even Stern and Infinity won't be able to hold out forever -- they simply don't have the money to do so, which brings us to our next point.

The Second Obstacle for Stern: Damages Cannot Be Recognized as, In Effect, An Order

The second stupid legal principle, which is closely related, is the distinction -- particularly in the First Amendment context -- between being faced with damages for doing something, and being ordered not to do it.

Suppose the FCC had issued an order telling Stern never to speak on the radio again. There would have been a public outcry, and not just from Stern's many fans. And that outcry could easily be taken to the courts: Gagging a speaker is the kind of "prior restraint" the First Amendment disfavors, and a court faced with a FCC order would probably void it.

So far, so good -- but ironically, the court, in voiding the order, might simply tell the FCC to use its fining power instead, as an alternative. Indeed, the court might cite this very alternative as a reason why it was wrong for the FCC to order Stern to be silent.

But when we're talking about the amounts of money at issue here, again, there is little difference between an order to pay money for speaking, which can have the effect of silencing a speaker, and a court order saying "you must be silent."

A company's director or officer could get sued for breach of fiduciary duty if he intentionally brings almost half a million dollars of liability on the company, even for First Amendment reasons. In this sense, Clear Channel's head truly did have no choice.

Ironically, the fact that Stern is a wealthy individual may only make the situation worse for him. With a pot of money on the horizon, the FCC may be more likely to go after him directly -- seeking to put Stern's money where his mouth is.

That's unfair -- the more so because it was Stern's style and content of speech that made him rich in the first place. Wouldn't an attack on the New York Times Corporation -- which also makes its money from speech -- be an attack on speech itself? Of course, no one equates Stern and the Times (the Times is not half as funny, for one thing), but the same free speech principles apply to both.

The Third Obstacle for Stern: No Estoppel Against the Government For Late Speech Enforcement

Perhaps the most aggravating aspect of the Howard Stern case is that he has been speaking this way for so long, that the government's actions seem not only inappropriate, but immensely belated. Even within the Bush Administration, more than three years have passed. And prior administrations have largely ignored Stern.

But according to our third stupid legal principle, that doesn't matter. While private parties can be bound by the doctrine of "estoppel" -- which is, roughly, the principle that you can't change horses midstream by suddenly taking a position you never voiced before -- estoppel against the government rarely works.

To some extent, that's for good reason: The Bush Administration shouldn't be bound by Clinton Administration positions, since that would thwart voters' wishes for policy change.

But things get much more dicey when a government action that affects free speech occurs late in a given Administration's tenure, and when there hasn't been any genuine, relevant chance of circumstance. In that instance, it seems sensible to treat a given Administration as one might a private party in litigation and say that estoppel applies: You can't change your mind at the last minute, when many have relied on your previous position (or inaction), and nothing has changed.

"Nipplegate" Fallout Continues To Unfairly Punish Speakers Like Stern

Here, it is the government that has changed its position, not Stern: The Janet Jackson "Nipplegate" incident has the FCC up in arms. But should Howard Stern suffer for Janet Jackson's (alleged) sins?

Stern's own speech has not become any more offensive or controversial than it always was. And the radio shock jock has built his career based on the government's repeated decision not to go after him for "indecency. " It's unfair for the government to change the rules so radically at such a late date.

And it's not only Stern who is being affected. Even now, warning memos are doubtless being circulated, and speakers who are worried about losing their radio or television podiums are doubtless keeping outrageous thoughts to themselves. And that's a great shame, because speech is often outrageous precisely because it hits on truth; it is often comic because it dares to say what we all know, but won't voice.

Only speech without fear is truly free. And when the rules for speech change, for no good reason, fear is inevitable -- and, as I explained in a prior column, the "chilling effect" that is anathema to the First Amendment is inevitable, too.

Howard Stern is unusual, and admirable, to resist that chill. But he may not be able to do so forever -- and if he caves, it won't be his fault. It will be the fault of the government for putting more pressure on the right to speak freely than even Stern can bear.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes MP3 and text downloads of the novel's first chapter.

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