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March 18, 2004

The Daily Stern bulletin: Stern fined

: MY TAKE: So Howard Stern was fined the maximum (for now) of $27,500 for one offense for describing -- lock up grandma, kick the kids off the Internet, hide your eyes, get ready to burn in hell -- a sex act on a toilet bowl. He was fined for one statement on one station in July 2001. Details below.

So here's my take on this: The FCC had to back off. They had to fine him something after making such a fuss. But they didn't want to fine him too much and be the ones to force him off the air ... just yet. That's because Stern has become a political hot potato. So they dug up an old offense from almost three years ago -- it's not to hard to find "offenses" when your definition of offensiveness is a moving target -- and picked up on a complaint regarding only one station -- when they could have fined him for every one of the many stations on which it aired. And they got it off their desk.

But everybody's painted into a corner:

If the FCC had gone wacky on the fine and gone after millions, they now could be accused of trying to muzzle a Bush critic in the election year. If they hadn't fined him after telling Viacom and the Wall Street Journal that they would, then they'd look like wimps who backed off only because Stern was now a very vocal Bush critic -- thus proving the allegation that this is all, indeed, political. So they went for the minimum they could get away with. They wanted to pass the hot potato off to Congress.

Congress, meanwhile, has beaten its breasts about breasts and is about to complete legislation that is clearly and indecently unconstitutional, imposing $500,000 on not only the broadcasting company but on every performer per "offense." And they threw in other antimedia slaps just to make them feel good, but which are so clearly over the line that they make even Michael Powell nervous. They got carried away. Look at just yesterday's posts here: there is a building outcry about this unconstitutional outrage and perfomers' unions are starting to scream. But our lawmakers, our national nannies, are stuck: They have to pass it. The more reasonable members of Congress may hope that the courts overturn the legislation and get them off this moral and historical hook -- but by that time, it will be too late; damage will be done.

Bush has to sign the indecent indecency legislation because he said he would and because the religious right will demand it.

But Stern has already warned that the moment Bush signs it, he will leave the air. Oh, we can argue whether Infinity will let him but they can't force him -- and everyone on his show -- to undertake millions of dollars of personal liability; the circumstances of his show will have changed in a way that surely breaks his contract; they've already announced a "zero tolerance" policy: get fined, get fired. So with Bush's stroke of the pen, Bush gets rid of a Bush critic, even if that's no longer what he intends. And now I don't believe he intends it because he will only make Stern a very loud martyr.

Infinity is stuck losing a huge money maker. Clear Channel already killed its huge money maker. And together they will watch Stern make satellite an overnight success at their expense. (I'm not selling my Sirius stock but I am thinking of selling my Viacom stock.)

And Stern goes on to build a campaign against Bush -- and, by then, quite a few members of Congress. And he builds a new industry and gets the credit for it. He'll lose money and audience but he'll also lose hassle.

All because of one chrome-plated boobie. Now doesn't everybody feel like a complete jackass?

I'll report what Stern says in the morning. Below is the bulletin I filed on my Treo from my church meeting and then details from the FCC filings.

: THE BULLETIN : Just got email with this. I am blogging from church again. More later. Appears the FCC is trying to backstep. AP report:

Federal regulators continued their crackdown on indecency Thursday, issuing a fine for a broadcast of the Howard Stern radio show and ruling that an expletive uttered by rock singer Bono on NBC violated broadcast standards.
The Federal Communications Commission proposed fining Infinity Broadcasting the maximum $27,500 for a Stern show broadcast on WKRK-FM in Detroit.
The FCC also overruled its staff and said that Bono's expletive during the 2003 Golden Globe Awards program was indecent and profane, but issued no fine.
FCC Chairman Michael Powell had asked his fellow commissioners to overturn the FCC enforcement bureau's finding.
The FCC also proposed fining a subsidiary of Clear Channel Communications $55,000 for a broadcast on two Florida radio stations where the host conducted an interview with a couple allegedly having sex..

: THE RULING: Here is a PDF of the FCC filing. Amazing how much legal mumbo jumbo can go into one dumb little potty joke. The lawyers go out of their way to sew themselves a cloak of many constitutional colors:

The Commission’s role in overseeing program content is very limited. The First Amendment to the United States Constitution and section 326 of the Act prohibit the Commission from censoring program material and from interfering with broadcasters’ freedom of expression. The Commission does, however, have the authority to enforce statutory and regulatory provisions restricting indecency and obscenity.

As to the offense, it was important for them to dig up something about sex on a toilet because things sexual and excretory are no-nos and thus this was a double-play. And they found it.

As an initial matter, Infinity disputes that it aired material describing or depicting sexual and excretory activities and organs. Specifically, Infinity argues that the material contains “brief and non-descriptive references to sexual practices that employ only clinical terms such as “evacuating” and “oral sex.” We disagree. Infinity’s argument cites only one of the sexual practices described in the complained-of material. In any event, the material at issue clearly describes named sexual practices and also describes features of an excretory organ.

You have to go to the footnotes and transcript to see the actual references. For example, one of them is a "David Copperfield." I'd never heard of that in any obscene context other than "obscenely rich magician," but then perhaps I have led a sheltered adulthood. The lawyers also have lots of devils dancing on the heads of pins over why this is being penalized but other references to sex on other shows have not been. The FCC says this is worse but that is oh, so clearly subjective. (Hello, Supreme Court, are you reading this?).

Now here's my very favorite part from Infinity (my emphasis added because it's just so sweet):

Infinity argues that due to profound changes in social mores, the range of acceptable topics and words for broadcast discussion has changed dramatically, especially in light of widespread media coverage of sex scandals involving President Clinton and the Roman Catholic Church.

HEH. If news stories about b-jobs in the White House and priests diddling little boys in churches didn't corrupt us, how can Howard Stern? But the FCC rejects this.

One footnote says this:

As part of its response, Infinity indicated that it did not know whether other Infinity stations broadcast the language alleged by the complainant. Because the only evidence in the record relates to WKRK-FM, we limit our action here to that station.

That's a load of hooey. The show's syndicated on lots of stations; the FCC just didn't want to multiply this fine now. Frightening Commissioner Michael Copps, who dissented because he also wanted to revoke the station's license, calls the FCC on its own fib -- "the Commission proposes a fine against only WKRK-FM in Detroit notwithstanding that this program airs on numerous stations across the country."

It's all theater, folks. Theater of the absurd.

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Vote early, vote often
: Yehudit in my comments has an assignment for all of us -- and spread the word quickly: Go to the home page of al-Jazeera and vote in their "poll": Should Spain pull its troops out of Iraq?
Hmmmm.

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The Daily Stern: PM edition

: First, go read this post, below, about the bigger issues regarding Howard Stern and free speech. See Doc Searls' insightful argument that the problem is, we're treating speech as a channel rather than as very personal communication.

Now go see Ernie Miller's very insightful response, in which he argues that this is precisely how we should hope that content is treated:

On the contrary, the more that we treat speech as undifferentiated cargo, the better off freedom of expression is. When everything is cargo you worry more about how it is distributed than the content of the cargo....

They're both right.

From a Constitutional perspective -- from the perspective of what makes America America -- Doc is right: We must remember that speech is personal; it is our dearest right, our greatest value, our unique expression. If you don't protect our speech, you don't protect our lives and how we live them. Speech is the most fundamental of our rights.

From a government, a regulatory perspective -- what should we do about this? -- Ernie is right: Government should not differentiate one particle of speech -- whether a bit of data, a dot on a screen, a soundwave, a letter on a page, a brushstroke, or a word shouted from a soapbox -- from another. Government's only job is to assure efficient and open transport of our speech. (Now here Ernie and I might split a bit. I will argue for deregulation of speech in all ways, including business. Ernie will argue, as he does at the end of his post, that government must not abet the creation of monopolies that restrict access to distribution. I would argue, in return, that we aren't at the point of monopolies and that consolidation is necessary to protect some modes of speech.)

: I am delighted to see this discussion raise to this level. When all this started -- when I began covering these issues every day -- many tried to drag the discussion down to personal dislikes of the star involved -- Howard -- or of what each person thinks is offensive or of politics. But the issue is much, much bigger than that. It's about protecting our Constitution and our most cherished values and our very way of life. If you don't protect free speech, you will lose it, for there are many who would be delighted to take it away. But that would be unconstitutional. That would be wrong. And that is what the discussion is really about.

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Axis of appeasement
: Tom Friedman says today:

The new Spanish government's decision to respond to the attack by Al Qaeda by going ahead with plans to pull its troops from Iraq constitutes the most dangerous moment we've faced since 9/11. It's what happens when the Axis of Evil intersects with the Axis of Appeasement and the Axis of Incompetence.

It's a good and tough column -- tough not just on the Spanish for running away from democracy in Iraq but also tough on us for not sending more troops to Iraq to assure and protect the growth of democracy.

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We can only hope
: Command Post emails an alert that Pakistani troops have surrounded a "high-value target." FoxNews and the AP say it's the No. 2 man.

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Investigate
: Micah Sifry wants to spread the word on a grant for foreign investigative journalism, the Robert I. Friedman Awards. Details here. Doc says bloggers should apply. Zeyad?

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Celebrity blogging
: Mark Cuban starts blogging and Dan Gillmor shoots him five questions, which Cuban promptly answers. It's two-way, man, it's two-way.

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Profane
: I just saw the TV commercial for Mel Gibson's Passion and I have to say it felt oddly, uncomfortably profane: Come see Christ die! Now!
Can't wait until it's out on DVD and they offer the uncut version.

: But seriously... In Germany, churches are fretting about the impact The Passion will have on antisemitism there, as well they should.

Germany's Roman Catholic and Protestant churches joined the Jewish community Thursday in a rare joint declaration to warn that Mel Gibson's film "The Passion of the Christ" could fan anti-Semitism in Europe.
In their first joint statement in four years, the Central Council of Jews in Germany, the German Bishops Conference and the Protestant Church criticized the film that opened on Thursday in Germany for its "overly negative portrayal" of Jews.
"There is a danger the film will revive anti-Semitic prejudices," they said.
"This is especially explosive in view of the situation in Europe with a noticeable increase in anti-Semitism. Whether its intention was anti-Semitic or not, there is a danger it could be used as anti-Semitic propaganda."

Amen.

: UPDATE: The test of The Passion's anti-Semitism is not how many lynchings, bombings, murders, graffiti-scrawlings it causes. That meme is spreading in the comments here and in plenty of places and so I'll repeat my reply here.
The test, instead, is the critical -- that is, subjective -- judgment of the work itself: Is it anti-Semitic? I believe it is for reasons I made clear the day after it opened, when I saw it.
Now I do not believe that TV violence begets real-life violence. People who are going to go on mass-murder sprees are going to do that anyway and TV certainly cannot make them do it. So I discredit all those stupid stories of people copying TV or movies whenever they come out.
So if there are more anti-Semitic acts in Europe after the film opens, I would be the first to say that the film is not the cause, only the latest excuse.
Germany is, of course, a quite special case. There are restrictions on speech there that are understandable on one level. But at some point, they need to grapple with the fact that stopping someone from saying something anti-Semitic does not make them tolerant. These religious leaders are grappling with exactly that because of The Passion. They feel compelled to call anti-Semitism where they see it. And they see it in this film. And they should know it when they see it...

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Headless Story in Bottomless Feed
: RSS gets its moment in the mass-market sun with a story in the NY Post. It's a bit off, fretting that this could be a TiVo-like way to get around ads (when those who create feeds will decide what's in them; I think RSS is just another way to deliver and organize content).

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F the FCC
: Note that Sony came out with the cure for FCC censorship -- and media consolidation (not to mention the common cold): The cellular radio and entertainment device. You can get what you want when and where you want it and nobody can stop you.

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Good investment
: I am delighted to see that my original Hugh MacLeod cartoon-on-the-back-of-a-business-card has already skyrocketed in value.

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The Daily Stern: The real issue

: FOREST, MEET TREES: Something important happened yesterday. Three good thinkers and great writers -- blog commentator Doc Searls, print critic Tom Shales, and radio commentator Ira Glass -- have done what I've been trying to do from the start and that is, demonstrate that this is about more than Howard Stern. It's about you. It's about free speech. It's about your freedoms. It's about our Constitution, baby. Read on.

: DOC SEARLS: Inspired by something Shales said (below), Doc reconfigures the entire discussion brilliantly and I hope he'll forgive for quoting at length (with my emphases added):

So one wonders why an apparently sane and well-informed bureaucrat like [FCC Chairman Michael] Powell — an avowed pro-market regulation-averse conservative, no less — would suddenly get so censorious. Same with Congress. What makes them so eager to discourage undefined "indecency," apparently at all costs?
As always, the answer is metaphorical.
Ever since we reconceived press and broadcast as "channels" and "media," and their goods as "content," we have understood them, literally, in terms of shipping.
When you subsume speech into "content delivery," you reduce it to cargo. It becomes just another deliverable. Packing material. You can abridge its freedoms all you want. (At least on the broadcast side. It's a little harder where printing presses are still involved.)
Speech, as the founders conceived it, was something that happened among people, in society. It had a place: the street, the parlor, the town square, the village commons. Even when published, by a press, it was still personal. Take the example of Franklin's original blog, Poor Richard's Almanac. It was a form of printed speech that grew and spread like a weed on the lawn of the marketplace. But popular as it may have become, it was still "speech" because it was personal. People speak. "Content" doesn't. It's just cargo. And you can regulate the crap out of cargo.
Here's what's truly offensive about Stern to the Torquemadas in the FCC and Congress: he's personal. And he's real. Howard's show resembles nothing else in radio (least of all the forced-laugh morning "zoo" shows that so fully misunderstand Stern that all they can do is copy, poorly, his bits involving strippers, celebrities and silly news items); yet it does resemble something a few millon of us know well: the neighborhood bar. A place where buddies are free to act like jerks because, well, their buddies understand them.
My point: a bar is a place. Free speech happens in a place. The very presence of a local bar on everybody's radio both offends and threatens the shipping mentality of the mediocracy — a group that includes not only giant mutant transport companies like Clear Channel and Viacom, but also its allied lawmakers and regulators: Congress and the FCC. That's why the latter feel just fine "controlling" what "goes out" through "the media" as if all of it were container cargo.
Got a consumer complaint about certain kinds of cargo? Hell, just forbid traffic in it. Send out the indecency-sniffing dogs. Impound forbidden goods at Customs. Fine the offending freight packers and forwarders. Never mind that nobody can define "indecency." The dogs know.

Beautifully said. Speech is personal. And when government tries to regulate speech, it is personal. It's about you. It's about me. It's about our Constitution, man.

: TOM SHALES: He's a former competitor of mine (he won) and an amazing writer; I don't agree with everything he says about TV shows or government regulation.
He makes the same braindead argument some braindead congressmen are making, trying to make media consolidation a sex act:

As wary observers have noted, one factor clearly responsible for the overabundance of smut in TV and radio is the concentration of media ownership in fewer and fewer sinfully wealthy hands-and the death of localism it is helping to bring about.

That's ludicrous on its face: Larry Flynt could buy one local radio station and make it into the Hustler soundtrack. That argument is just wrong.
I am consistently against regulation of speech, whether that's the government saying who can speak or the government saying what they can speak. So Tom and I disagree on that.
But we strongly agree that Congress and the FCC have gone insane over a mere breast and that they are doing dangerous things. They are setting us up so that a few unelected bureacrats will be allowed to decide not only what can be said by whom but also to impose punishment on those who do speak:

For 20 years, listeners to Mr. Stern's radio program have known precisely what to expect. Howard Stern may make an unappetizing poster child for First Amendment freedoms, but he's as entitled to them as anybody....
Of course no acceptable working definition of "indecency" exists, which complicates things. Who decides what is indecent? Maybe it will be left to the whims of Chairman Powell. The new $500,000 fine for individual acts of indecency would apparently apply not only to licensees but also to personalities, like Stern. And what about a panelist or guest on a talk show who utters a naughty-naughty? If George Will loses control (an impossibility, admittedly) and spews a longshoremanly blue streak some Sunday morning on ABC, will federal marshals arrive at his doorstep on Monday?...
Whatever happened to letting "the marketplace" decide? All we've heard for years from FCC appointees-Powell included-and other political leaders of a particular persuasion is that the marketplace can police itself with no help from meddlers in Washington. That theory was gospel-until L'Affaire Nipple and until the FCC ran into unexpected opposition in its attempts to let Big Media get still bigger.
Howard Stern does just fine in the marketplace. Many people find him offensive and don't listen. The same can be said of Rush Limbaugh or Bill O'Reilly....
Remember Al Pacino in "And Justice for All"?-"I'm out of order? You're out of order! This whole court is out of order!" Somebody has to go up to Capitol Hill and start screaming, and what they can scream is, "I'm indecent? You're indecent! This whole [expletive deleted] Congress is indecent! Attica! Attica! Attica!"
Oh, wait. That was another Al Pacino movie. Anyway, what a chicken-hearted and lily-livered Congress has wrought is not merely indecent. It truly is obscene.

Amen, brother critic, amen.

: IRA GLASS: I heard this week's This American Life on NPR last night as I drove home from the NJ.com blog MeetUp. Host Ira Glass started the show talking about his every-morning habit of switching back and forth between Howard Stern and NPR. He didn't say it with the slight hesitation or explanation or apology; he said thousands do it in every market; the combo audience is smart and highly-educated. Yes, we are.
And then he talked about how this story is being framed -- the pressthink of it. To Howard, he said, it's a simple First Amendment story -- "not an issue of him going too far but of the government going too far." Amen. To the press, he said, it's treated as a wacky story -- oh, that wacky Howard said something wacky again and he's getting in trouble for it; that framing of the story, Glass said, isn't in the least bit helpful. Amen again. The religious crusaders going after Stern thing they are saving children and Glass had a conversation with one of their leaders asking what the real harm is if a child hears the words "anal sex" -- no, what's the real harm?
But Glass said the real story here is that we are undergoing a sea change in how government will regulate and control media and speech. It's a big story, a real story, an important story.
This from someone who listens to NPR on NPR... and a Howard Stern fan.

: A CALL TO ARMS... AND BREASTS!: The theme here is that everyone has missed the real story.
It is especially shocking that journalists -- who depend on free speech for life, like coma patients on the IV -- are not speaking up in anger, in rage. They should be protesting. They should be daring the FCC and Congress to come and get them. They, of all people, should be protecting the First Amendment against this attempted murder.
Katie Couric and Diane Sawyer and (even) Barbara Walters should get on live TV today and rip off their blouses and bras!
Tom Brokaw and Bill O'Reilly and Dan Rather should drop their drawers and show their weenies and say, "That's the way it is."
Rush Limbaugh and Al Franken and (even) Don Imus should let out a blue streak of seven -- no seventy -- dirty words, shouting them over and over until every 10-second and 90-second delay is gone and there's nothing but air between them and us.
This is serious, people. This is not about Howard Stern. This is about you.

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The Daily Stern: Briefs
: The big Stern post is above. Here are some other updates as the day goes on:

: IT'S ABOUT TALK RADIO: Conservatives are worried that once one talk-radio host is censored, all can be censored. The American Spectator properly frets:

Legislation like this sets a precedent. If stations can be shut down for the garbage spewed by Stern, what happens when President Hillary advocates, and gets passed a liberal Congress, legislation which allows complaints to be filed for hate speech. Hate speech could well be defined as exactly what Rush, Sean Hannity, Mike Reagan and others put out over the airwaves.
Talk radio is becoming stronger, not weaker....
News Talk formats saved AM. AM stations were on the brink of extinction until talk radio came along. It came along because the so-called "fairness doctrine" was repealed during the Reagan Administration. Media was also deregulated. That came with a price. The price was Howard Stern and his filthy local counterparts.
The idea was that people could be their masters. If they didn't think a station was appropriate they would tune elsewhere. The market would rule.

Until you go to tell the market to go to hell; Congress and the FCC know better than we, the people.
Well go to George Bush and Michael Powell and all the guys on your side of the aisle in Congress about this. Tell them to think twice before the go shooting holes through the Constitution. It's your Constitition, too. And as for the Democrats... Well, Al Franken, let's see you make your first day on the air a rallying cry for free speech and talk radio! [Thanks,TVsHenry]

: MEANWHILE, BACK AT THE RANCH: Howard plans to put up on the Internet the complete list of what the show's button-hitter, Dead Air Dave, has cut out of the show. "I must have crapped in my pants," is one of the indecencies from which we've been saved. But now you've been corrupted.

: HYPOCRISY: The New York Post is picking up on the corner into which Clear Channel has painted itself by pointing out all the no-no's that occur on its concert stages. News bulletin: Chris Rock says bad words! Brittany Spears girates her hips! Whatcha gonna do about it, CC? [Thanks, Beat Royalty]

: NEXT: They said this morning that the Senate gets back to work from vacation at the end of the month. That's when they will take up their indecent indecency bill and reconcile it with the House's and send it to Bush. That is when Howard says he will go.

: SHOCK THE VOTE: The Boston Globe asks whether Stern could move the election.

: ON SECOND THOUGHT: In the true spirit of a Stern fan, I'll amend my list of suggested bra-busting protesters (above). How about, instead: Norah O'Donnell, Soledad O'Brien, and, oh, Kelly O'Donnell. Yeah, that's better.

: LIKE THE MAN SAID, YOU CAN'T PICK YOUR POSTER CHILDREN FOR THE FIRST AMENDMENT: Instead of any of the nominees above, we get Courtney Love (on a detour on her way to the slammer) exposing herself on Letterman.

: PREVIOUS DAILY STERN POSTS: here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here.

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And the lion and the lamb shall report together
: Jay Rosen has a great post about a blogger who watches the LA Times for any sign, any smell, any confirmation of liberal bias and who gets utterly gobsmacked when the Times listens to him.
The Times reported on a no-no by conservative Supreme Court Justice Scalia; Patterico was incensed that they did not report the exactly comparable no-no from liberal Justice Ginsberg. He wrote about it on his blog and wrote to the Times and snidely, cynically assumed -- as gospel -- that the Times would never write the equivalent story about Ginsberg.
Well, as Gomer used to say: Surprise, surprise, surprise! Look what happened:
The reporters contacted Patterico and wrote the story and it, too, played on Page 1.
Jay sees this, rightly, as a powerful example of the new, two-way relationship in news media.
Now it so happens that only a few hours before, in two separate posts, I had written about how blogging has made me discover that new, two-way relationship between poster or publisher and public. (And that's why Jay and I became such fast friends and colleagues in blogging; from the first moment we met only, we happened to be thinking and writing about the same things; strange digital kismet; the real social software.)
And the point is, it truly is possible to create a new relationship between big media and the public once both sides listen and respect each other, once it truly becomes two-way.
Go read Jay's whole post because it's a compelling tale and an important view -- a revolutionary view -- of journalism. To Jay, the real journalism going on here was the blogger's, the citizen's.
And the real hope is that both sides learn to respect each other more and listen to each other more and not be so cynical about each other. (That's what I was trying to say yesterday when I talked about getting big and little media together in a bar to learn that, yes, everybody is trying hard to do the right thing.)
The press can't do this alone, without the journalism and dogging of the citizens. The citizens can't do it alone without the resources and dogging of the press. Together, they -- we -- can do important things for society.
See the dawn of a new age of journalism at Pressthink.

: Paterico leaves a comment complaining that I was harsh in my tone by calling him cynical and thus implied that he had no cause to be cynical. I apologize and want to make that clear. This is what I said in response to his comment:

I did not mean to say that there was not cause for cynicism; what I mean to say is that the only way to CURE that cynicism is to do EXACTLY what Patterico did and EXACTLY what the LA Times did in response. This is a success story; that's Jay's point so well stated.

And we need more such success stories.

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The utter folly of playing to al Qaeda

: In The Australian, Greg Sheridan debunks all the bunk about thinking that we can influence the insane behavior of al Qaeda.

The debate this week over whether having, unlike Spain, gone to war in Iraq makes us a greater target for terrorist attack has had one missing ingredient - the terrorists....

If only we have the approval of the UN, al-Qaeda won't attack us, this thinking sometimes goes. But al-Qaeda bombs the UN itself. Well, then, if only we opposed US foreign policy, specifically the war in Iraq. But al-Qaeda and its affiliates attack Indonesia, which opposed the war, and Turkey, which refused to let US troops enter Iraq from its soil.

The failure to look seriously at al-Qaeda and what motivates it leads to a repeated analytical failure. Surely al-Qaeda and its affiliates are one of the most extraordinary and important fanatical movements in recent history. Yet our intellectual class is almost entirely uninterested in them. A paradox, no? ...

Everyone now repeats the mantra that being an ally of the US increases our risk of becoming a terrorist target. Yet al-Qaeda attacks so many nations that are not allies of the US. Who can possibly say with authority what increases the risk? ...

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