The Howard Stern Moment
Why Christian conservatives must defend shock radio.
by James Leroy Wilson
April 22, 2004
The years of 1989-91 were remarkable. Beginning with free elections in Poland the summer of 1989, to the opening of borders between Austria and Hungary which precipitated the collapse of the Berlin Wall, the election of Vaclav Havel to the Presidency of Czechoslovakia, the freeing of Nelson Mandela, and the collapse of the Soviet Union in late 1991, I was persuaded that we were beginning a new age. Perhaps not "The End of History" as Francis Fukyama called it, but I did anticipate an increasingly freer, better world. These changes were brought about not through war, but through statesmanship and peaceful social revolution.
Who'd have thought that the counter-revolution against freedom would emerge within the United States? I don't know if it began with instituting the death penalty for "drug kingpins," or other draconian measures like Mandatory Minimum Sentences, leading to an explosion of the prison population. Or maybe the invasion of Panama or the Persian Gulf War. At the time, I was either indifferent to these developments or even supportive. But the seeds of our ever-growing Imperial State and Police State were planted
Then came the siege at Ruby Ridge, provoked by a man buying the wrong kind of gun from an undercover cop. Then came Waco, an atrocity for which we have yet to repent. Over time, new pointless government interventions, at home and abroad, stepped up in frequency. The Iraqi sanctions which punished the Iraqi people but not Saddam Hussein. Haiti, Bosnia. Bombing raids on Iraq. The Tobacco Extortion. Kosovo, a war waged on false pretenses without even a United Nations "mandate." The kidnapping of Elian Gonzalez from his relatives in Miami so that he may enjoy life as a slave in Cuba.
Criminal acts by both sides in the 2000 election - uninvestigated and unpunished. No one getting fired for obviously massive failures on September 11. The Patriot Act. Guantanamo Bay. The Department of Homeland Security. The McCain-Feingold Censorship of Dissent Act. Freedom Fries. The invasion of Iraq. The persecution of Martha Stewart. The War on Obesity. Ballooning the federal Departments of Education and Agriculture.
Right now, the optimists' view would be that things can't get any worse. But they can get much, much worse. Think of re-instituting the draft. Or being forced to carry a National ID card to get anywhere or do anything. Think of Uncle Sam replacing Big Brother, watching your every move.
Something almost as bad as the draft (I don't know how anything could be worse than a draft) will be an inevitable government attempt to control the Internet, cable, satellite communications, and - yes - the traditional press itself. If the Right acquires these powers, then the Left, once they get in control, will use those powers against non-egalitarian religions such as Evangelicalism and Catholicism. Their universities are already servile to the State; next will come punishing their broadcasting content. And then their internal operations, ministries, and policies.
Conservatives, especially religious conservatives, have a unique opportunity in history. They can defend their own freedom today, and roll back the tide of the Secular Police State, if they do one thing: defend the freedom of speech of Howard Stern and the freedom of radio station owners to broadcast his show. If religious conservatives don't do this, now, then they will lose. The Culture War will be lost. For the Culture War was never really against pornography, or homosexuality, or feminism, or drugs. The enemy was never Howard Stern, or Hugh Hefner, or any capitalist trying to make a buck pleasing an audience.. They were never the threat. The enemy has always been The State. The State is a shark, craving more and more power and not caring what it devours along the way. Using the State to persecute indecency, is a license to let advocates of indecency, once they control the State, to persecute Christianity.
Janet Jackson's breast-baring during the Super Bowl halftime show started the current fiasco. Congress and Chairman Michael Powell of the Federal Communications Commission exploited that silly episode into an opportunity to grab more power, even though the backlash was immediately felt in the free market. More stations started instituting seven-second delays of live broadcasts to delete offending words and scenes. MTV was fired from producing the Super Bowl halftime shows. Ms. Jackson was disinvited from performing at the Grammy Awards. The American people said, "This went too far" and the market corrected itself.
Even so, the House passed legislation which would hike fines over ten-fold for each and any instance of "obscenity" - so that it could punish even each affiliate station for network content the affiliate's managers could not control. On Monday, April 19, the management of Chicago's WLS-AM 890 sent a memo to its hosts regarding what words and phrases might now be considered worthy of fines by the FCC. Ultra-conservative morning drive co-host Don Wade explained to the listeners, and felt he was taking a risk in doing so, that uttering the word "tool" might be risky if someone interprets the use of the word in an offensive way. Afternoon drive host Roe Conn was looking forward to referring to the Vice-President as Rickey Cheney.
This is called a "chilling effect." When nobody knows what the rules are - if the FCC's position is, "I can't define obscenity, but I know it when I hear it," and the fines get so high that station owners do not want to take the risk of airing controversial hosts, then freedom of speech has disappeared.
And there are three, at least three, things wrong with this whole process.
First, let's take for granted that the airwaves, by their limited space, are public property, and that private or commercial use of public property ought to be regulated. Fine. But since when is all "public property" under the ownership of the Government of the United States? Are there any high-power stations whose frequencies broadcast throughout the entire nation? Ditto for televisions stations: whose broadcast tower can reach the entire nation?
Is a schoolyard playground or city street the property of the federal government just because it's "public"?
I know that the airwaves are different because they can cross state lines. But there are scores of locations on the AM and FM radio dials, and many UHF television channels to add to the 13-station VHF channels. These are all "public" but they have limited geographical reach. There are dozens of opportunities to get information and entertainment; if one source is not to your liking, then find another. If you don't like a restaurant on a city street, that doesn't mean that the city should shut it down, even if - especially if - it's popular. In a city's downtown, there aren't unlimited opportunities to find what you want, but there is a wide variety; you should find something you'd like. If you don't enjoy anything, you have no obligation to buy. Just because you ventured downtown only to find out you didn't like anything it offered, doesn't give you the right to prevent others from visiting those same places. Just because you don't like something, doesn't mean other people shouldn't like it. Likewise, if you don't like what you're hearing or watching, you can turn the knob or turn the radio (or television) off.
Second, even though I will admit that I don't believe the First Amendment applies to "obscenity" as defined by local communities, it is ridiculous to pretend that the federal government has any power to define it or censor it. There is no provision in the Constitution that empowers Congress to regulate obscene speech. If the people within a state or local jurisdiction believe that Howard Stern's radio show is obscene, they can use the pressures of the marketplace and force it off the air, or exercise their Tenth Amendment rights to prohibit local radio stations from broadcasting it. They can try to jam signals originating from other jurisdictions which air the offending content. Or they can simply prohibit people from listening to the show and try their luck at enforcing such a totalitarian measure. All of that is a far cry from any radio station owner being guilty of a federal crime for broadcasting Stern's show. What is obscene in Mobile, AL or Provo, UT might not be obscene in Las Vegas or New York City. The federal government's jurisdiction is just too wide. Uniform, "national' standards might be too "liberal" for some communities to stomach, and too "conservative" for others to stomach. This would mean injustices to both liberal and conservative areas, forced to kow-tow to a national monopoly of broadcasting regulation, instead of allowing local communities to regulate themselves.
But these are small potatoes considering the real problem with the persecution of Howard Stern and other supposed "shock jocks." And this is the problem of the FCC itself. And of the Federal Elections Commission, the Securities and Exchange Commission, and the Food and Drug Administration. These are lawless, unaccountable bureaucracies whose very existence fly in the face of the rule of law, especially the Fifth and Sixth Amendments.
The Fifth Amendment reads, in part: "No person shall be ... deprived of life, liberty, or property, without due process of law..."
The Sixth Amendment reads, in its entirety:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence."
These two Amendments, taken together, altogether refute the "judicial" power of the FCC and many other regulatory agencies. They simply do not have the power under the Constitution to levy fines.
In the Constitutional system, Congress passes bills, including what it considers to be federal crimes. The President, if he agrees with the bill, signs it into law and his executive branch investigates apparent violations. The accused is put on trial before a local jury.
This is what the Constitution mandates. Even under the dubious notion that Congress has the right to control the public airwaves all over the nation, and under the even more dubious notion that Congress can define and prohibit obscenity - still, the Fifth and Sixth Amendments mandate without doubt that fines or other punishments for violating federal "obscenity" laws must come from a guilty verdict of a jury, not from a bureaucracy of unelected officials like the FCC.
A radio station owner, under the threat of fines from tens of thousands to hundreds of thousands of dollars, deserves his day in court. The FCC and similar agencies who make up their own laws ("regulations") and then serve as their own cop, prosecutor, judge, and jury, are renegade agencies. They are unconstitutional monstrosities in our government and are unworthy of a free society.
That is the issue here. If religious conservatives do not defend Howard Stern and the stations that air his show, they are not only letting go of their own First Amendment freedoms of speech and religion, they are also giving away their Fifth and Sixth Amendment rights to a day in court.
This isn't a matter of defending the content of Stern's show, but merely of asserting our rights as Americans, much as the Apostle Paul asserted his rights as a Roman. This is simply asking the government to play by its own rules, the rules set out by the Constitution. If radio stations that carry Howard Stern's show are guilty of a crime called obscenity, take the case to a jury.
By the same token, if Leftists try to persecute Christians for airing "obscene" views, Christians will then have the same right, to take the case to a jury. Juries are elements of a democratic society. Federal regulatory agencies are not.
Will conservatives defend the Constitutional rights of Howard Stern and the radio station owners that air him? I sincerely doubt that they will. Nevertheless, they should. For just as Christians might view Stern's program as scandalous and foolish, so do many view Christianity the same way. The bloodthirsty teeth of the State doesn't care either way, it will as soon devour the one as the other, preferably both. The enemy hadn't been secularists using the State against conservatives, or Christians using the State against liberals. It was always about our common enemy, the State, dividing us all against each other so that it might increase in power. The obligation of us all is to fight that power.
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A father learns from the wisdom of his toddler.