Vice Squad
Sunday, May 09, 2004
Stern Fines Chill Glass

Just two days ago, while musing on appropriate regulation of indecent material over broadcast radio and television, I quoted one encomium of Howard Stern. Today's New York Times Magazine offers a second one (registration required), this time by National Public Radio host Ira Glass. Here's Ira on Howard: "...Stern has invented a way of being on the air that uses the medium better than nearly anyone. He's more honest, more emotionally present, more interesting, more wide-ranging in his opinions than any host on public radio. Also, he's a fantastic interviewer. He's truly funny. And his staff on the air is cheerfully inclusive of every kind of person: black, white, dwarf, stutterer, drunk and supposed gay. What public radio show has that kind of diversity?"

More importantly with respect to indecency regulation, Glass notes a whole litany of recent broadcasts on his (Glass's) NPR show, "This American Life," that conceivably could result in mega-fines from the FCC -- if it applied the same standards that it applied to Stern. But it seems that Glass doesn't really expect those standards to be applied: "Because the whole process is driven by audience complaints, enforcement is arbitrary by design. Political expediency also seems to play a role. Stern has pointed out how a recent ''Oprah'' featured virtually the same words he uses but drew no fine. He urged his listeners to file complaints, to test whether the F.C.C. will penalize only those it sees as vulnerable. Agency aides told The Hollywood Reporter that Oprah Winfrey was probably untouchable."

When I brought up indecency regulation two days ago, and my ambivalence towards it, I failed to mention that I believe that the large fines assessed against Howard Stern and others are unjust. Among other shortcomings, these fines do not satisfy the usual legal requirement of notice: how can broadcasters, from Howard to Oprah to Ira, know in advance what will be subject to a fine, if the fines are not based on what is said or shown but rather on whether a critical mass of complaints is received?

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