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During half-time of the recent Super Bowl, over 100 million Americans were treated to a gratuitous display of pornography, and there is now a renewed interest in how to keep our cultural air ducts safe. I'm no newcomer to the issue of trash and pollution in and on our airwaves—I've been talking and writing about this since the 1990s. Senator Joe Lieberman and I used to give out "Silver Sewer Awards" to those who harm and degrade American popular culture.
But then, as now, I was not seeking censorship by the government. There is a distinction, after all, between censoring and censuring. To censor is to suppress, to engage in prior restraint by the government. To censure is to criticize and express disapproval. And, of course, Joe Lieberman and I were acting in our individual—rather than governmental—capacities. Recently, in light of Howard Stern's comments describing graphic sexual activity and his show's broadcast of the "n"-word in an especially offensive context, Clear Channel removed Stern's show from six of their stations. That was private action taken by Clear Channel—the government did not take Stern off the air. Clear Channel, a private corporation, made the decision. This was not censorship.
I believe—and always believed—that government, as an institution, is normally for deployments of last resort, to do what individuals cannot do or are not as efficient as government in doing (as in waging war); and to pick up where individuals fall and fail (as in providing Social Security and welfare). And, it appears to me in light of the recent controversies, individuals and private decision makers are taking their responsibility for the public airwaves seriously. When private decision makers do this, the government does not have to, and should not. Yes, there are government instituted fines for indecency—and they likely influence private decisions. But that is to the good, just as there are fines for other kinds of public polluting—the effect of which does encourage private corporations and individuals to act more responsibility; to not trash the streets, the air, or the culture.
Indecency fines are effective to be sure, and they probably should be increased. But more effective is the public response—and that response, once awakened, is why Clear Channel stopped airing Stern just as much as why CBS cancelled his television show in 1999—it was not government action, it was people action; action like letters, radio-call-in, and the all-American First Amendment exercise of more speech; including, at times, the boycott of sponsors.
As a matter of First Amendment law, the Supreme Court has found that fines against indecency on the public airwaves are not unconstitutional. The Court has rightly held that there is a hierarchy of speech to be protected. Political speech does and should receive the highest level of protection. Other speech, depending on its subject matter, can be regulated—especially as to its time, place, and manner. For example, there were very few calls in the liberal community—the community that typically raises the loudest cry against any kind of censorship—over the FTC's suit against RJR for using Joe Camel as a means of advertising tobacco products. The liberal community, in that case, understood what many of us had been saying for years: that imagery and words—for entertainment or for advertising—matter; they have a purpose and that purpose can be corrupting, not just to our mental and cultural health but also to our physical health. Our government is right to allow RJR to advertise it products, but it is also right to regulate how it so advertises. Our children's brains should be seen as equally, if not more, important as their lungs.
Howard Stern is free to speak—in graphic, pornographic, and even racist terms. But our corporations are also free to refuse to give him a microphone to do so. And if they did not exercise their own self-restraint, they would possibly have to pay a price in fines. Such is the price to be paid for handling the public trust of the public airwaves; such is the price broadcasters pay for their license the government protects by not allowing other broadcasters to bleed into their frequency. There is no law, and should be no law, keeping Stern from speaking; but red light districts should not receive easements to trespass into our living rooms, our carpools, our school yards, or on to Main Street.
Stern can say what he wants, however offensive, to live audiences in comedy clubs, on c.d.s, and tapes. What he should not be able to do is put what is suitable in a nighttime, adults-only, red-light district club on prime time morning public air. That is the rational, free, standard agreed to by acts of Congress and society as a whole. Many stations have made the decision to keep airing him. That is their right. If the government acts with fines down the line, that, too, is the government's right—the people voted for representatives who made the laws that demarcate those fines, and those red lines.
Stern's broadcast did not meet the censorship of government; it met the decision and censure of station owners who acted—perhaps in advance of or before a government fine. But Clear Channel's actions are to be saluted—whether they acted for altruistic or financial reasons. Their action sends a signal broader than their six markets reach.
In the end, how we entertain ourselves—as much as how we advertise our products—is not a trivial thing. As my friend Irving Kristol wrote long ago, "[I]f you believe that no one was ever corrupted by a book, you have also to believe that no one was ever improved by a book (or a play or a movie)." To accept this line of thought, Kristol concluded, "You have to believe...that art is morally trivial and that education is morally irrelevant." No one truly believes that. Thus, if we as a society bring back concepts such as shame as well as personal, civil, and corporate responsibility, we will not need the law to impose fines. In other words, if we refuse our individual and corporate responsibility to be censurers, we cannot be surprised when we hear a call from censors.
If we openly accept our right to judgments about what is healthy—for our minds as well as our lungs—we will all breathe much more freely, whether the air in question comes from our steel mills' smokestacks or from our entertainment's cultural air ducts.
