TechKnowledge No. 90

Howard Stern and the Future of Media Censorship

By Adam D. Thierer
October 11, 2004

Radio “shock jock” Howard Stern is bolting to satellite radio, signing a five-year deal with SIRIUS beginning in 2006. His transition from broadcast to satellite radio signals a tectonic shift in the center of media power away from traditional providers to new types of outlets and technologies. That much everyone has probably already figured out. What’s more interesting, however, is what all this means for the future of media regulation by Washington lawmakers.

Consider for a moment just how bad this past year has been for media.

It all got started with last year’s brouhaha about media being “too big” or not diverse enough. Although citizens have access to unprecedented amounts of news, information, and entertainment, many in Congress and at the FCC have been pushing for increased regulation of media business practices and ownership patterns. Some in Congress posit that there is an inverse relationship between media size and quality and would use economic regulation as a back-door way to regulate content.

Then, in the middle of this heated debate, Janet Jackson did something really stupid in front of a few million television viewers. The censorship hounds were unleashed. The FCC started handing out record fines and Congress whipped up legislation to greatly ramp up those fines. By just one vote, a Senate amendment was defeated in committee that would have imposed these rules and fines not just on broadcasters, but on cable and satellite providers too. Another Senate amendment proposed the regulation of “excessive violence” in media.

Meanwhile, the threat of regulation led some broadcasters to dump popular radio personalities, including Stern when Clear Channel dropped him from their stations. Most recently, the media bashing game has taken on an even more disturbing aspect with the suggestion by some Republicans, like House Energy and Commerce Chairman Joe Barton (R-TX), that CBS News’ newsgathering tactics and motivations should be the subject of an official investigation in the wake of the “Rathergate” documents scandal.

So, let’s step back and take stock of where we stand today. Lawmakers and regulators are proposing regulation of the underlying business practices or ownership structures of the press, the content the press airs, and even the newsgathering methods and practices they utilize.

Anyone who cares about the First Amendment and press freedom should find this chilling. Apparently, “Congress shall make no law” abridging press freedom now has several caveats. Congress shall make no law unless they think media is “too big,” or unless they don’t like some of the content they see or hear, or unless they want to investigate newsgathering practices by a major news anchor many congressmen have long despised.

Of course, many members of Congress have long expressed casual disregard for the First Amendment. They have spent the last decade, for example, attempting to slap a variety of content controls on the Internet. Luckily, the courts continue to slap down congressional overreach when it comes to the ‘Net, stressing how much different it is than older press outlets and technologies.

But, while we can be glad that the Internet and cyberspace have thus far been able to evade government controls, a two-tier system of First Amendment freedom is neither sensible nor sustainable. Is it fair, for example, that CBS.com gets the gold standard of press freedom while CBS television or radio gets second-class citizenship rights in terms of First Amendment protections? If CBS airs a clip on its stations deemed “indecent” by just three of the five FCC regulators, they get fined. But if that same clip is broadcast on the ‘Net, those regulators can’t touch it. Does that make any sense?

At some point in the near future the illogical regulatory distinction between traditional broadcast and new media will be challenged in the courts. And Howard Stern may provide us with the test case. He is jumping over to satellite radio with the expectation he will be free to speak his mind. Today, that is true, but will it be in the future?

While the Senate failed by one vote to pass the amendment imposing traditional “indecency” fines and regulation on cable and satellite networks, the fight is hardly over. Several members of Congress such as Rep. Barton, have hinted that they will continue to push for traditional broadcast regulation to be imposed on new, subscriber-based media outlets. If Congress or the FCC try to impose traditional content regulations on Stern-or anyone else operating in the new media space (cable, satellite or the Internet)-it will force the constitutional question of whether government can and should censor the media in the future.

Whether Howard knows it or not, he may be ushering in a revolution in censorship policy and First Amendment law.

Adam Thierer (athierer [at] cato [dot] org) is the director of telecommunications studies at the Cato Institute in Washington, D.C. To subscribe, or see a list of all previous TechKnowledge articles, visit www.cato.org/tech/tk-index.html.