Howard Stern and the Future of Media Censorship

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

It all got started with last year's brouhaha about media being"too big" or not diverse enough. Although citizens have access to unprecedentedamounts of news, information, and entertainment, many in Congressand at the FCC have been pushing for increased regulation of mediabusiness practices and ownership patterns. Some in Congress positthat there is an inverse relationship between media size andquality and would use economic regulation as a back-door way toregulate content.

Then, in the middle of this heated debate, Janet Jackson didsomething really stupid in front of a few million televisionviewers. The censorship hounds were unleashed. The FCC started handing out record fines andCongress whipped up legislation to greatly ramp up those fines. Byjust one vote, a Senate amendment was defeated in committee thatwould have imposed these rules and fines not just on broadcasters,but on cable and satellite providers too. Another Senate amendmentproposed the regulation of "excessive violence" in media.

Meanwhile, the threat of regulation led some broadcasters todump popular radio personalities, including Stern when ClearChannel dropped him from their stations. Most recently, the mediabashing game has taken on an even more disturbing aspect with thesuggestion by some Republicans, like House Energy and CommerceChairman Joe Barton (R-TX), that CBS News' newsgathering tacticsand motivations should be the subject of an official investigationin 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 underlyingbusiness practices or ownership structures of the press, thecontent the press airs, and even the newsgathering methods andpractices they utilize.

Anyone who cares about the First Amendment and press freedomshould find this chilling. Apparently, "Congress shall make no law"abridging press freedom now has several caveats. Congress shallmake no law unless they think media is "too big," orunless they don't like some of the content they see orhear, or unless they want to investigate newsgatheringpractices by a major news anchor many congressmen have longdespised.

Of course, many members of Congress have long expressed casualdisregard for the First Amendment. They have spent the last decade,for example, attempting to slap a variety of content controls onthe Internet. Luckily, the courts continue to slap downcongressional overreach when it comes to the 'Net, stressing howmuch different it is than older press outlets and technologies.

But, while we can be glad that the Internet and cyberspace havethus far been able to evade government controls, a two-tier systemof First Amendment freedom is neither sensible nor sustainable. Isit fair, for example, that CBS.com gets the gold standard of pressfreedom while CBS television or radio gets second-class citizenshiprights in terms of First Amendment protections? If CBS airs a clipon its stations deemed "indecent" by just three of the five FCCregulators, they get fined. But if that same clip is broadcast onthe 'Net, those regulators can't touch it. Does that make anysense?

At some point in the near future the illogical regulatorydistinction between traditional broadcast and new media will bechallenged in the courts. And Howard Stern may provide us with thetest case. He is jumping over to satellite radio with theexpectation 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 amendmentimposing traditional "indecency" fines and regulation on cable andsatellite networks, the fight is hardly over. Several members ofCongress such as Rep. Barton, have hinted that they will continueto push for traditional broadcast regulation to be imposed on new,subscriber-based media outlets. If Congress or the FCC try toimpose traditional content regulations on Stern-or anyone elseoperating in the new media space (cable, satellite or theInternet)-it will force the constitutional question of whethergovernment can and should censor the media in the future.

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