The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Friday, January 16, 2004

Free speech in America: Imus, Stern, Bono...

Talk radio host Don Imus is, I'd guess, an unknown to those outside the US, as compared to Rush Limbaugh, Howard Stern and (to a lesser extent) Gordon Liddy.

But he is no stranger to controversy and, it appears, something of a hate figure in certain circles - as, most notably, TomPaine, who at one stage had quite a campaign going against the guy [1].

I then wonder about the role of the FCC: surely if Imus is regularly using offensive material [2], they can step in and order him, or the stations that broadcast him off the air. Stern, for example, has been the object of FCC action several times.

The difference, I perceive, is that Stern's shtick is sex, whereas Imus's is politics, of a sort.

The only source - so far as I can tell - for FCC censorship of radio material is 18 USC 1464 [3], which says
Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.

The corresponding FCC Regulation is 47 CFR 73.3999; under the heading Enforcement of 18 U.S.C. 1464 (restrictions on the transmission of obscene and indecent material), it provides that
(a) No licensee of a radio or television broadcast station shall broadcast any material which is obscene.

(b) No licensee of a radio or television broadcast station shall broadcast on any day between 6 a.m. and 10 p.m. any material which is indecent.

(No attempt is made to deal with profane material.)

And the leading case is FCC v Pacifica Foundation (438 US 726 (1978)).

None of that stuff affects politics. Confirmation of the limits comes in the FCC ruling (PDF) of October 3 2003 in the Golden Globes case: during the ceremony of January 2003,
the performer Bono uttered the phrase "this is really, really, fucking brilliant," or "this is fucking great."

On the question of indecency, the ruling quotes the FCC guidelines, which say that, to be questionable as being indecent,
material must describe or depict sexual or excretory organs or activities

Which Bono's outburst certainly didn't.

Quite how anyone thought the decision could be any different, giving the content of the rule, I'm not clear - FCC Chairman is apparently looking for the body to reverse their decision [4]. And (Election Alert!!!) two hacks from the House have introduced a bill, HR 3687 [5], which adds a second element to 18 USC 1464, as follows:
`(b) As used in this section, the term `profane', used with respect to language, includes the words `shit', `piss', `fuck', `cunt', `asshole', and the phrases `cock sucker', `mother fucker', and `ass hole', compound use (including hyphenated compounds) of such words and phrases with each other or with other words or phrases, and other grammatical forms of such words and phrases (including verb, adjective, gerund, participle, and infinitive forms).'.

Is it constitutional? Who gives a [select invective from the Congressionally suggested list]!

As far as Imus's neck of the shock-jock woods is concerned, however, it seems he's fully protected from FCC intervention by the First Amendment. The cross-burning case of RAV v St Paul (505 US 377 (1992)) is, I believe, substantially still good law [6].

I surmise, therefore, that the only thing holding Imus back from a full-blown Bilboesque diatribe against his favorite targets is the potential pressure from advertisers on those broadcasters who use his stuff.

By contrast, one can test the temperature of free speech this side of the pond with a squint at this extract from the BBC Producer's Guidelines.

This weekend, the BBC is broadcasting John Cage's infamous silent work, 4'33". I had not realised that the (apocryphal?) origin of the timescale of the work is that there is one second for every minus degree centigrade (or Celsius) that is absolute zero (ie, 0° Kelvin): -273°C.

And that, pretty much, is the temperature that BBC management likes its speech!

(With the Hutton Report pending, the Robert Kilroy-Silk nonsense, and more, one can almost sympathise...)

  1. There is, for example, an apparently notorious extract from a Sixty Minutes from 1998 with Mike Wallace interviewing Imus and his sidekicks:
    Wallace: It's sophomoric and adolescent. It is smart as the dickens. It's on top of politics. It's dirty and sometimes racist.

    Imus: Give me an example -- give me one example of one racist incident.

    Wallace: You told Tom Addison, the producer, in your car, coming home, that Bernard McGuirk is there to do nigger jokes.

    Imus: Well, I've nev -- I never use that word.

    Wallace: Tom.

    Addison: I'm right here.

    Imus: Did I use that word?

    Addison: I recall you using that word.

    Imus: Oh, OK. Well, then I used that word...

  2. Material vastly more offensive than that used by, say, Gregg Easterbrook in his - certainly notorious - Kill Bill review (last mentioned here on January 9).

  3. §326 of the Communications Act of 1934.

    And - suggestion for popular name? What about the 'Blame Canada' Act? Well, it's sure to make South Park in one form or another, surely?

  4. Why blow a blood vessel three months after the decision? I smell a rat...

  5. Yay! A grownup media page actually gives the number of a bill? Christmas comes late this year...

  6. While URLs are to hand, note a couple of articles: from Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny (1997) and The Case of the Missing Amendments: R.A.V. v. City of St. Paul (by Akhil Reed Amar - 1992) .

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