Radio Free America

What we are doing here today is to correct an altogether too narrow interpretation of decency.

—FCC Chairman Dennis Patrick

On April 16, 1987, the Federal Communications Commission changed the rules of the game. Henceforth, when disc jockeys mention sex, even through innuendo, double-entendre or playful language, they risk censure by the FCC. They may no longer talk about sex with impunity, even if they avoid the famous seven dirty words banned in a 1976 FCC ruling (shit, piss, fuck, cunt, cocksucker, motherfucker and tits). Now the 1987 FCC has created a new yardstick, generic indecency. In the future, the FCC will enforce a definition of indecency as being "language or material that depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs."

Heralding this new era, the FCC issued warnings to a New York talk-show host, Howard Stern, for indulging in "shock radio" during a time when children might be listening, and to a radio station at the University of California at Santa Barbara for playing a ten-year-old song called Makin' Bacon. It also handed over to the Justice Department for further action transcripts of a discussion of gay sex and excerpts from a play called Jerker, broadcast by a Los Angeles station, KPFK.

One would think that this broad definition, with its far-reaching consequences, could come about only with the wide support of the public. Wrong. Polls show that the majority of Americans are against the curtailment of First Amendment rights.

What, then, spurred the Government to broaden its interpretation of indecency? The answer: a very few complaints. Unfortunately, those complaints happened to coincide with the moral stance of the commissioners.

In July 1986, Nathan W. Post wrote a letter to Tipper Gore, champion of Parents' Music Resource Center. Gore passed the letter along to the FCC.

Last Saturday evening, I sat listening to the radio ... KCSB, 91.9. The announcer was Eric Stone. Eric plays heavy metal, punk and what I'll term raunch. He docs a show from 9:30 to midnight titled Strictly Disco.... Eric Stone ... will generally throw in at least two extremely vulgar, sexually explicit songs per show. The others vary in shade and degree. Many are liberally sprinkled with the word fuck or one of a number of variations. ... If the use of a few expletives were all I had to contend with, then I wouldn't have bothered writing a letter. The problem is that a number of these tunes go far beyond the occasional obscenity.

If these people were listening to these tunes in their ... homes, it wouldn't matter much, either, but this is broadcast over the public airwaves and available to all ages. ...

Perhaps you are wondering about the kind of lyrics I'm referring to. Well, this past Saturday night, they included:

"Come here, baby, make it quick / Kneel down there and suck on my dick / Makin' bacon is on my mind / Makin' bacon is on my mind / Turn 'round, baby; let me take you from behind. ..."

Some people are shocked by lyrics many of us find amusing. They would no doubt stop us from listening to such lyrics in the privacy of our homes. They haven't accomplished that—yet. They want the airwaves to be as clean as PTL Club's broadcasts. They're working on it. Their contemporary community standards are those of Salem, Massachusetts, circa the witch trials.

In September 1986, the FCC received another letter, this one from the Reverend Larry W. Poland.

On Sunday evening, August 31, 1986, I was driving home from the airport here in the Los Angeles area when my automatic-search radio picked up station KPFK, 90.7 FM. The program being aired between ten P.M. and 11 P.M. was I Am Are You. It was featuring excerpts from a play the broadcasters said was being performed in the Los Angeles area called Jerker. I was initially stunned when the individuals reading the script of the play used the words fuck and fucking freely but was totally unprepared for the content that followed. The hour was filled with dramatic reading of sexual fantasies between homosexual men. ... I have six children. If one of them had tuned in to KPFK at the time that I did, they could have lost in one hour the precious innocence I as a father work so hard to protect year in and year out. This isn't narrowcasting we are talking about, this is broadcasting, broad enough to be picked up by every child with a five-dollar transistor radio.

Frankly, that hurts and angers me! It violates the values and sanctity of my home, my family and my faith!

God's hand, in the form of the autoscan, subjected the Reverend Mr. Poland to an hour of gay dialog. He could have changed the station or turned off the radio; instead, he cruised the highways, taking notes of the broadcast.

Poland also protested announcements in simple, everyday language of events sponsored by gay groups. It was not the language but, it seems, the mere existence of such programing that he protested. Eminently concerned with the violation of his rights, he has no concern for the violation of others' rights.

"The broadcast was devoted to sensuality in the age of AIDS," said David Salnicker, the executive director of the Pacifica Foundation, which owns KPFK. "It was broadcast at night, following a disclaimer that warned that some listeners might find the material objectionable. If we can't do a show about AIDS in language everyone understands, where are we? The play in question has never been charged with obscenity in Los Angeles, but we have been re ferred to the Justice Department for broadcasting obscenity. The language was no different from what you hear on late-night sex-therapy shows. We now find that what was permissible is now literally a crime."

Two letters sent to the FCC were from a familiar person. The Reverend Donald E. Wildmon of Tupelo, Mississippi, complained about WYSP's Howard Stern Show. The minister from Tupelo must have incredible reception on his living-room radio: When he's not listening to God, he can pick up shows from halfway across the country. He sent the FCC tapes from shows that he had found offensive. The seven-dirty-words ruling was not enough to pacify Wildmon; his hit list included penis, prostate, tampon, hookers, cock, nipples, orgasm, kissing ass, K-Y jelly and breasts.

Should mentioning breasts, whether facetiously or in a graphic discussion of cancer, be against the law?

A New York group called Morality in Media suggested to Mary V. Keeley, a concerned mother, that she write a letter to the FCC complaining about Stern, which she did: "Despite the claims of this station that they are now appealing to a more mature audience, I personally know of many young people who tune in to this station every day. When I wrote and complained about the programing to the station manager, his response was that parents should exercise restraint over any material that we feel is inappropriate. This is difficult due to the use of headphones by the kids, and I would not ... have known about ... Stern if I had not accidentally tuned in one morning."

She enclosed a tape of Stern conversing with his assistant, Susan:

Stern: Hey, Susan, honey, remember the song Does Your Chewing Gum Lose Its Flavor on the Bedpost Overnight? Here's my version. You ready?

Susan: No. No, no, no.

Stern: "Does Berzerkowitz have a party on the bedpost every night? / When her boyfriend says, 'Don't do it,' does she mount right up in spite? / Does she grin and moan with passion and yell, 'Hi-ho, Silberclite'?/ Does Berzerkowitz have a party on the bedpost every night?"

It's not exactly the height of Western civilization, but neither does it present a danger to society. To bedposts, maybe.

The letters read as though the authors (concluded on page 46)Whose Living Room is This, Anyway(continued from page 45) had taken the same course in How to Complain to the FCC. It's postgraduate work, after you complete How to Complain to 7-Eleven and How to Coerce Dr Pepper. First, stress that you are an average citizen who would never listen to shock radio except by horrible accident. And imply that your shock incapacitated you, forcing you to listen almost against your will to the entire show, while tape-recording the highlights. Next, stress that you are concerned about the effect of fringe language on innocent children. Imply that your own children are model creatures who have never uttered a four-letter word and would not know what one meant. Ask for sympathy by stressing that technology, in the form of headphones or transistor radios, makes your task as a parent impossible. You need help.

The shocking fact of the matter is that apparently on the basis of those five letters, the FCC decided to expand its definition of obscenity.

At the heart of those complaints is the question "Whose living room is this, anyway?" Wildmon seems to argue that improper broadcasting is an invasion of his privacy, that even a chance hearing of the word breast would destroy a family member. Well, who's to say? Maybe he knows his family better than we do. How fragile their values are if mere contact with a conflicting idea will corrode them. In 1978, the Supreme Court bought the notion that broadcasters had to behave as if their material were being heard in the drawing room of someone as pristine, puritanical and easily offended as the Reverend Mr. Wildmon. In the seven-dirty-words ruling, the Court argued that broadcasting should follow the tastes of the weakest links in society. Justice William Brennan, one of the dissenting Justices, pointed out the flaw in this position:

Without question, the privacy interests of an individual in his home are substantial and deserving of significant protection. In finding these interests sufficient to justify the content regulation of protected speech, however, the Court commits two errors. First, it misconceives the nature of the privacy interests involved where an individual voluntarily chooses to admit radio communications into his home. Second, it ignores the constitutionally protected interests of both those who wish to transmit and those who desire to receive broadcasts that many—including the FCC and this Court—might find offensive. ...

We don't want to live in the Reverend Mr. Wildmon's living room. And we don't particularly want to live in a country where the politics of complaint dictate what we can listen to or see or read. America is diverse and, theoretically, tolerant of that diversity. People who enjoy candid conversation about sex or songs about a lusty love style have just been sent by the FCC to their room without supper.

We agree with Dennis Patrick's attempt to correct the interpretation of decency, but we consider it indecent that any faction of society can dictate to any other faction what it may or may not listen to on the public airwaves. Let the market place determine what is acceptable, not five commissioners in Washington or one minister in Tupelo. Generic freedom is not what the founding fathers had in mind.

Whose living room is this, anyway?

The Legal Low-Down

Censorship and the FCC:

The FCC's decision to expand the seven-dirty-words ruling alarms broadcasters and listeners alike. Although allegedly aimed at "shock radio" shows such as the Howard Stem program, originating in New York and simulcast in Philadelphia, it has far-reaching effects on radio programing of all kinds. To find out the legal implications of the ruling, we talked with the American Civil Liberties Union's legislative counsel, Barry Lynn.

Playboy: DO you think that the complainants have a valid point in taking programs such as these to task?

Lynn: I've listened to Howard Stern and I personally find his program offensive. But my radio dial is not welded to Stern's station. Unfortunately, some people don't seem to realize that if you do not like what you're hearing, there are dozens of alternatives. And they don't seem to realize that the purpose of the FCC is not to be the national arbiter of good taste.

Playboy: Diane Killory, FCC general counsel, maintains thai the change in policy is warranted because there is no way to restrict children from hearing these broadcasts.

Lynn: There are plenty of programs on the radio for my eight-year-old not to hear. But in a free society, we cannot restrict the adult population of the country to hearing only those things suitable for my child. The policing of what children hear must be the responsibility of parents and not the responsibility of a national nanny in the form of the FCC.

Playboy: But parents can't possibly police everything their children hear.

Lynn: No, parents can't have control all the time. But children who hear a Howard Stern broadcast are not likely to have their lives shattered because of it. This material does not have magical qualities that will subvert values taught by the family, schools, churches or synagogues. People overemphasize the impact of hearing what they consider untasteful or indecent remarks. Are these programs going to corrupt our children? I'm sure they won't.

Playboy: The FCC claims to receive 20,000 complaints each year about indecent programing. Why, then, has it decided this year to revise its guidelines?

Lynn: The FCC has been perceived by the religious right as doing nothing about sexually salacious material. The FCC issued the new ruling because it's been under pressure—particularly since the Meese-commission report—to do something procensorship. I believe that the pressure is almost entirely from the religious right.

Playboy: Americans are very much anticensorship. How does the FCC justify being procensorship?

Lynn: The FCC is now packed with censorship-minded people, people who like to scrutinize the American airwaves for any allegedly dirty, sexual material. They use the complaints of a few people as an excuse for acting in a censorial way against radio and television broadcasters—which has, I think, been their inclination for some time. Under the law, the FCC's obligation is to determine community standards—which it did not do in the Stern case. In fact, the FCC tile about the Stern show contains only 35 complaints prior to this inquiry. And that's from a population in Philadelphia of 1,700,000 people. These figures make it very difficult to argue that the Stern program violates contemporary community standards.

Playboy: Is the FCC going to start issuing fines and pulling licenses, or has it published the new standards merely to bring stations into line?

Lynn: The main purpose of this action was to intimidate broadcasters, who are not always the most courageous people in town. I don't believe that there will be more than a handful of efforts by the FCC, if that many, to utilize this new standard. But the damage has already been done. With all the hoopla surrounding this decision, broadcasters have already cut back and will continue to cut back on their willingness to be frank about sex. whether it's in the context of rock music, sex therapy, disc jockeys, presentations of radio plays or political commentary. This is intimidation. It's just like the Meese commission's sending letters to convenience stores saying, "We're not sure what we're going to do, but we want to put you people on notice: We think that you're engaged in some dirty enterprise." (concluded on page 46)The Legal Low-Down(continued from page 45) Sometimes, intimidation works better than lawsuits, particularly when the intimidation comes from a powerful organization such as the FCC.

Playboy: How does this new ruling differ from the old seven-dirty-words ruling?

Lynn: The seven-dirty-words ruling was a terrible decision in its own right; but as bad as that decision was, there was nothing to indicate in it that anything other than a direct use of those particular seven words would constitute actionable indecency. So the FCC has expanded that ruling to cover innuendo, suggestiveness, double-entendre—things that are certainly well within constitutional protection.

Playboy: Under the seven-dirty-words ruling, a station could broadcast "adult" programs after ten P.M. and before seven A.M., times when children probably were not listening. Is this still true?

Lynn: Under the peculiar reasoning of the new ruling, it seems that no time is absolutely safe except, possibly, really graveyard hours, literally in the middle of the night, for there is no time when children might not conceivably be listening; there are always children with insomnia!

Playboy: Is there any way to combat the religious right's crusade for censorship?

Lynn: There are ways to combat it. People can support broadcasters' right to air controversial material in two ways: first, by writing letters to individual stations urging them to keep doing what they have been doing, even if that includes frank sexual discussions, and second, by writing to the FCC expressing displeasure with the new ruling. It doesn't hurt to build an FCC file of letters from people who don't approve of the decision. That helps buttress the argument that it has totally misrepresented community standards.

A Sexual Bill of Rights

It is the 2OOth anniversary of the United States Constitution and, given the conservative temperature of the country, I feel that it's appropriate that we consider adding a parallel version of the Bill of Rights—the Sexual Bill of Rights:

We, the people of the human race, in order to form more perfect unions, establish justice and ensure the pursuit of happiness, hold these truths to be self-evident:

I. There shall be no law infringing on any private sexual act between consenting adults.

II. There shall be no law restricting sexual preference for private relations between adults.

III. There shall be no law restricting housing or employment, or any public or private benefit, because of sexual preference or marital status.

IV. There shall be no law restricting the possession of visual imagery of nudity or sexuality (except insofar as children are depicted). Display or sale of sexual depictions may be restricted only as appropriate to the age of potential purchasers.

V. There shall be no law restricting information about, or access to, birth control.

VI. There shall be no law restricting information about abortion nor any restriction on access to abortion.

VII. There shall be no law criminalizing consenting sexual behavior before or outside of marriage.

VIII. There shall be a uniform age of consent (16); and public sex education shall be freely available, as appropriate to the age of each person.

IX. There shall be no law restricting the sale or possession of sexual accessories by adults.

X. Any enforcement of sexual limits not specified in this Bill of Rights shall not be assumed by Federal, religious or self-appointed authorities.

J. Gordon, Atlanta, Georgia