The FCC is treading too close to the Constitution

If it weren’t for Howard Stern, I might not know what a “blumpkin” is. If it weren’t for… If it weren’t for Howard Stern, I might not know what a “blumpkin” is. If it weren’t for Oprah Winfrey, I definitely wouldn’t know what a “tossed salad” is. And if it weren’t for the Federal Communications Commission, I wouldn’t care about either. But with the growing momentum behind the Broadcast Decency Enforcement Act of 2004, all parties have suddenly become relevant. The government has set its election-year sights on indecency, and prepares to fire — doing so while dangerously close to the Constitution.

A few weeks ago, the FCC fined Howard Stern $27,500 for a July 26, 2001 broadcast in which he defined several slang terms for sexual acts. Among these were “blumpkin,” “balloon knot,” and “David Copperfield.” Shortly after Stern’s fine was made public, Jimmy Kimmel responded on his late night show, “Jimmy Kimmel Live.”

“It’s all nonsense,” Kimmel said. “It’s all a knee-jerk reaction to Janet Jackson pulling her shirt open at the Super Bowl. They go after stuff they don’t even listen to and they don’t even watch to make people who write letters happy, but do they go after the filthiest broadcaster in American television? No. Untouchable. They leave her alone. And of course I’m talking about Oprah.”

Kimmel went on to play a clip from The Oprah Winfrey Show in which Winfrey and a guest discuss sexual slang including terms such as “tossed salad” and “rainbow party.” The content from the two shows seemed remarkably similar, prompting Stern to play the same Winfrey clip on his show the following morning, meeting resistance from his fine-shy station manager.

“We want them to fine us for this,” Stern said. “Because if they fine us for indecency, then they have to fine Oprah. And if they fine Oprah, then the whole game is up.”

But Winfrey remains un-fined while Stern believes his days in radio are numbered. Ever the martyr — he once released an album titled Crucified by the FCC which depicted him carrying a cross — Stern sees this recent government intervention as a concerted effort to get him off the air. He had been an active supporter of the war in Iraq since it began, but recently changed his tune, and was later dropped by Clear Channel Entertainment, which has strong ties to the Bush administration.

“I’ll tell you what,” Stern said in a recent broadcast. “I will get George W. Bush probably out of office. My fans are energized, 18-to-24-year-old white males, who sometimes vote, and sometimes they don’t. They just need a cause and their cause is me.”

Divided as we are on most important issues, I like Howard Stern. And as a member of his key demographic, my opinion is apparently important. Stern’s gotten me through many a dull morning of summer construction work and for that I’m grateful. Whether or not he’s as powerful and persecuted as he believes, I’m not sure, but I do think his recent free speech crusade is justified.

Many of Stern’s shows center on crude humor and naked porn stars, which are hardly necessary or even beneficial elements of public discourse. If the FCC were to can Stern’s show, I think society would move along as before, and radio would indeed be cleaner. But, that being said, there is something profoundly indecent about a piece of legislation like the Broadcast Decency Enforcement Act. While the FCC is not responsible for clearly stating the parameters of indecency, this Act will give them free rein to exact fines of up to $500,000 when they decide someone has violated their vagaries. It’s like issuing speeding tickets without posting limits.

If this act passes, as it likely will, it will be a drastic setback for free speech. And interestingly, the debate has become nonpartisan in both camps. The House of Representatives approved the Act by a landslide vote of 391-22, and things are predicted to go just as smoothly in the Senate. For the opposition, Stern has received strong support from unlikely corners:

“I am in the free speech business, my friends. I couldn’t survive without it,” said Rush Limbaugh in a recent broadcast. “It’s one thing for a company to determine if they are going to be party to [indecency]. It’s another thing for the government to do it.”

If people are angry enough about the material presented by Howard Stern — and, by extension, Oprah Winfrey — they have the power, as consumers, to challenge it. But it is vitally important that government stay out of this business of shutting people up.

As for blumpkins and tossed salads, you’ll have to do your own research. I could define them for you here, but I certainly don’t have $500,000.

E-mail Eric Miller at