Howard Stern and the FCC: Will Al Franken or Janeane Garofalo Be Next?

by Eric Jaffa

March 28, 2004

I like Howard Stern's radio show. I like it when Howard and Robin Quivers do the news near the end of each show. I like his celebrity interviews. I like his attitude.

Some liberals don't like Howard Stern. They may think it's degrading to women when he asks female guests to take off their shirts, or have other reasons.

Regardless, we should all be concerned about the current situation with the FCC.

On March 11, 2004, the House of Representatives passed the "Decency Enforcement Act of 2004," increasing indecency fines to $500,000 per incident. That bill is now in the Senate.

A week later, on March 18, 2004, the FCC fined Howard Stern's broadcast company the current maximum of $27,500 for a July 26, 2001show in which he discussed slang terms for sex acts. This was in spite of the fact that he doesn't use expletives on the air. As the Howard Stern website demonstrates, Oprah Winfrey discusses sexual slang on her show, without facing FCC fines. There is no clear law against discussing slang, but the FCC is using a definition of indecency as "patently offensive sexual or excretory references" to go after Howard Stern.

If the "Decency Enforcement Act" becomes law, its devastating fines for discussing sex may drive Howard Stern off the air. What is more, he may not be the last.

Al Franken and Janeane Garofalo will each soon have shows on a new liberal radio network "Air America," which starts broadcasting on March 31, 2004.

Al Franken's show may include sex humor. In a recent New York Times profile of Al Franken, Russell Shorto writes, "Franken unleashes a hilarious, X-rated Strom Thurmond impersonation that has been playing in his head and that he desperately wants to make work: 'I want to do Thurmond a lot, from the grave or wherever he is. And I want him to be more honest in death than in life. I mean, here's a guy who basically said, 'I'll fight to the death for segregation' and had a daughter who was black.'"

Janeane Garofalo's show may have occasional sex humor, too, judging from her 1999 standup act, in which she asked, "Have you ever been having sex and wanted to punch the guy in the face and shout, 'Stop fucking me!?'"

No, Garofalo won't say "fuck" on the air, but neither does Howard Stern. FCC commissioners define indecency as what they find "patently offensive." FCC Chairman Michael Powell (son of Secretary of State Colin Powell) may find something Janeane Garofalo says on her new radio show to be "patently offensive."

Conservative radio shows which sometimes discuss sex may also be punished by the FCC, if the FCC decides it wants to appear even-handed.

Both liberals and conservatives who care about free speech and want to protect their favorite radio personalities should try to stop the "Decency Enforcement Act of 2004" from passing the Senate.

The FCC doesn't deserve the arbitrary power to decide that when one person talks about sex on the air it's ok, and when another person talks about sex, devastating fines should force that person off the air. No one should have that much power.

What can we do?

Firstly, use this form at the ACLU website to fax or email your Senators:
fax or email for free speech

Secondly, please call both your Senators' offices, with the toll-free number:
1-800-839-5276

Sample words for the phone call:

Hello, may I speak with the office of Senator ________?
(call transferred)
Hello, may I speak with someone about the FCC?
(call transferred)
Hello, I would like to leave a message for Senator ________ that free speech is extremely important, and so please vote against increasing FCC fines.