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William Bennett Lauds Clear Channel’s Indecency Actions
 The First Amendment, Public Pollution, and Cultural Air Ducts
By William J. Bennett
During the halftime show of the recent Super Bowl, more than 100 million Americans were treated to a gratuitous display of pornography, and there is now a renewed interest in how to keep our cultural air ducts safe. I'm no newcomer to the issue of trash and pollution in and on our airwaves—I've been talking and writing about this since the 1990s. Sen. Joe Lieberman (D-Conn.) and I used to give out "Silver Sewer Awards" to those who harm and degrade American popular culture.
But then, as now, I was not seeking censorship by the government. There is a distinction, after all, between censoring and censuring. To censor is to suppress, to engage in prior restraint by the government. To censure is to criticize and express disapproval. And, of course, Joe Lieberman and I were acting in our individual—rather than governmental—capacities. Recently, in light of shock jock Howard Stern's comments describing graphic sexual activity and his show's broadcast of the "n" word in an especially offensive context, Clear Channel removed Stern's show from six of their stations. That was private action taken by Clear Channel. That was not government censorship.
I have always believed that government is normally for deployments of last resort. It now appears to me, in light of the recent controversies, individuals and private decision-makers are taking their responsibility for the public airwaves seriously. When private decision-makers do this, the government does not have to, and should not. Yes, there are government-instituted fines for indecency and these fines are effective to be sure, and they probably should be increased. But more effective is the public response—and that response, once awakened, is why Clear Channel stopped airing Stern.
As a matter of First Amendment law, the U.S. Supreme Court has found that fines against indecency on the public airwaves are not unconstitutional. The court has rightly held that there is a hierarchy of speech to be protected. Political speech does and should receive the highest level of protection.
Other speech, depending on its subject matter, can be regulated—especially as to its time, place and manner. For example, there were very few calls in the liberal community—the community that typically raises the loudest cry against any kind of censorship—over the Federal Trade Commission's suit against R.J. Reynolds for using Joe Camel as a means of advertising tobacco products. The liberal community, in that case, understood what many of us had been saying for years: that imagery and words—for entertainment or for advertising—matter. They have a purpose and that purpose can be corrupting, not just to our mental and cultural health but also to our physical health. Our government is right to allow R.J. Reynolds to advertise its products, but it is also right to regulate how it advertises. Our children's brains should be seen as equally, if not more, important as their lungs.
Stern is free to speak—in graphic, pornographic and even racist terms. But our corporations are also free to refuse to give him a microphone to do so. And if they did not exercise their own self-restraint, they would possibly have to pay a price in fines. Such is the price to be paid for handling the public trust of the public airwaves; such is the price broadcasters pay for their license the government protects by not allowing other broadcasters to bleed into their frequency. There is no law, and should be no law, keeping Stern from speaking, but red light districts should not receive easements to trespass into our living rooms, our carpools, our school yards or onto Main Street.
Stern can say what he wants, however offensive, to live audiences in comedy clubs, on CDs and tapes. What he should not be able to do is put what is suitable in a night-time, adults-only, red-light district club on prime-time morning public air. That is the rational, free, standard agreed to by acts of Congress and society as a whole. Many stations have made the decision to keep airing him. That is their right. If the government acts with fines down the line, that, too, is the government's right—the people voted for representatives who made the laws that demarcate those fines, and those red lines.
Stern's broadcast did not meet the censorship of government, it met the decision and censure of station owners who acted—perhaps in advance of or before a government fine. But Clear Channel's actions are to be saluted—whether they acted for altruistic or financial reasons.
If we as a society bring back concepts such as shame as well as personal, civil and corporate responsibility, we will not need the law to impose fines. In other words, if we refuse our individual and corporate responsibility to be censurers, we cannot be surprised when we hear a call from censors.
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