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Turn the dial: shock radio and freedom of speech
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center

Some things apparently are too shocking even for shock radio.

Infinity Broadcasting recently fired radio’s notorious "Opie and Anthony" for broadcasting a couple allegedly having sex in New York’s St. Patrick’s Cathedral. The broadcast was part of an ongoing contest in which Greg "Opie" Hughes and Anthony Cumia chronicled public sex acts by listeners. Public reaction to the stunt was immediate and angry.

Leading the charge was Bill Donohue, president of the Catholic League for Religious and Civil Rights. Describing "a deliberate pattern of indecency, now reaching an apex by the deliberate occurrence of a crime perpetrated in a house of worship," Donahue called for the revocation of WNEW’s license and a substantial fine for Infinity Broadcasting.

The Federal Communication Commission swiftly condemned the stunt. FCC Chairman Michael Powell said he was "deeply disturbed" about the broadcast. Commissioner Michael J. Copps was even more vocal, saying that if the radio station orchestrated the event, "this commission should consider the strongest enforcement possible against this station, up to and including revocation."

Now there’s widespread industry speculation that so-called "shock jocks" will tone down their acts, and that we may be entering an era of more restrained programming. If this is the case, it won’t be just because the FCC is rattling sabers. The agency already has a history of imposing fines for indecent content broadcast during hours in which children might be listening:

  • WKQX in Chicago was fined $7,000 after offering a reward for killing a pedophile.
  • WNEX in New York was fined $21,000 for a segment of the "Opie and Anthony" show in which a 17-year-old caller was asked to perform lewd acts.
  • KNDD in Seattle was fined $14,000 for a discussion of whether penises can lift heavy objects.
  • KEGL in Fort Worth was fined $14,000 for explicit discussion of bisexuality and masturbation.

The niche nature of radio encourages some of the more outrageous content, in contrast to broad-based media like newspapers that may find it financially advantageous to offend no one.

Sure, newspapers generate their share of controversy, but they rarely use the right of free press to print overtly sexual content. That’s part professional restraint and part good business. The community at large expects its newspaper to maintain certain standards and not clash with breakfast.

Few of us have the same expectation of radio. In any given community, there are dozens of stations, reflecting a variety of genres. Although broadcast stations are licensed and don’t have as much First Amendment freedom as print publications, shock radio stations can find a profitable niche by broadcasting explicit and off-color material.

For radio stations and broadcast companies, it’s a matter of economics. If you’re building an audience and making money, a fine is not much of a deterrent.

In truth, the FCC will never be the key to higher radio broadcast standards. The FCC can’t possibly monitor all the airwaves; they only respond to specific listener complaints. The FCC also has a spotty track record in determining what’s truly indecent and what, in fact, is protected by the First Amendment.

The "Opie and Anthony" case stands out from the pack of radio outrages for three reasons:

  1. The broadcasters apparently encouraged people to break the law by engaging in lewd acts in a public place. Criminal conduct is not free speech.
  2. The public used its free-speech rights to denounce the owners of the radio station in a highly visible way. It’s one thing to impose a fine; it’s quite another to give an entire corporation a black eye.
  3. Boston Beer, the sponsor of the "sex contest," was threatened with a boycott of their Samuel Adams beer in Boston. In effect, the public told the beer company that you can’t underwrite offensive radio and then not bear any responsibility for it.

Radio can be a wonderful vehicle for free expression. It is truly a marketplace of ideas, and some of those ideas are provocative and unpalatable. If we’re troubled by such speech, we’re free to turn the dial.

In the end, though, one of the best remedies for ugly on-air content is the kind of free speech that challenges broadcast corporations and sponsors to take responsibility for their use of the public airwaves. Sometimes the people without microphones have the loudest voices.


Shock jocks pulled off air as FCC considers sanctions against station

Opie and Anthony draw ire after radio show broadcasts alleged sexual encounter inside New York cathedral. 08.21.02

FCC proposes fines for shock jocks' sex segments
Four commissioners vote for monetary penalties in separate incidents in New York, Washington; fifth says agency should have gone after stations' licenses. 10.03.03

FCC refuses to censor satellite radio
California broadcaster had asked agency to force subscription services to abide by indecency rules similar to those governing stations that use public airwaves. 12.16.04

Family wants radio station off air after water-contest death
Meanwhile, California sheriff investigates circumstances surrounding death of Jennifer Lea Strange; lawyers for family threaten to file wrongful-death suit against KDND. 01.23.07

CBS fires Don Imus from radio show
Earlier, Democratic presidential candidate Barack Obama called for talk-show host's ouster. 04.12.07

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