Protect thy Virgin Ear

Apr 282004
Authors: Joe Marshall

Shock Jocks across America might soon receive a shocker from the


Legislation is currently under consideration in the U.S. Senate

that would raise the maximum penalties for public broadcasts deemed

indecent or profane by the Federal Communications Commission from

$27,500 to $275,000 per incident. A similar measure passed through

the House March 11 by a whopping 391-22-1 measure.

Both pieces of legislation have received the pre-emptive

approval of the Bush administration, and free-speech advocates and

elements of the entertainment industry are roundly criticizing

both. Upon giving the topic my own personal once-over, I found out

this legislation did not infringe upon my First Amendment rights.

This realization left me tickled pink.

The subject first aroused my emotions when I heard an

advertisement on 99.5 FM (KQMT) calling on listeners to contact

their representatives and the FCC to voice their displeasure of the

federal legislation. Whereas I am an ardent and occasionally

athletic supporter of First Amendment advocates such as the

American Civil Liberties Union, I picked up the subject and spent a

long night exploring its intricacies. By the time I went to sleep I

felt a little used.

The radio ad and the Web site it promotes,,

claim the current law and the proposed increase of the maximum

penalty will affect both the lewd-lipped jockey and music variety.

On the surface, this could theoretically be a true statement;

however, a brief investigation found this claim to be


The message on the Web site is both misleading and incomplete.

The statement concedes how the legislation seeks to zip the lips of

so-called “shock jocks,” but in doing so “playing certain songs can

also result in significant penalties.” While this may appear to be

a possibility, it never happens because of how the current law is


Thanks to the 1973 Supreme Court case Miller v. California, the

murky realm of what is or is not obscene/indecent is navigated by a

three-tiered test of questionable content. First, someone needs to

find the content objectionable.

Next, the “material must depict or describe, in a patently

offensive way, sexual conduct specifically defined by applicable

law.” It is this clause that is the basis for George Carlin’s

famous skit about the seven dirty words. Yes, these words do appear

in many a song. No, I am not going to list them here.

Test three is what largely exempts music from federal penalties.

It states, “The material, taken as a whole, must lack serious

literary, artistic, political or scientific value.” Music, even bad

music, is possessed of some literary and artistic value. “I Touch

Myself” by the Divinyls may never be a classic, but it still made

it on the radio. also states how “Many songs that you’ve

enjoyed on the radio for years now can result in a $27,500 fine

each time they are played.” Now? What about last week? These

regulations, and the $27,500 fine, have been on the books for


When I asked Marla Stone, the afternoon disc jockey for 94.3 FM

(KKQZ), if she had ever heard of a station being fined for playing

song lyrics, her answer was “no.” She went on to say how in her 17

years in radio, she was only fined once and it was when a caller

was threatening suicide.

Stone supports the new legislation. “I personally think its

about time we raised the bar,” she told me, adding that DJs who

can’t attract listeners except via vulgarity lack real talent.

Cal Hall, the general manager at KKQZ, was happy to agree with

Stone. “Just because you can say something,” Hall explained,

“doesn’t mean you should say something.” Adding that he and his

station have an obligation to provide a quality product to the

listener, he emphasized the importance of quality while degrading

the value of shock.

It would be foolish, however, to say nobody enjoys shock radio.

Howard Stern and other edgy DJs can still say and do whatever they

want, free from government persecution … on the ever-growing

medium of satellite radio. The FCC manages public airwaves because

they are public property. Just as HBO can carry more explicit

programming like the Sopranos, Stern could become the backbone of

XM or Siruis.

This federal legislation is not designed or intended to forever

banish “Closer” by Nine Inch Nails or “Baby Got Back” by Sir

Mix-A-Lot from the public airwaves.

The purpose of the new fine increases is to tie the tongue of

cunning linguists who air explicit content over public airwaves. I

do, however, enjoy cunning linguists on occasion and therefore will

be subscribing to XM soon. And the Spice Channel.

Joe is a senior majoring in history, and yes, he did win the

Z94.3 “Drive at Five” on April 4.

 Posted by at 5:00 pm

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