Last year, in a letter to three radio stations that aired the “Howard Stern Show,” the Federal Communications Commission seemed to acknowledge that “discussions of penis size are not per se prohibited.” Still, the commission said, when such discussions are presented as part of a show “dwelling on sexual matters ... in a pandering and titillating fashion,” they are patently offensive, and are therefore indecent-and therefore prohibited. So the FCC fined ;he stations $2,000 each.

The commission, which until now has limited this sort of analysis to daytime and early-evening programming, is seeking authority to apply its expertise in such matters to all radio and TV broadcasts. In May, the U.S. Court of Appeals for the D.C. Circuit overturned a 1988 law requiring the commission to enforce a 24- hour ban on broadcast indecency, and the FCC is appealing the decision. So the Supreme Court may soon be considering what bearing the First Amendment has on discussions of penis size.

Some say it has none. “The basic mission of the First Amendment, for most Americans, is to ensure robust political speech,” says Bruce Fein, a former FCC general counsel. “The enforcement problem is a difficult one, but, by and large, who cares whether they get it right or wrong? You’re dealing with things that aren’t essential to the First Amendment mission anyway.”

But even those who take this view of the First Amendment should be troubled by the vagueness and subjectivity of the FCC’s, indecency standard. Contrary to the popular impression, “shock jocks” like Howard Stem represent a minority of those fined by the FCC for broadcast indecency. Moreover, the regulation of broadcast speech does its real damage at the margins, by discouraging broadcasters from airing controversial material. Most broadcasters are not willing to risk getting fined or losing their licenses in order to test the limits. It turns out that it’s not as easy to separate indecency from political speech as Fein implies.

The distinction became a lot more difficult in 1987, when the FCC broadened its approach to enforcing a federal law forbidding the transmission of “any obscene, indecent, or profane language by means of radio communication.” Until then, the commission’s staff had relied on a narrow reading of FCC v. Pacifica Foundation, the 1978 Supreme Court decision upholding the FCC’s authority to regulate broadcast indecency. Pacifica involved a mid-afternoon broadcast of George Carlin’s now famous “Filthy Words” monologue, which featured the repeated use of seven “words you couldn’t say-on the public airwaves, the ones you definitely wouldn’t say, ever.” For nine years after Pacifica, the FCC made it clear that broadcasters would be safe if they stayed away from the seven dirty words.

In 1986, however, the FCC received complaints about three broadcasts-including Howard Stern’s show-that struck the commissioners as indecent even though the material did not meet the “seven dirty words” test. So the commission reverted to the generic definition of indecency it had set forth in Pacifica: “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, [broadcast] at times of when there is a reasonable risk that children may be in the audience.

The FCC emphasized that innuendo and double-entendre, the staples of shows like Howard Stem’s, could be deemed indecent. Since the Supreme Court had stressed that “context is all-important,’’ the commission qualified its definition; to be indecent, a broadcast had to be patently offensive “in context.”

The FCC also said that “contemporary community standards for the broadcast medium” would be based on the perspective of the average listener or viewer. So indecency is what the FCC thinks the average person thinks it is.

For broadcasters, this standard is hard to get a handle on. Because “context” is crucial to the FCC’s definition, and because the commission fears accusations of prior restraint, it cannot give broadcasters clear, specific guidelines that would reliably tell them how far they can go. Instead, it judges broadcasts after the fact, on a case-by-case basis.

The problem of predicting what the FCC will deem indecent is not limited to broadcasters of the Howard Stern school. Tom Leykis, for example, hosts a fairly conventional talk show on KFI-AM in Los Angeles. He says trying to comply with the indecency standard is like driving on a highway with no posted speed limit. A cop pulls you over and gives you a ticket. “You say, ‘How can you give me a ticket .f I didn’t know how fast I was supposed to go?’ And he says, ‘You’re just sup- posed to know.’ ’’

Furthermore , serious purpose, whether artistic, social, or political, does not necessarily redeem a broadcast. Indeed, both the FCC and the Supreme Court have indicated that, unlike obscenity, merely indecent material is not “without merit”; it may simply be inappropriate for children. Hence, in 1987 the FCC found excerpts from Jerker, a play in which two gay men discuss their sexual fantasies over the telephone, to be indecent. Jerker is certainly raunchy, but it’s also a critically acclaimed drama that deals with AIDS and homosexuality topics that are, in part, political.

In 1989, the FCC fined a Miami radio station $2,000 for airing the song “Penis Envy,” by the Roches. Far less explicit than Jerker, “Penis Envy” is also a lot funnier. The song-which begins, “If I had a penis...”-is a satire of macho attitudes.

The FCC stresses that it’s the manner and not the content of a broadcast that makes it indecent. Thus the commission might argue that the sexual references in these broadcasts were gratuitous and therefore “patently offensive.” After all, you can discuss homosexuality and sexual stereotypes without mentioning anal intercourse or penises. Still, there’s no question that the impact would be different. Moreover, in some cases a political message is inextricably tied to an indecent medium.

For example, authorities in Huntington Beach, south of Los Angeles, recently threatened to prosecute a local bar for sponsoring a “fake orgasm” contest, inspired by the movie When Harry Met Sully. Leykis says he wanted to protest by holding his own fake-orgasm contest on the air. “I didn’t do it,” he says. “I have to worry about whether [the FCC] is going to see that as political speech. The point was not to titillate people. The point was to taunt the authorities in Huntington Beach and point out that what they were doing was wrong.”

Or consider the Mojo Nixon song, “I Ain’t Gonna Piss in No Jar.” A protest against drug tests, it includes references to Thomas Jefferson and Patrick Henry. But it also includes lines like: “I ain’t gonna pee-pee in no cupkss’n Nancy Reagan’s gonna drink it up,” as well as a rather graphic description of a symbolic “urinary moat” around the White House. It’s disgusting, sure, but it’s certainly political. And any disc jockey who read the FCC’s definition of indecency would have to think twice about playing it.

Barry Hansen, a.k.a. “Dr. Demento,” is a big fan of Mojo Nixon, but he says he wouldn’t risk a fine by playing “I Ain’t Gonna Piss in No Jar” on the air. Hansen, who has a local show on KLSX-FM in Los Angeles as well as a nationally syndicated show, adds that he stopped playing “Penis Envy” in L.A. after the commission found it indecent in 1989. “We don’t want to get our stations in any more trouble than necessary,” he says. “It’s all a matter of what you can get away with.”

The regulation of broadcast indecency also threatens news coverage of political controversies. In 1990, several viewers, including the omnipresent Donald Wildmon of the American Family Association, complained that WGBH-TV in Boston had shown some of Robert Mapplethorpe’s sexually explicit photographs during a 10 p.m. newscast. (An exhibit of his work was opening the next day at a local museum.) The FCC considered the case for about eight months before deciding not to fine the station, and then only because the segment had aired after 10 p.m., which fell within a court-ordered safe-harbor period.

Similarly, Jim Mueller, counsel for the Children’s Legal Foundation, cites the broadcast of Madonna’s “Justify My Love” video on ABC’s “Nightline” last year as an example of indecency. Yet the video, which was too salacious for MTV, had sparked a public controversy, one that Mueller himself was clearly interested in. How do you cover the issue of indecency without covering indecency itself? De spite such paradoxes, conservative activists do not take concerns about a chilling effect very seriously. “That’s nonsense,” says Joseph Reilly, president of Morality in Media. “It’s pretended, not real; it’s for the talentless, not the talented .... The rule is pretty plain. There are those who are risk takers, who are going to try to push the envelope, and there are those who are creative enough that they don’t feel they have to titillate or descend to the gutter in order to maintain the attention of the immature.”

As Tom Leykis and Mojo Nixon demonstrate, not everyone who “pushes the envelope” does so for purposes of titillation. But those who do, such as Howard Stem, actually benefit from the threat of FCC action. Like a drug dealer, Stern earns a premium for taking the government- imposed risks that others avoid. His appeal is based on expectations created by government regulation; his show is shocking (and profitable) precisely because people have come to assume that there are certain things “you can’t say on the radio.” The FCC is making Stern rich.

It may even make him respectable. When the government tries to suppress a certain category of speech, merely uttering it becomes a form of protest: Pushing the envelope is a statement in itself. By regulating broadcast indecency, the FCC transforms a vulgar loudmouth into a martyr in the cause of freedom.

Stern has combined the themes of money and martyrdom in his greatest-hits album, now available on cassette and compact disc. It’s called Crucified by the FCC, and the cover pictures Stern carrying a cross.

Jacob Sullum is assistant editor of REASON.