John McCain

Fair-Weather Friends

When journalists desert from free speech battles.

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On March 1 the Santa Monica radio station KCRW, the most lucrative link in the National Public Radio chain, fired the Los Angeles humorist Sandra Tsing Loh for saying the word fuck in a pretaped commentary. It was supposed to be bleeped for comic effect, but the engineer forgot and Loh didn't stick around to make sure. The piece ran twice on Sunday morning, February 29; by Monday, KCRW General Manager Ruth Seymour, a past recipient of the Los Angeles Times First Amendment Award, had given an apologetic Loh her walking papers.

"It is the equivalent of the Janet Jackson performance piece, and there is not a radio or TV programmer today who does not understand the seriousness involved to the station," Seymour told Reuters. "You cannot say 'fuck' on the air, period," she explained to the L.A. CityBeat. "We could lose our license."

Even though no radio station has ever lost its license over an unintentional fuck, this was a clear-cut free speech issue. When one of the West Coast's most respected media organizations cites fear of a shutdown as the reason to fire a 42-year-old mother of two who was in the midst of a five-part series on knitting, the justification is either an example of the chilling effect that government regulation has on speech or an inflammatory excuse to get rid of an unwanted employee. Either way, damage was done to the climate for free expression on the airwaves.

You would think that reporters, broadcasters, and other professed free speech enthusiasts would be virtually unanimous in their opposition to the firing—especially given that KCRW immediately erased Loh's entire six-year archive from its Web site and issued a damage-control press release that included the creepy phrase "pre-emptive distancing." But you'd be wrong.

"Oh, please," KNX-AM news radio anchor Dave Williams wrote to LAradio.com. "The woman dropped an F-bomb on a microphone. We don't do that, period."

With the sole exception of satirist Harry Shearer, none of KCRW's high-profile on-air personalities even sent Loh a note of support or regret. On the letters page of the L.A. Times and in the comments section of the local media weblog L.A. Observed, a surprising number of journalists thought the more appropriate response was to trash Loh's work and character.

Freelancer Dawna Kaufmann said the monologist was acting "like a victim, a martyr and a total sociopath"; colorful descriptions from others included "scatological guttermouth," "five-minute-a-week bonbon," and "over-the-hill Valley Girl." Lawyers wrote to L.A. Observed arguing vehemently that "this is not a free speech issue because the [Federal Communications Commission] took no action." (UCLA constitutional scholar Eugene Volokh, by contrast, noted, "If rational fear of government punishment…helped contribute to the firing, then there is a free speech issue.")

The Loh incident was a timely and important reminder that when it comes to free speech, journalists can be fair-weather friends, using remarkable inventiveness to avoid the core issue if the conflict involves participants they either love or hate. This principle has been demonstrated repeatedly since Janet Jackson flashed her tit during the Super Bowl, an event that triggered obnoxious congressional hearings, a spate of FCC fines, Clear Channel's decision to stop airing the boundary-pushing DJs Bubba the Love Sponge and Howard Stern, and the terrible Broadcast Decency Enforcement Act.

The latter is a House bill, being debated by the Senate at press time, that increases the maximum federal fines for every individual case of broadcast indecency from $11,000 for individuals and $27,000 for stations to $500,000 for each.

The scale and stakes were much bigger than in Loh's mini-controversy, but the journalistic evasions were largely the same: Stern is hardly a "poster child" for free speech; you gotta draw the line somewhere; and isn't the real problem media consolidation?

"As a big fan of the First Amendment, I'm as reluctant as anyone to urge curbs on speech," wrote Orlando Sentinel columnist Kathleen Parker, in a piece that unreluctantly urged curbs on speech. "But as an even greater fan of civilization, I'm having a hard time mustering sympathy for shock jock Howard Stern."

Parker's larger point is commonly made: "We shouldn't be confused by the inevitable laments about the erosion of free speech. In the free marketplace, you're welcome to say whatever you like, but if people don't want to buy whatever you're selling, no whines. As long as the airwaves remain in the public domain, the public has a right through its government to stifle the profane rants and juvenile outbursts of our lesser-evolved brethren. Ain't democracy grand?"

Ain't logic grand? In a truly "free marketplace," one that followed the letter of the First Amendment's requirement that "Congress shall make no law…abridging the freedom of speech, or of the press," the broadcast airwaves would be just as uncensored as satellite radio or cable TV, and more spectrum would be opened up for new stations.

But theoretical ideals aside, Stern was dropped from six Clear Channel stations not because the free market was deserting him (indeed, Stern claims he was No. 1 in all six cities) but because Clear Channel executives felt compelled to change the company's policies on the day before they were scheduled to testify under oath at the congressional indecency hearings.

Similarly, when Cumulus banished the Dixie Chicks from its airwaves after lead singer Natalie Maines told a London audience she was "ashamed" to hail from the same state as President Bush, many self-described civil libertarians made the point that, after all, Cumulus is a private company and is free to air whomever it likes. That is true, of course. But defending freedom of speech is more than just respecting private property. It's expressing support for the climate of free-wheeling expression.

When the Chicks were punished even after Maines' immediate apology, it was amazing to see how many of Parker's fellow First Amendment "fans" responded by demonstrating a sudden enthusiasm for music criticism, or career advice for top-selling bands, or for most anything that diverted attention away from the core truth: that an artist's work was being suppressed in response to a mildly intemperate and unpopular political statement.

No, the Chicks-Nix was not a First Amendment issue (as John McCain complained, inaccurately); and yes, it's always fun to mock millionaire celebrities who take their hyperbolic Persecution For Dissent straight to the bank. But a climate in which a popular singer becomes the target of a boycott for a single political sentence is one in which a much less popular singer knows to keep his mouth shut, unless it says something in favor of the Iraq War.

Speech has consequences, obviously, but the ideal consequence is speech in rebuttal, not suppression. This is usually felt most keenly by those who agree with the controversial political statement in question. One of the biggest and most prolific supporters of Howard Stern during the shock jock's FCC trouble this year has been the weblogger Jeff Jarvis of BuzzMachine.com—who happens to be a longtime fan of Stern.

Yet just a year ago, the same guy, who has been writing an invaluable Daily Stern roundup of all indecency-related news for several weeks running, found it humorous to refer to the Dixie Chicks as "the Vichy chicks," in part no doubt because Jarvis was just as vehemently in favor of the war that Maines was against.

There are two essential preconditions for the government to infringe upon the free press.

One is a bureaucracy that values its own political existence higher than the Constitution—a virtual guarantee. The second, much less remarked upon, is a compliant press. When I was getting started in journalism during Ronald Reagan's second term, the ethics and constitutionality of drug testing was a hot topic in the country and especially in newspapers. Now you almost never see it mentioned outside the sports pages, where more urine testing is always better. Not uncoincidentally, most major newspapers now submit new employees to mandatory drug tests. The journalists rolled over, moved on, and quickly grew weary of the topic.

Since reporters probe the First Amendment's boundaries every day, checking their pulses on issues regarding the climate for free speech can be a good preliminary indicator of the patient's overall health. If that's true, then we have reason to be worried—while the Bush Administration erects wall after wall between the truth and the American people, and adopts policies specifically designed to limit Americans' freedom of expression, some journalists are responding not with howls of outrage, but requests for more.

When the public or the press gives bureaucrats an inch of regulatory authority over speech, the instinct is to take a mile. In March the Senate Commerce Committee came within a single vote of passing legislation that would have expanded limits on "indecency" to satellite and cable.

Much further off the radar screen, the Treasury Department's notorious Office for Foreign Assets Control has issued a series of rulings during the last several months prohibiting American publishers from editing so much as a single comma when printing works originating from Iran, Cuba, Libya, and Sudan, using the absurd argument that it will help "protect American citizens."

Yet some journalists keep egging the government on. In March, Patrick Goldstein, "Big Picture" columnist for the L.A. Times, actually urged Congress to hold annual hearings to grill entertainment executives on whether their product has "any artistic value." Like many critics who conflate the indecency debate with media consolidation, Goldstein expressed support for increasing FCC fines.

How threatening individual broadcasters with penalties of half a million dollars per incident will help "the little guy" is beyond my comprehension. But Goldstein is positively thrilled at the emergence of a coalition to trash the First Amendment: "It's not a pure liberal-versus-conservative issue anymore—and therein lies hope."

The real hope lies in refusing to let free speech battles be outsourced solely to journalists. In Sandra Tsing Loh's case, after dozens of regular KCRW subscribers wrote in to announce their withdrawal of financial support, General Manager Seymour caved and offered Loh her job back in a better time slot. Loh declined, then moved over to crosstown NPR rival KPCC.

"Unlike so [much] of my other work," Loh said at her victory party, "my firing has proven to be both a critical and popular success." In an ugly election year, one hopes the public support she received will set a precedent.

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