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April 08, 2004

Howard Stern and his asshole

I'm not even going to get into the Clear Channel issue. What a freaking nightmare of deregulation. Clearly, the consolidation that lets a single company have such a big impact on any talk show host, should not be allowed. Regardless, Howard Stern deserved to be fined, according to the law. He was broadcasting over the public air waves, which all of us own and the FCC hands out, to companies like Clear Channel. I still think, the report speaks for itself. Stern is an asshole, who likes to discuss his asshole. He doesn't have a right to do so on the public airwaves. That's what the internet is for, Howard.

11. First, we find that the segment in which the show’s host discusses the sexual practices of certain cast members to be patently offensive. Specifically, the host, in discussing the sex life of John, a fellow cast member, and John’s wife, notes that they “have anal every other time they do it” and that John’s wife “loves anal.”29 The host further discusses John’s wife’s embarrassment that intimate details of their sex life are a topic of public discussion.30 This segment also includes the host’s comments regarding his personal revulsion at the thought of a naked, sweaty, obese man engaging in cunnilingus.31 Finally, during this entire segment, the host’s discussion of anal sex and his commentary on oral sex are punctuated by the sound of someone passing gas or evacuating. Given the explicit description of oral sex and the sustained discussion of a cast member’s anal-sex practices, all of which were accompanied by sound effects of flatulence and evacuation, it is clear that the material was designed to shock and pander. This segment is similar to material found to contain patently offensive descriptions of sexual activities.32 Accordingly, we find the material in this segment of the April 9, 2003, broadcast to be patently offensive as measured by contemporary community standards for the broadcast medium, and thus indecent.

12. Based on our finding that this segment appears to be actionably indecent, we disagree with Clear Channel’s contention that this material is not patently offensive because it was less explicit than other material found to be not actionably indecent in various unpublished staff decisions.33 Some of the material at issue in these unpublished decisions was less explicit than the material at issue here.34 To the extent that the staff, in other unpublished decisions,35 may have erred by determining that the material in those cases was not indecent, those unpublished decisions are not binding on the Commission.36 That is particularly the case here, where published decisions, including those cited in the Commission’s Indecency Policy Statement, provide guidance indicating that material such as that contained in this case is indecent. In the instant case, we find that the complained-of material in this segment included references to sexual activity through both direct references and/or innuendo that we deem patently offensive as measured by contemporary community standards for the broadcast medium.37 This material is similar to other material found to contain sufficiently explicit and graphic references to sexual activity, and thus satisfies the first factor of our contextual analysis.38 Moreover, the references to sexual activity are repeated throughout the segment, and the entire segment dwells on the sexual activities of certain cast
members. The manner in which this material was presented establishes, under the third factor, that the segment was used to pander, titillate and shock listeners.

13. In the other relevant segment, there is a discussion of “Sphincterine,” a purported personal hygiene product. We also find that this segment is patently offensive. Specifically, the show’s host interviewed the inventor of “Sphincterine” and promoted the sale of the product. During the course of this interview, the host and guest made repeated references to oral sex and to the olfactory aspects of excretory activity. For instance, the host noted that the guest had invented “Sphincterine” because “a chick was giving you oral and you had ‘swamp ass’.”39 The host elicited specific information about the encounter that lead to the creation of the product, namely that odors emanating from the inventor’s genital area repelled his girlfriend when she had attempted to initiate fellatio.40 Finally, this segment, like the earlier one involving discussions involving anal sex, was interspersed with the sound of flatulence. Given the detailed discussion of the sounds and smells associated with excretory activity and oral sex, which were accompanied by the sound effects of flatulence and were dwelled upon, it is clear that the material was used to shock and pander. Accordingly, we also find the material in this segment of the April 9, 2003, broadcast to be patently offensive as measured by contemporary community standards for the broadcast medium.

Posted by Mike at April 8, 2004 05:47 PM

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