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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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« Howard Stern: Indecent But Not Profane | Main | FCC: Notice of Inquiry: Broadcast Flag for Digital Radio »

April 14, 2004

FCC's Latest Mancow Decision: Discrimination Due to Lack of Evidence

Posted by Ernest Miller

Recent discussions concerning the FCC and indecency have focused on the record fines levied against Clear Channel for broadcasting the Howard Stern show. I've written a bit about this (Howard Stern: Indecent But Not Profane), but follow Jeff Jarvis for the full coverage. April 8th's The Daily Stern: Bulletin is a good place to start.

However, another indecency fine was affirmed the same day Stern was hit. The decision regards two shows by another popular target of the FCC's censorship, Mancow, who broadcasts a morning show. The decision is here: In the Matter of Emmis Radio License Corp., File No. EB-00-IH-0401 [PDF]. It has some interesting twists.

Read on...

Evidence? Evidence? We Don't Need No Stinkin' Evidence

Unlike many of the other complaints the FCC deals with, the two complaints leading to this fine did not include a tape of the broadcast nor did they include a full transcript. Instead, the complainant wrote two letters with brief descriptions of the offensive segments of two shows aired two months apart.

Interestingly, the complainant is David Edward Smith, President of Citizens for Community Values of Illinois and a senior policy analyst for the Illinois Family Institute, who is being sued by Mancow for "business interference and harassment by filing 'spurious and unfounded' complaints with the FCC," according to the Chicago Sun-Times (Mancow's indecency foe 'rolling up his sleeves'). Smith has filed sixty-six complaints against Mancow of which six have resulted in fines. Therefore, Smith's record for spotting indecency doesn't seem too good. One might also wonder why, if Smith is such a regular listener and complainer, he didn't manage to tape or transcribe the shows in question. Blessedly naive types might also wonder why, if Smith is so darn offended, he continues listening to Mancow's show, but that is not the way it works.

What exactly, was in the complainant's letters?

In this regard, [Emmis] maintains that the March 20 Complaint, which included only the descriptive phrase “graphic detail,” and the May 15 Complaint, which included only the descriptive phrases “both euphemistic and direct conversation about oral sex” and “pornographic sound effects (women moaning),” could not support the staff’s determination regarding the explicitness or graphic nature of each broadcast.

Wow. There is no dispute that the March 20th broadcast discussed "fisting," but a determination of indecency must take into account the full context of the discussion. Call me crazy, but the fact that a discussion includes "graphic detail" doesn't seem like enough context to me. Sex education discussions often include lots of "graphic detail," that doesn't make them indecent. Moreover, it seems to me that "graphic detail" means something different to David Edward Smith than it does to the average American. Once again I am forced to wonder why avid-listener/complainant Smith didn't tape or transcribe this particular show.

But, you know, context is critically important to a determination of whether something is indecent. In FCC v. Pacifica, the Court stated that, "It is appropriate, in conclusion, to emphasize the narrowness of our holding. ... The Commission's decision rested entirely on a nuisance rationale under which context is all-important. The concept requires consideration of a host of variables." If context is all-important, this might lead one to think that one should have more evidence of alleged indecent speech other than that it included "graphic detail." Of course, the FCC isn't about to give a broadcaster the benefit of the doubt:

We reject Emmis’s contention that the staff’s decisions unfairly or improperly “shifted the burden of proof” or otherwise violated the Administrative Procedure Act. Before the staff issued the NAL, it sent copies of the allegations contained in the complaints to Emmis and asked Emmis to state whether it had aired the material as alleged. Significantly, in its LOI Response, Emmis did not deny broadcasting the material, but merely stated that it had no tape or transcript of the broadcasts in question and that its inquiries of pertinent personnel did not allow it to determine whether it had aired the material as alleged. Thus, Emmis neither disputed the accuracy of the complainant’s allegations nor supplied any countervailing evidence, such as a denial from the air personalities, program’s producers or Station management that the material was broadcast as had been alleged. Following the staff’s issuance of the NAL, the Forfeiture Order and the MO&O, Emmis never contended, much less offered any evidence to establish, that the complainant’s allegations were inaccurate in any way, although it had every opportunity to do so. Consequently, the complainant’s allegations stand unchallenged, and the only issue for us to decide at this point is whether those allegations, standing alone, are sufficient to support indecency determinations. As discussed above, we find that they are. In response to Emmis’s generalized claim, we also find no First Amendment defect in relying on this level of proof. [footnotes omitted]

How about that? Imagine someone not feeling the need to justify their speech in the face of vague allegations of indecency due to "graphic detail." Why, if you don't deny or respond to allegations you must be guilty. It couldn't possibly be that, after broadcasting several hours worth of show five days a week, one's memory is a little fuzzy about what was or wasn't said months prior.

Thus, we now have a standard of proof where extremely vague complaints from a habitual complainer are enough evidence for the FCC to dismiss any free speech concerns.

Certain Professions Have Less Free Speech Rights Than Other Professions

There are two more things about the context of the speech. The first is that the discussion involved "fisting" - "described as a procedure for the sexual gratification of a female involving the insertion of an entire hand into her sexual organ" (pssst ... FCC ... it turns out that anuses, both male and female, can also be fisted).

Hey, fisting isn't for everyone, but apparently lots of people do engage in and are gratified by the activity (perhaps the FCC is actually upset about the gratification part - the language isn't entirely clear). Maybe I'm just weird, but if you are going to discuss human sexuality at all, it sort of makes sense to sometimes talk about the types of sex people are actually having and not just the very limited subset of sex acts that people like David Edward Smith are comfortable with. Therefore, I would kind of like to know why the FCC considers a discussion of "fisting" more offensive than other sex acts. A rating system would be handy. Perhaps the FCC could go through the Kama Sutra and rate the various positions and acts on a 1-10 scale of offensiveness.

The second thing about the context that the FCC considered important is the fact that the discussion took place between a "shock jock" and a "porn star." I guess I must have missed the part of my First Amendment class where certain professions are presumed to have less free speech rights than other professions. You know, because porn stars can't really be considered regular citizens, they always talk like sluts and never discuss sexual health or safety issues:

In addition, in light of the complaint’s description of what was discussed (sexual gratification of a female through insertion of a fist into her genitalia) and the identities of the participants (a “shock jock” and a porn star), we conclude that the material was sufficiently explicit, shocking and pandering to be patently offensive as measured by contemporary community standards for the broadcast medium.

Whether you like them or not, porn stars and shock jocks are citizens and deserve the same rights as other citizen until it is shown that they have violated the law. The government shouldn't simply presume that members of certain professions will violate the law until proven otherwise. Would it be permissible to discriminate against porn stars and shock jocks in other First Amendment contexts? What professions will the FCC discriminate against next?


Not only is the FCC maximizing fines against broadcasters, they are lowering the evidence bar and effectively shifting burdens of proof. Additionally, they now consider it appropriate to discriminate against and presumptively find guilty members of certain professions.

Ain't censorship grand?

Comments (6) + TrackBacks (0) | Category: Freedom of Expression


1. Cardiff Man on April 14, 2004 06:16 PM writes...

This seems like a wildly incompetent move legally, because a court of appeal is certainly going to require the evidence from the complaintant that the FCC didn't. At least I hope a court would. But really, it is so shocking to me that I would be disappointed if a court reversed and then didn't punish the FCC in some fashion.

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2. Dave Beaulieu on April 24, 2004 06:33 PM writes...

Mankow you should ask your listeners to aid in the fight in any meaningful way that is possible.

People are lazy but if you get a computer generated petition going and direct them to it, I am sure many would aid in the cause. Also, maybe you should see if you can find attorneys amongst your listeners that would be willing to help you with your cause legally, and get your listeners to contribute in the financial efforts to sue the FCC for it's violation of our constitution.

I would donate.

Something must be done!

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3. debby morge on May 13, 2004 06:08 PM writes...

we need to get rid of the fcc and get a new panel, one that is more in tune with the times

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4. Eli on May 14, 2004 02:45 AM writes...

I really wish people would start taking out a copy of the U S Constitution and reading it, especially Congress and in particular any goverment regulatory agency of any kind and read it, ( NOT READ INTO IT WHAT THEY WANT IT TO MEAN )to understand what our founding fathers meant about the first amendment and the rest of the constitution. If that is not clear enough read the Federalist Papers written to interpet the Constitution just a few years later, what you are told in the press and taught by teacher's opinions, differs greatly from what is written in these great documents.

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5. Mikey on May 17, 2004 11:02 PM writes...

Mancow, it looks like you're just another victim on the "illuminati". Just a small sign of enormous things to come. Everybody, fasten your seat belts.

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6. David Edward Smith on August 3, 2004 04:00 AM writes...

LEADER EXCLUSIVE: Mancow has no beef: shock jock drops $3 million lawsuit against decency advocate

Monday, August 02, 2004

By Fran Eaton, managing editor and news correspondent (

Last week, radio shock jock Erich "Mancow" Muller dropped a $3 million lawsuit against Chicago decency advocate David Smith.

David Smith says he has filed over 66 complaints over several years for things he has heard on "Mancow's Morning Madhouse" that he believed violated FCC's decency standards.
GLEN ELLYN-- After a federal judge rebuffed radio shock jock Erich "Mancow" Muller's claim that Chicago decency advocate David Smith's filings with the Federal Communications Commission violated his freedom of speech, Muller dropped a $3 million lawsuit against Smith last week.

Mancow, who is currently involved in contract renewal negotiations with Emmis Corporation, pleasantly surprised Smith with his decision to drop the lawsuit.

"I’m relieved that Mancow dismissed his lawsuit against me," said Smith, the father of two young children and the new senior policy analyst for the Illinois Family Institute.

Smith said he learned of Muller's decision when his lawyer, Tim Klenk, now of Brian Cave LLP, notified him last week.

"I hope he realizes that our goal was not to attack him personally but to expose and bring an end to his indecent broadcasts that were harmful to children and families," Smith said Sunday.

The lawsuit Mancow filed four months ago claimed Smith's now-70 complaints with the FCC over "Mancow's Morning Madhouse" programming content had affected Muller's ability to earn money. The complaints (half of which are still pending) have already resulted in six findings of indecency against Muller, who has paid $42,000 in fines to the FCC. The talk show host sued for $3 million, his annual contracted salary.

Muller's complaint said that Smith filings with the FCC were "a nuisance, repetitive, malicious, untrue, and designed merely for the purpose of harassment." He said his constitutional right to free speech had not been protected.

Six weeks after Federal Court Judge David H. Coar said Mancow's First Amendment claim was "frivolous" and "insubstantial," the controversial radio personality dropped the lawsuit. Judge Coar then remanded the case to state court, where Mancow voluntarily dismissed the case.

Peter LaBarbera, Glen Ellyn-based Illinois Family Institute's executive director, said, "We always knew that Mancow, by going after Dave, was simply trying to silence a good citizen. Thank God he failed. This is a big victory for the American people and for concerned citizens who are sick and tired of lewd content on the airwaves, and want to use the procedures set up by their government to stop it.

“The dismissal of Mancow’s intimidation suit will give courage to people across the nation who are standing up for decency,” LaBarbera said. “The lesson is clear: stick to your guns and don’t be intimidated by multi-million dollar shock jocks with big wallets."

Smith said Sunday that his attorney has encouraged him not to countersue Muller in order to recover legal fees. Klenk's services in the case were voluntary.

While he may not be counter suing Muller, Smith said he will not hesitate to file FCC complaints in the future "when it appears broadcast indecency laws have been violated.

Smith has been monitoring the Muller show for years, but the FCC stepped up its enforcement of federal rules after the Super Bowl halftime show when a live national audience witnessed the baring rock star Janet Jackson's breast during a musical performance with Justin Timberlake.

A call into Muller's publicist was unreturned over the weekend.

© 2004 Illinois -- all rights reserved

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