Not in Front of the Children: 'Indecency,' Censorship, and the Innocence of Youth, Second Edition

4. POLICING THE AIRWAVES

F o u r P O L I C I N G T H E A I R WAV E S
O r a l S e x , a n d “ t h e P u b l i c C o n v e n i e n c e , I n t e r e s t , o r N e c e s s i t y ” On February 21, 1973, the host of the popular Femme Forum talk show on radio station WGLD-FM in Illinois began a conversation with a caller: Q: OK, Jennifer. How do you keep your sex life alive? A: Well actually, I think it’s pretty important to keep yourself mentally stimulated . . . you think about how much fun you’re going to be having. . . . [I]f that doesn’t work there are different little things you can do. Q: Like? A: Well—like oral sex when you’re driving is a lot of fun—it takes the monotony out of things. Q: I can imagine. A: The only thing is you have to watch out for truck drivers. Q: Uh-hum, OK, that sounds like good advice.1 A social historian might have appreciated this tongue-in-cheek exchange as a manifestation of sexual openness as pioneered by Sigmund Freud, Havelock Ellis, Alfred Kinsey, and their successors, William Masters and Virginia Johnson, in the 1960s,2 but the Federal Communications Commission was not amused. Assigned by Congress to regulate broadcasting, which included enforcing a law that banned “any obscene, indecent, or profane language” on the airwaves, the FCC decided that the oral sex segments of Femme Forum were not just “indecent” but “obscene”—that is, so “patently offensive,” prurient, and without “redeeming social value” under the Supreme Court’s then-reigning Roth/Memoirs obscenity test as to lack any First Amendment protection.3 The agency relied largely on the concept of variable obscenity that had recently been elaborated by Justice Brennan; as in Ginzburg v. United States, the 1966 “pandering” case, it said, the producers of Femme Forum sought “to garner large audiences through titillating sexual discussions.” And because broadcasting is uniquely “pervasive and intrusive”—it both saturates public space and invades the privacy of the home—a more expansive standard of obscenity should apply. Finally, the Commission said, impressionable youngsters might tune in to Femme Forum, for radio “is almost the constant companion of the teenager.” It was clear that Sonderling Broadcasting, the owner of station WGLD, knew minors were in its audience, for a program earlier in February had segued from a discussion of orgasm directly to one about turning 16 and getting your driver’s license. Under the concept of variable obscenity, this presence of vulnerable youth lowered the threshold for an obscenity finding still further.4 A liberal commissioner, Nicholas Johnson, protested in a pointed dissent that both the “variable obscenity” and (as yet undefined) “indecency” prohibitions in the FCC law were hopelessly vague, and questioned how Femme Forum could be “patently offensive” according to prevailing community standards when it was the area’s top-rated radio show.5 Indeed, the genre of sexually uninhibited, or “topless,” radio was thriving in many communities by the early 1970s. Sonderling Broadcasting did not appeal the $2,000 fine that the commission imposed to punish Femme Forum for its jocular sex recipes. Instead, the company acquiesced by banning all sexual discussion. By the time of the FCC’s Sonderling decision, other broadcasters had also eliminated topless radio. A coalition of radio listeners did go to court, and the resulting judicial decision in 1974, affirming the FCC’s power to stop “titillating and pandering ” radio productions in the interest of protecting children, set the stage for the next three decades of broadcast censorship.6 Ever since the 1927 Radio Act, the federal government had licensed and regulated broadcasters in a way that would have raised immediate First Amendment hackles had the targets been newspapers or books. The justification was “scarcity”—the availability, at least initially, of only a limited number of broadcast frequencies. The scarce resource of the airwaves, it was said, should be used to further the public interest rather than the editorial 9 0 N O T I N F R O N T O F T H E C H I L D R E N predilections of the few who secured broadcast...