Fair-weather friends: when journalists desert from free speech battles

Reason, June, 2004 by Matt Welch

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 gutter-mouth," "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 Fee 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.