Fighting The FCC Up Close with First Amendment Rights Lawyer Norm Kent

There is a quote on Norm Kent's Web site where the activist/attorney/columnist/ radio host states: “The important thing about fighting for civil rights, at any level, is to understand that your greatest enemy is complacency and apathy. You just have to be on alert at all times. You have to be willing to challenge authority; to presume that the saints of justice are themselves sinners.” Many South Florida residents have turned to Kent for assistance, as his practice specializes in the field of criminal and constitutional law, including First Amendment related cases. While Kent is heavily involved in gay rights, the activist lawyer is starting to see a new twist in First Amendment rights regarding Freedom of Speech, and he doesn't like what he is seeing with the FCC and its current indecency battles. On top of that, recent decisions by major radio corporations Clear Channel, Infinity and Emmis to settle with the FCC over alleged indecent broadcasts don't sit well with Kent. ”It's going to take the courage and commitment of stations to stand up to these regulators,” says Kent. “It's simply a fundamental principle of America that when government overreaches, the only check and balance is when the citizen, small business or large corporations stands up to it.” Kent's ties to the broadcasting industry these days includes representing air personalities, stations and broadcast corporations in fights against the FCC over indecent content. He can also be found hosting Weekend Legalon WFTL (Live 85, 850 AM)/West Palm Beach at 10 a.m. on Saturdays, and also on Weekday Legal, a daily five-minute commentary at 7:25 and 8:25 a.m. weekdays. FMQBcaught up with Kent for a conversation on life in the trenches while battling today's FCC, “decency crusaders” and those who would trample on a citizen's First Amendment right of free speech.

How long have you been involved with First Amendment rights?
I've been a First Amendment attorney for over 25 years, protecting free speech doctrines and the constitutional rights of clients, including criminal defense. Interesting, with the Fifth Amendment, you protect a client's right to shut up; with the First Amendment you protect the right to be heard. As an agent and attorney in that area, I have gravitated into the business of representing
radio talk show hosts. And in today's climate, management
is placing more language in their contracts that deal with restrictions on their free speech. That is ironic because the essence of Talk radio has always been unbridled free speech – a fundamental American principle that evolved out of people 200 years ago standing on a soap box on the street corner, speaking out and saying whatever they wanted. People didn't have to listen then, and they can turn the dial now. But the duty of the First Amendment advocate is to insure the soapbox is standing even if no one is listening.

So you are starting to see companies putting clauses in the contracts that deal with free speech limitations?
Yes, absolutely. Clients who have had standard agreements routinely renewed are now up against corporate lawyers insisting that new broadcast limitations be imposed over the airwaves. The broadcast talent is now rather abruptly having their previously unfettered broadcast restricted and subjected to burdensome regulations that could not have been reasonably anticipated. This may sound a bit incongruous, but if you are broadcasting a show you do not want to have to be thinking afterwards about every word you uttered beforehand. So you're talking about something that's really on the front burner of every radio station personality's contract, where management is seeking to impose limitations on what the host can say, based on guidelines that are still slowly evolving uncertainly with the FCC; guidelines that are terribly amorphous and hard to pinpoint. But not everyone I represent is a [syndicated Talk show host] Neil Rogers who can tell management flat out, “No way will I sign that!”

Could attempts to have clauses like that written into contracts be considered unconstitutional and a violation of the First Amendment?
Unfortunately, just like defendants in a criminal prosecution, individuals can civilly contract to waive their constitutional rights. So a talk show host can sign an agreement, which would otherwise limit his civil liberties, and he can be contractually bound to them, just as he can be held to a non-compete agreement that is reasonable in duration and geography, even though it limits his right to employment for a time. So the radio personality has to be careful about the contracts they sign with the broadcast entity. You can waive away your rights. Not all First Amendment freedoms attach
to employment with private corporations. Companies can regulate your conduct under uniform guidelines that are applicable to all. Having said that, a good lawyer can and should make a strong
argument that those clauses, which contractually limit a radio talk show host's free speech rights, are against public policy and inherently void and that those hosts have an inherent editorial free dom, which no contractual term can inhibit. But what happens if a host specifically contracts not to criticize advertisers and he does, compromising a station's revenues? If you have not protected
yourself in your contract, you are placing yourself in legal jeopardy. And stations are demanding those kinds of things from talk hosts. In one recent contract, one of my clients was asked not to criticize the owner of the sports team who carried their games on the station. And we said no way. Besides, that is fundamentally inconsistent with the station's obligation to the community and
the industry. Free speech is their livelihood. Why hold yourself hostage to advertisers or subordinate yourself to the FCC? Stand up and protect your rights.

Why do we see Clear Channel, Infinity, Emmis and other broadcast corporations settling out of court with the FCC and paying a lump fine instead of going to court and fighting them?
The same reason that ninety-five percent of cases in criminal courts get pled out. You want to negotiate for a resolution in the here-and-now rather than risk the FCC revoking your license later,
after a hearing where the commission is the judge and jury. It becomes more cost effective to pay a $50,000 fine today than it is to fund attorneys for two years to litigate a case in federal courts.
You want the certainty of a resolution that pleases your stockholders and insures your license is not placed in jeopardy. Basically, the broadcasters that need to stand their ground are instead caving in and copping a plea out of expedience. They don't want to challenge the regulatory authority. I would encourage the stations to take exactly the opposite tack. Think visually for a moment
about that one Chinese student who stood up to the tanks at Tiananmen Square. It's visually seared into the minds of many people because one person had courage. It's going to take the
courage and commitment of stations to stand up to these regulators. It's simply a fundamental principle of America that when government overreaches, the only checks and balances are when
citizens, small businesses or large corporations stands up to be make a difference.

But don't you think these corporations would eventually want to protect their rights in court, rather than let the FCC keep imposing standards upon them?
I would hope so. Courts granting rights to individuals and comstill panies who ran up against overzealous prosecutors and regulators have written the history of American jurisprudence. Maybe these corporations need more vigorous attorneys. Maybe the corporations need to be reminded that the essence of free speech is to protect the voices you disagree with. That does not mean you have to countenance libel and permit the mayor to be called a tax cheat and his wife a whore, but it should give you the freedom to demand his resignation on the air for not giving you a piece of the action.

Do you believe the FCC decency regulations are constitutional?
No, I do not. I believe many of them are fatally flawed. The vast majority of their decisions are in fact unchallenged, unpublished, informal letter rulings, which get stored in lonely, isolated, individual complaint files at the FCC, never reviewed by a judicial authority. I guess many of the stations think it is like fighting the electric company or a motor vehicle bureau, a vast bureaucracy
and goliath pushing its own mandate. It's going to be up to the stations and the corporations to contest these rulings with much more vigor and assertiveness than they have in the past. In other
words, they should not roll over and pay the fine all the time. Stations must engage counsel and go to court, if necessary, arguing that the FCC has embraced amorphous decency standards, which can only be clarified by appellate and legal review. That's what has to happen for the rulings to change and adapt to the 21st century. There is no body of court decisions interpreting FCC indecency standard in particular cases; only self-serving interpretations lent credence by the FCC. These interpretations in fact seldom provide meaningful guidance for broadcasters. Going back
to the question you asked about negotiating contracts, one of the things that station management will ask for is to include a contractual phrase wherein the employee “could be sanctioned or
penalized if he fails to abide by FCC rules and regulations.” Well then, don't those rules have to be clear and lucid? By agreeing to that clause, I would be compromising that person's rights enormously, because it essentially means agreeing to sanction my client for conduct that the FCC has not clearly defined. So how is the talent going to know what the heck is offensive when the regulators do not; when their own rules are inconsistent and undefined?

Put yourself in the shoes of the CEO of one of the major broadcast corporations. What would you do to lobby or fight the FCC on indecency front?
I am blowing my own horn here, but I would hire experienced First Amendment attorneys and criminal defense attorneys who are outside the mainstream, and like myself, have represented
adult video libraries, gay strip clubs, and the crazy guy who has the guts to disrupt a school board meeting by prancing around naked to oppose tax increases. I would ask those attorneys to go
into court and challenge the bias and predisposition of the regulators, ask whether their rules have been adopted with procedural and due process guidelines built into them, and pursue declaratory judgment actions, challenging the FCC at every level, mandating pronounced and clearly articulable regulatory schemes, which can then be validated or eliminated based on established First Amendment standards. The FCC has tried to make individual rulings on a piecemeal, case-by-case basis. Definable standards are lacking. So you find out with each new case what they are thinking on that particular day. But this isn't a Chinese restaurant menu. You can't choose one from column A and then another from column B. Ironically, that is what is happening to hosts today. They are the end game recipients of this ludicrous methodology. They broadcast something on the air Monday and then the counsel for the station sends out a memo Tuesday, after the fact, reading, “Don't say that anymore. We are not sure but it may not be okay, and we do not want to take chances.” This is the residual impact of inconsistent FCC rulings. Only from demonstrative litigation will the broadcast industry emerge with more clarified standards, and who knows, maybe like the guy standing on a soapbox on a street corner two hundred years ago, we will wind up with very few.

The broadcast industry has asked for clarified standards, but Michael Powell has suggested they might not want the FCC making that rulebook.
It's one thing for Michael Powell to say that the FCC should not be in the business of making that rulebook, and quite a contradiction for him to then say, “We're going to fine you for not playing by it.” Meanwhile, it is in his back pocket and no one can see it until after or can be challenged he looks at it and says you fouled out. The advantage of jurist or jury a governing template, which can be evaluated as to whether it complies with due process standards, or can be challenged on its merits for not being indecent. Right now it is like playing poker and not knowing if deuces are wild, but you play the hand anyway.

Going back to if you were a CEO of a broadcast company. What policy would you disseminate to your air personalities and programmers?
It is a tough job to have today. You want to protect the rights of your broadcasters, embrace free speech on the airwaves, and not offend a regulatory body that is playing by new rules you don't have until after the cards are dealt. So I would ask the broadcast talent to sensitize themselves to the realities that the law is evolving painfully. How about having the broadcasters and the on-air talent complain to the FCC that they feel their free speech rights are being inhibited? Argue strongly against guidelines that are being improperly administered by a regulatory agency. Argue that the agency is not doing its job effectively. Argue that pushing the envelope is your duty and obligation as a talk show host, and that far from being silenced you want to be heard. Right now, the laws on First Amendment obscenity provide more breadth and right than the indecency regulations of the FCC. You probably have more freedom to strip as an adult dancer in a nightclub than you do to talk about those naked breasts on the air. I mean, who showed more cleavage: Janet Jackson last year at the Super Bowl or Ursula Andress coming out of the ocean in a prime-time rerun of the 1962 James Bond movie, Dr. No?

What are your thoughts on why this current climate and FCC crackdown exists?
Very often the government and society responds to extremes that do not reflect the norm. So when a Randy Moss [Minnesota Vikings] moons a national audience in a football game, and Janet Jackson combines with Justin Timberlake to bare her breast on a Super Bowl show, they help create a crackdown and a reaction which is overly harsh, not balanced and not well thought out. It's a social righteousness that's inconsistent with what actually going on in society. I believe that the FCC has become a force that's advocating a political agenda instead of articulating legal guidelines. I believe the FCC has gone over the line. And I believe the FCC believes it has a Christian White House by its side.

Does that come down to Michael Powell's leadership setting the FCC agenda?
Do you consider him a good leader of this FCC? Look at the climate he has created. You have ABC afraid to air Saving Private Ryan because they are fearful of what the FCC might do. He is piloting a boat with leaks on all sides. I'll tell you this; his actions seem to be inherently inconsistent with the principles he asserted when he took the job. There were some speeches he made as to how open he thought programming should be; how you can't regulate free speech and that the Commission has an obligation to endorse all points and viewpoints within the political spectrum. The FCC is instead applying value systems that were operational in society seventy-five years ago. It seems to be regressing. When they talk about the FCC Communications Act of 1934, they are enforcing it as if it were still 1934. One more thing, you measure job performance by consistency. Guess what? Howard Stern is doing the same show and had the same content in 2004 that he generated in 1994. So why was he fined so much this past year? Not because he was inconsistent, but because Mr. Powell's FCC was. As a matter of fact, one of my clients was fined $35,000 in the year 2001 for broadcasting exactly the same allegedly indecent musical bit that had been broadcast uncensored and unfined on a companion station in the same market from 1997-2000.

Some are charging that the FCC has become the country's morality police, but that's never been the FCC's job to come down and set the morals for this country.
That question is softball. You have a regulatory body that is imposing their will upon vast amounts of citizens without having either been elected or really empowered to do so. What they're engaging in is political overreaching, covering it with administrative decisions that are legally strained. They say that Viacom and some stations have been willfully indifferent to the indecency regulations.
I say that the FCC has been willfully indifferent to the interpretation of the Constitution. The sanctions they are imposing are strict liabilities on free and protected speech. And they're not able to justify it in fact. Many of their decisions may be well written or well intentioned, but they improperly assess culpability, erroneously adjudicate the law and often overwhelmingly tilt towards the maximum penalties.

Howard Stern has millions listeners, yet all it takes is for one person to file a complaint for the FCC to consider issuing a NAL. Since the FCC is supposed to be issuing fines based on violations of community standards, how can one person define those standards?
The FCC is operating under archaic regulations that so empower them to act. So first off, you have to challenge the FCC's own body of rules and regulations. Then I would suggest that broadcast entities seek some of the legal remedies I have previously suggested. Engage attorneys that have a lot of experience with defining what community standards are, and use the Arbitron ratings and the host's popularity to diffuse the lone, singular, often eccentric complainant. Utilize a citizen's initiative. Maybe at Christmas in New York City instead of handing out satellite radios, Howard Stern should have had his million listeners papering the FCC with letters stating they think his show is perfectly fine and not at all indecent. Under the law, that would have to become part of the permanent record of the file on a case. Stern could have gotten more votes than John Kerry, and made a strong claim for contemporary community standards. He can still do it. There are still some outstanding complaints against his show. Additionally, the FCC needs to closely scrutinize complainants, because as we are seeing many are representing special interest and evangelical groups speaking for woefully small numbers of the general population. Lots of those entities and individuals have their own bias and agenda, and are not making complaints based on the law but their own selfish prejudices. So the duty of the FCC is to scrutinize the complaint to see if it legitimately represents a cross section of people all over the country? Have they gotten only one letter about a show that was broadcast on 46 stations? If so, then the community's standards have not been offended. Further, I do not believe the FCC can ever properly define what community standards are when a show is being heard simultaneously in San Francisco and in North Dakota. Even [syndicated Talk show host] Michael Savage would agree with that, and don't you think a gay activist in San Francisco couldn't legitimately argue Savage has been indecent? But the FCC can't use a singular offended party to mandate a uniform standard. The FCC has an obligation to ensure uniformity and consistency when they render a decision on indecency. Those procedural
safeguards are not going to be protected if the standards can't be applied equally. It means that the client's rights to due process has been violated. The FCC won't say that for you. A federal
judge might.

There are methods to measure audience. Why doesn't the FCC have or make a regulation setting a percentage rate as to the number of complaints – actual complaints, not an activist group's form letter complaints – that need to be filed before they are able to consider making an action?
That is one of my points. Someone needs to start challenging the body of rules which allow the FCC to set policy. Based on the fact that people can file form letters, maybe the FCC is going to have to raise the bar for a complaint to be legitimately considered. Maybe they're going to need to amend their own regulations so that in order to file a complaint the aggrieved party has to file affidavits, provide tapes, and meet certain legal standards. But we cannot have coalitions of special interest groups doing Internet filings from e-mail accounts that were set up by people who can't be tracked. In other words, the FCC needs to get its own house in order. They need to set better rules for themselves before they mandate them for others.

You brought up Randy Moss earlier. He didn't pull down his pants, so why would his action be deemed indecent?
Remember that the first computer pornography act passed by Congress and later declared unconstitutional by the Supreme Court made simulated acts of virtual pornography illegal. That is the climate we live in. So the Moss incident is going to be used by those people who seek to inhibit free speech as an example of the kind of sexually provocative conduct that they find offensive. They're going to say that the station could broadcast these games now on seven-second tape delay and avoid replays of those things. So one player gets radical and now an entire country should not be allowed to watch sports live? I don't think so. The point is that Moss simulated an indecent act, but [Fox TV sportscaster] Joe Buck's response and censure may have saved the station a half million-dollar fine, a fine I might add that the station should never have been facing to begin with.

If you were put into the role as an FCC commissioner, how would you have dealt with the Janet Jackson incident?
I don't think that conduct was reasonably foreseeable. And I don't believe that Viacom or the broadcasting entity should be sanctioned for conduct that they can't anticipate or control. It's as bad as holding a library responsible for letting out a book that somebody objects to as offensive. They can't be held responsible for the content of each book. Look at what happened in Mississippi when a school district tried to ban [TV talk show host] Jon Stewart's new book, America, on their library shelf. This is all part of an increasingly restrictive climate, which countenances censoring things you find offensive. The things we find offensive are the things we have to protect. The First Amendment is designed to embrace diversity, not diffuse it. We are free to create the world we live in by each and every choice we make today, and that enriches us as a community. Whether we like Mozart or Metallica is for us to decide and we can do it without the FCC's help, thank you.

Michael Parrish is VP/Operations, overseeing FMQB's industry leading
news coverage and the production of nationally syndicated radio specials. He joined FMQB in 1995 as Modern Rock Director, rising to Managing Director in April 2000. Before joining FMQB, Parrish served as MD for WDRE/New York and its sister station WIBF/ Philadelphia. He gained his first broadcast experience as MD for Buffalo State College's radio outlet, WBNY. Reach him at mparrish@fmqb.com.