The studio at Q-101 where Mancow’s Morning Madhouse originates once had a single “dump button”–a switch that enables a producer to bleep dirty words during the seven-second tape delay that separates what gets said in the studio and what goes out on the air. Now it has two–Mancow himself works the second–and there are plans to install a third, which will be operated by a new employee whose sole responsibility will be to watch Mancow’s mouth for him. “We haven’t filled that position yet,” says Chuck DuCoty, vice president and general manager of the station. “But basically the job requires good reflexes and a knack for seeing things black-and-white in a world of gray.”

The station’s new self-censorship measures are part of the ongoing fallout from the infamous wardrobe malfunction at the Super Bowl halftime show in February, during which Janet Jackson’s right breast was exposed on national television for seven-tenths of a second. That stopwatch figure comes to you courtesy of the Federal Communications Commission, which at press time still hadn’t actually fined CBS for desecrating the holiest Sunday of the year but has nevertheless initiated a regulatory jihad against broadcast smut in general.

Mancow’s troubles with the FCC actually predate the new climate: in the past five years the commission has levied fines totaling $42,000 against Q-101 for breaches of taste committed by the popular shock jock. But things have gotten worse for Mancow since February, and on August 12 his employer, Emmis Radio License Corporation, cut an amnesty deal with the regulators by making what DuCoty calls a “onetime voluntary contribution of $300,000 to the Federal Treasury.” In exchange for this gift, all the black marks have been expunged from the station’s record, and all pending complaints against it have been dropped. “In the scheme of things, I think we got a bargain,” DuCoty says. The arrangement does not, however, protect Mancow or the station against future penalties–hence the proliferation of dump buttons.

Although he’s cleaned up his act considerably in recent months, Mancow is unrepentant about what he’s said and done on the air in the past and denounces the FCC’s new enthusiasm for censorship as a threat to civil liberty and artistic freedom. “This is the slippery slope,” he says. “It’s very hard to be creative, to be honest and expressive, when you have to double- and triple-guess yourself. The church I attend sings a hymn: ‘On Christ the solid rock I stand / All other ground is sinking sand.’ Well, they’re making us stand on sinking sand.”

Given that the First Amendment says Congress shall make no law abridging free speech, exactly why does the federal government have the power to make Mancow watch his mouth? The answer to that question is long and complicated. When radio broadcasting began in the 20s, the legal definition of “speech” was much narrower than it is now: books and movies were routinely suppressed by state and municipal authorities on moral grounds, and neither would be pulled all the way under the umbrella of the First Amendment until the 60s. When Congress created the Federal Radio Commission (forerunner to the FCC) in 1927, it included a fig-leaf clause in its charter forbidding the commission to interfere with “the right of free speech by radio communications,” but nobody really expected the airwaves to be a zone of untrammeled verbal freedom. The Radio Act of 1927 further declared the radio spectrum to be an inalienable public resource–that’s a warm and fuzzy way of saying the government owns it–and set up a licensing system to remind broadcasters that they were only borrowing their wavelengths for finite terms. Come renewal time, they were subject to lose them if the commission felt their past performance did not serve the “public interest, necessity or convenience.” To this day nobody knows exactly what that phrase means.

The legal theory underlying the government’s power to censor the airwaves has changed over time. In the early 30s the Supreme Court argued that the First Amendment didn’t apply to radio because it was a mere entertainment medium, like the movies. After a couple of key Supreme Court decisions in the 40s, a new rationale emerged, called the scarcity doctrine. The argument goes something like this: because there aren’t enough wavelengths available for everyone to have a radio or TV station, the government is obliged to choose who gets to broadcast, and can therefore also decide who shouldn’t get to broadcast.

There are a whole lot of logical problems with the scarcity doctrine, beginning with the fact that radio spectrum isn’t all that scarce. Technological advances are always making it possible to divvy up the bandwidth into ever smaller slices. Radio and TV stations have long outnumbered newspapers in the U.S., and newspapers depend on an authentically scarce resource called advertising revenue. For these and other reasons, the scarcity doctrine has been quietly retired in the last couple decades.

Luckily for the FCC, the Supremes came up with a third justification for broadcast censorship in the 1978 case of Pacifica Foundation v. FCC. The offending licensee in that case broadcast a recording of George Carlin’s routine concerning the seven words you can’t say on television (shit, piss, fuck, cunt, cocksucker, motherfucker, and tits). The court upheld the government’s right to censor such speech on the grounds that radio and TV are “uniquely pervasive” and thus “uniquely accessible by children.”

Nowadays this looks pretty arbitrary. Cable TV and satellite broadcasting are also pervasive and accessible to children, but they enjoy full protection under the First Amendment. Michael J. Copps, the FCC commissioner whose torch against smut burns brightest, readily acknowledges this inconsistency, but he wants to fix it by expanding the FCC’s mandate to cover the newer media. “Eighty-five percent of homes get their television signals from cable or satellite,” he told members of the National Association of Broadcasters at a “decency summit” in March. “Most viewers, particularly children, don’t recognize the difference as they flip channels between broadcast stations and cable channels. Because cable and satellite are so pervasive, there is a compelling government interest in addressing indecency when children are watching.” It’s unclear whether Copps really thinks such a radical extension of the commission’s power is politically possible; lately he’s been backpedaling on this subject.

The following dialogue, from an FCC transcript of a Morning Madhouse broadcast in the spring of 2001, is fairly representative of how Mancow and guests talk–or used to, anyway.

Mancow, discussing a Swedish herbal drink called “Niagra,” reputedly an aphrodisiac: “Prison Bitch [a male guest], I want you to go over there and I want you to just rub, rub her bottom . . .”

Male cast member: “All those months of smelling your finger it’s finally paid off for you.”

Female cast member: “No, but seriously this [Niagra] really works. I’m feeling Duncan Hines right now.”

Mancow: “Now wait, you’re feeling wet and gooey?…Just imagine that it’s me right there . . . When was the last time you had some action?”

Female cast member: “My boyfriend, he wanted to get me up to two fingers but I was kind of reluctant. And um he did it. And uh it was incredible. But um I had some of this Niagra stuff and I was pretty moist . . .”

Mancow: “Prison Bitch has a woody. Prison Bitch has a woody . . . How many uh drinks [of Niagra] before uh a stranger’d be willing to open her legs for me?”

Back in the day, the National Association of Broadcasters had a voluntary ethics code that kept edifying banter like this off the air, but that code was voided as a restraint of trade during the Reagan era, part of that administration’s drive to deregulate any industry it could. Republicans, in other words, can blame their late patron saint for the rise of Mancow and his ilk. Deregulation also paved the way for greater concentration of ownership of media outlets and nullified limits on how many commercials could be broadcast per hour.

Commissioner Copps has been calling for broadcasters to create a new code of ethics to replace the old one. Other decency watchdogs feel the industry can no longer be trusted to police itself. Last year, after Bono declared Gangs of New York “fucking brilliant” on the Golden Globes, Republican congressmen Doug Ose of California and Lamar Smith of Texas introduced a bill that would define profane language where it had never been defined before–in Title 18 of the U.S. Code–using an expanded version of Carlin’s list. It could well be the filthiest piece of legislation ever drafted: “As used in this section, the term ‘profane,’ used with respect to language, includes the words ‘shit,’ ‘piss,’ ‘fuck,’ ‘cunt,’ ‘asshole,’ and the phrases ‘cock sucker,’ ‘mother fucker,’ and ‘ass hole,’ compound use (including hyphenated compounds) of such words and phrases with each other or with other words or phrases, and other grammatical forms of such words and phrases (including verb, adjective, gerund, participle, and infinitive forms).” This actually seems rather narrow when you consider the above transcript.

Ultimately the question is whether Mancow’s brand of ribaldry is sufficiently harmful to merit the perpetuation of the FCC’s power of censorship. The commission’s track record needs to be taken into account here. As Lucas Powe Jr. documents in his book American Broadcasting and the First Amendment, the commission has a long history of toadying to the White House and abusing its powers for partisan purposes. In the 30s FDR used it to drive his critics from the airwaves, among them erstwhile New Dealer Father Charles Coughlin, who’d taken a sharp turn to the right and started calling the president “Franklin Double-crossing Roosevelt.” By the time Roosevelt was done tinkering with FCC policy, radio stations were prohibited from editorializing altogether. This rule was called the Mayflower doctrine.

In 1949 the commission replaced the Mayflower doctrine with the fairness doctrine, which said that broadcasters could and should editorialize but only if they balanced their coverage by giving equal time–for free–to anyone who demanded the right of rebuttal. This sounds nice and democratic in principle, but in practice it was an even better gag than the Mayflower doctrine: to avoid giving away valuable commercial airtime, broadcasters stayed well away from controversial issues.

In the 60s JFK made creative use of the fairness doctrine to stifle critics of the Nuclear Test Ban Treaty, as did LBJ to quell opponents of his Great Society reforms. Nixon, no surprise, was in a class all his own at using fairness challenges and the threat of license nonrenewal to intimidate journalists.

The fairness doctrine went out of effect in 1987, another victim of Reagan deregulation, but that’s no reason to think that the FCC can now be trusted to regulate broadcast content. So far the current censorship drive has been limited to smut rather than political discourse, but what’s to prevent any given administration from selectively using the power to suppress indecency against a broadcaster whose real crime is airing legitimate criticism of its policies?

The federal regulation of broadcast content has always been arbitrary and driven by politics, and even if it were clearly, consistently, and judiciously applied, it would still violate the First Amendment. Singling out over-the-air broadcasting for censorship makes no sense given the proliferation of other equally “pervasive” media. And the attention currently being paid to decency would be better directed at the issue of concentration in media ownership. As Mancow says, all other ground is sinking sand.

Art accompanying story in printed newspaper (not available in this archive): illustration/Brian Gubicza.