Due to the frequency of Smith's complaints, Mancow has filed a harassment lawsuit against Smith that demands $3 million and a court order issued to stop the complaints, as compensation for the $42,000 that seven of his 60+ complaints have cost the local station. Mancow, who it turns out studied to be a priest before becoming an “obscene” radio personality, is running around claiming, “ If we lose the 1 st Amendment, we lose America ,” in his statement. But the FCC has built into its complaint guidelines the clause, “Obscene speech is not protected by the 1 st Amendment”. So much for America , I guess. If it weren't readily apparent in the morning paper that we are already losing the very American ideals that we have been supposedly fighting a war for, then let Mancow's intrinsically thwarted statement serve as our first clue.

Since the 1 st Amendment does not protect “obscene” speech, let's look at the FCC's written definition of obscenity to see if we can guess (along with every stunned deejay, and terrified television and radio station) what the word means. I have footnoted words within the FCC's guidelines that may prove problematic.

To be obscene, material must meet a three-prong test:

• An average (2) person, applying contemporary (3) community standards, must find that the material, as a whole, appeals to the prurient interest;
• The material must depict or describe, in a patently offensive (4) way, sexual conduct specifically defined by applicable law; and
• The material, taken as a whole, must lack serious literary, artistic, political, or scientific value. (5)

Because the FCC's guidelines for obscenity hinge upon its chairman's opinion on broadcasted material's “serious value”, context is everything. You might get away with all the obscenity you like if your intentions are right in the eyes of the country's new culture police. Just take, for example, the point of divergence in FCC dealings in regard to the case of Oprah Winfrey. This March an Oprah rerun aired in which guests gave graphic descriptions of teenage oral sex parties. Oprah airs in Chicago at nine in the morning, which, although the impetuous for decency standards always comes back to the children that are listening, didn't seem to prove problematic for the FCC in this case. Howard Stern, whose show has been fined numerous times for airing similarly sexually graphic transgressions at 8 a.m. , tried to demonstrate the irony of the situation by airing a clip from Oprah's controversial guest on his radio show. His station refused to let the clip air without bleeping out the language of the Oprah segment, as such content seemed to be asking for another fine for Stern.

"If they fine Oprah Winfrey for indecency, people are going to be outraged." Stern argued with the radio station's manager after he was informed of the bleeped out language, "My point is play it...Don't bleep it. This is what's going to expose the hypocrisy. If they fine me for this, they are going to have to fine Oprah. And if they fine Oprah all hell is going to break loose." The FCC has received a comparable number of complaints for this Oprah episode as they did for Bono's “fucking (6) brilliant” utterance, yet the daytime talk show host has yet to be informed of any impending FCC violations.

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2) An “average” person? Oh, is that like a “normal” person?

3) Come on. Entire theoretical debates have been written trying to define “contemporary”. A highly debatable word has no business modifying the equally perplexing, “community standards” as it begs the question, “What community?” Are we one big national community, or would it be fair to assume that, say, community standards aren't the same in Chicago as they may be in L.A. or Colona , Iowa ?

4) Offensive to whom? The “contemporary” “average”?

6) In the case of Bono, the FCC ruled that because Bono's expletive did not refer to the act of fucking, so much as it was used as a charged adjective to modify “brilliant”, the pop icon is in the clear, but recently Chairman Michael Powell has brought the case to the commission for reconsideration.