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Opie and Anthony and the First Amendment

The 'Copulation in the Cathedral' promotional stunt is not First Amendment. But with the government getting involved, then it becomes First Amendment.

I’ve been asked by several members of the press about the “Opie and Anthony” contretemps. And is it a First Amendment matter?

The question flatters me, but I think it is better directed to scholars and academics … knowledgeable fellows like Robert Corn-Revere, the former chief counsel for the FCC, who now chairs the Media Institute’s First Amendment Advisory Council … or the likes of Robert M. O’Neil, who once ran the University of Virginia and is now professor of law there … and Professor Lawrence Winer, of Arizona State. You could also get some enlightenment from Richard Kaplar of the Media Institute, who has had his hand on some 40 books on First Amendment matters. And failing that, I would repair to the wisdom and counsel – always – of Patrick Maines himself, the gifted and graceful president of that Media Institute, which does such valuable and essential work in this area.

You’ve really got to ask these constitutional scholars how the vulgarity and attempted defilement which occurred at Saint Patrick’s Cathedral should be viewed … by the public … by the government … and by our profession (or as many of those who used to serve on the NAB Board call it: our “in-dust-ry”).

I’m sorry to be all over the place with this. But I think you’d better consult, post haste, with the incomparable Don West … or great seers like Eggerton and Jessell. And I would also think we could find answers from some of our statesmen: Jeff Smulyan, Ed Christian, Dick Ferguson may be helpful … and certainly Ward Quaal, our greatest statesman. Give Del Colliano a call. He’s sitting out in the desert counting his money! And be sure to run this past Erwin Krasnow, NAB’s former chief counsel, now in private practice at Shook, Hardy and Bacon in Washington.

As for me … I received a call from a very famous broadcaster – known for his philanthropy – who said, “This is not a First Amendment matter, O’Shaughnessy! Don’t get on your high horse.”

Well, because I have a contrarian opinion on damn near everything, here goes.

I think the word to describe this promotional stunt is vulgar.

I am a poor, stumbling, staggering, faltering Catholic and son of the Roman Church. But this is clearly an outrageous insult … copulating in the best-known cathedral in America. It is an insult not only to Catholics, but also to any God-fearing religion-practicing citizen of the republic.

If this had happened in a Jewish temple … an Israeli swat team would have appeared and then we would really have a story: “Mel Karmazin disappeared on the way home. His car has never been found!” You would also have The New York Times declare a Holy War on Sumner Redstone and Mel Karmazin.

If this happened in a mosque … then you’d better post sentries at the Statue of Liberty and the Empire State Building! I’m exaggerating and kidding … and I hope we make a point only that this is not alone an offense against Catholics. And who could deny these good people – our Jewish and Muslim brothers – their sense of outrage over the defilement of a sacred place of worship?

You’re going to hear a big “however” from me in just a minute. But, first I have to tell you what I think should happen, and if I had a trade publication I would “suggest” this: I think Melvin Karmazin and Sumner Redstone should jump in their car and go right over to the Cardinal’s Residence on Madison Avenue (they can fight over who gets the best seat!) with the most profound, graceful, heartfelt, sincere apology they can summon up.

And I think they also should have a check; 250 thousand dollars is a nice, round number. “Your Eminence, we can’t find the words to apologize for this vulgar insult. However we know of the good work you and Catholic Charities do … here is $250,00. You have every right to be outraged … etc.”

Clearly this was an insult directly against the Archbishop of New York. This is his ecclesiastical seat … Saint Patrick’s Cathedral.

So it is not only an insult to every worshiper who was there that day, but to every Catholic! And it’s an insult to every broadcaster. People are saying, “What trash! What low-class vulgarity is our profession capable of?”

I think they should do a mea culpa. They should do a maximum mea culpa! And I think Melvin Karmazin should get involved … The place to start the apology is where the offense was committed. The Jews have a saying … Mayor Koch told me in an interview last week … that if you sin against God you apologize to God. But if it is against some one … you go to the person you have offended. Go to Egan. And come bearing gifts. “This cannot make up for the outrageous vulgarity, Your Eminence. But we want to try! We are in the entertainment business … this is not entertainment. This is vulgarity.”

Having said that, I’m afraid we have to stand with the Vulgarians if the FCC wants to threaten their license. Then it does become a First Amendment matter.

The ‘Copulation in the Cathedral’ promotional stunt is not First Amendment. But with the government getting involved, then it becomes First Amendment.

I remember – and Mel will confirm this – when we defended Howard Stern from censure by NAB (our own tribe!) … I had not even read the offending transcripts. And some months later, I was sitting in the Washington office of a trade publication editor. When he put a transcript under my nose, I said, “My God, those are awful … they’re terrible.” But the editor, who was also the son and heir of the legendary Sol Taishoff, said, ‘We’ve always had terrible examples to defend, O’Shaughnessy!” So perhaps it was ever thus. And Mel has to be assured we will all stand with him this time as well … as repugnant and obnoxious as is this episode – the defilement of a cathedral.

I don’t wish to deny Opie and Anthony a livelihood forever. (Remember I even offered an outlet to Bob Grant who was famous – or infamous – for attacking, in the unkindest manner imaginable, with the worst kind of ethnic derision, the individual I most admire in public life in America today, Governor Mario Cuomo.) But the scary thing about all this is the report that these fellows – Mr. Hughes and Mr. Cumia – are having discussions with Clear Channel. As someone pointed out in a New York tabloid last week, ours is the only profession that when you do something disgraceful and get fired for it, your fee goes up!

We are nagged by another larger issue, suggested by last week’s story in The Daily News about the long litany of outrageous stunts – on and off the air – by our radio colleagues.

So this issue has to do with the broadcaster as citizen. And do we see ourselves only as purveyors of diversion or distraction? Or do we see the franchises which are in our care and keeping as forums which have the potential to give us the opportunity to “repair the universe” (Tikum Olam) and build up our communities and make them, as the great Mario Cuomo would say “stronger” … even “sweeter” than they are.

We can resemble something more than Vulgarians. Our tribe, our profession, should, unquestionably, find the offending performers and their corporate handlers guilty of vulgarity and not hesitate to identify them as utterly lacking in class. Indeed, John Eggerton, the brilliant young Washington bureau chief and editorial writer of Broadcasting and Cable, had it about right when he accused them of being “panderers.”

But the government should stay out.

I hope Mel will consider a “gesture” to the Cardinal and the Church.

It may already have occurred. But it starts with a heartfelt, profound apology, which we have not heard.

They may have “accommodated” Bill Donohue of the Catholic League. But the larger issues raised by this contretemps remain.

And I don’t want to veer off into the consolidation issue. But does not this unsettling and smarmy episode again beg the question of the competence and degree of sensitivity, (or lack of it) possessed by the paid-gun journeymen “asset managers” who now populate our ranks, having replaced the old-line community broadcaster who was usually aware of his or her fiduciary relationship with his community and used the instruments of communication in their care and keeping for the public’s good and welfare?

“Opie and Anthony” are entertainers, performers. And as such, I think they must be protected. But what of the corporate managers, whose mantra and methods of operating are informed only by those business-speak buzzwords: “Doin’ what it takes … “Gettin’ it done” … and “It’s a win-win situation” … “24/7!”

Of only this are we sure: that the stunt was totally and completely devoid of any grace, class or redeeming social value.

And so we’ve read in the public press and in the trades that Commissioner Michael Copps has an extraordinary interest in all this … and while, I’m afraid, the good commissioner makes a lot of broadcasters nervous, I believe Mr. Copps, who is aptly named, may be trying to tell us only to clean up our act.

This has even drawn the attention of Chairman Powell. And as I bow to no one in my admiration for General Powell’s son and heir, I think we should await the findings of the chairman. Michael Powell is a very smart guy. He is not going to trample on the First Amendment.

Nor is he going to let us trample on the public’s sensibilities or interfere with their right of worship.

Anyway, that’s what I think.

And, incidentally, this is not an “Only in New York Story” as has been suggested. It really goes to the heart and priorities of everyone sitting in front of a microphone everywhere … and who is sitting in the program director’s chair … and, ultimately and essentially, who carries the general manager’s portfolio and responsibility.

And what is a radio station in this day and age?

Footnote: As I finished this piece I was handed an amazing and somewhat disconcerting statement attributed to John Hogan, the new CEO of Clear Channel Radio. In it Mr. Hogan assured the profession that Clear Channel was “not interested” in providing a new podium for Opie and Anthony. In a majestic and soaring moment of candor, Mr. Hogan found that the shock jocks “have demonstrated an inability to make intelligent decisions about protecting a license.”

Which reminds us of another magnificent and exalting epigram: “It’s not the principle (sic) of the thing … it’s the interest it draws from the bank that counts.”

The man is nothing, if not honest … and practical.

Mario Cuomo … where the hell are you when we need you?