by Joe Garofoli

Fifty years ago today, a San Francisco Municipal Court judge ruled that Allen Ginsberg's Beat-era poem "Howl" was not obscene. Yet today, a New York public broadcasting station decided not to air the poem, fearing that the Federal Communications Commission will find it indecent and crush the network with crippling fines.

Free-speech advocates see tremendous irony in how Ginsberg's epic poem - which lambastes the consumerism and conformism of the 1950s and heralds a budding American counterculture - is, half a century later, chilled by a federal government crackdown on the broadcasting of provocative language.

In the new media landscape, the "Howl" controversy illustrates how indecency standards differ on the Internet and on the public airwaves. Instead of broadcasting the poem on the air today, New York listener-supported radio station WBAI will include a reading of the poem in a special online-only program called "Howl Against Censorship." It will be posted on www.pacifica.org, the Internet home of the Berkeley-based Pacifica Foundation, because online sites do not fall under the FCC's purview.

"Why, 50 years later after a judge ruled that children could read this poem, people are afraid the courts will say that their ears shouldn't hear it," said Ron Collins, a constitutional law instructor and First Amendment advocate who is leading a small group of authors, broadcasters and free-speech advocates pushing to broadcast the poem eventually. "Yet they can go on the Internet and see far, far worse things."

Another irony: WBAI, the Pacifica Foundation station in New York that plans to post "Howl" online, is the same station that took on the FCC more than 30 years ago over the right to air George Carlin's comedy routine featuring the "seven dirty words." The challenge led to a 1978 Supreme Court decision governing what naughty words can be broadcast and when.

Pacifica's attorney for FCC issues, John Crigler, thinks airing "Howl" would be "a great test case" in the current environment. But he understands why WBAI won't broadcast "Howl," even between the hours of 10 p.m. and 6 a.m., the hours the FCC has cordoned off for rougher language.

WBAI program director Bernard White fears that the FCC will fine the station $325,000 for every one of Ginsberg's dirty-word bombs. If each Pacifica station that aired the poem - and possibly repeated it - were to be fined for airing "Howl," it could mean millions of dollars in fines.

The potential impact of such penalties is daunting to a commercial-free station with a $4 million annual budget whose financial state White described as "in the black, but we're surrounded by a lot of red ink. A fine like that might crush us."

Interim Pacifica Foundation executive director Dan Siegel said, "And I think they're being optimistic with that financial assessment." Siegel said each Pacifica station is free to air the program if it wishes, but he didn't know if any planned to.

But with a budget of $18 million for all of its five stations, Siegel said, "it might make more sense for CBS or someone like them to take on a risk like this."

So the poem that begins "I saw the best minds of my generation destroyed by madness" finds itself an odd bedfellow in the battle against the FCC with entertainers like Nicole Richie and Cher, both of whom were deemed to cross the FCC's dirty-words line that free-speech advocates say is constantly shifting.

Last month, several public broadcasting outlets - including San Francisco's KQED - broadcast "clean" versions of Ken Burns' World War II documentary "The War" because they feared the FCC would punish them for airing four four-letter words that turn up over the course of the visually graphic 14-hour documentary about the brutality of war.

At last month's Emmy Awards broadcast, the Fox network censored three instances in which performers said words that the network felt could land it an FCC fine. One involved comedian Ray Romano using the word "screwing." In another instance, a performer mouthed, but didn't say, a four-letter word. The third was actress Sally Field using the word "goddamn" to describe her opposition to the war in Iraq.

Free-speech advocates and broadcasters say uncertainty about appropriateness is rooted in two recent cases that are wending their way through the court system.

Last month, attorneys for CBS asked a federal appeals court to overturn a $550,000 fine the FCC imposed for airing singer Janet Jackson's exposed breast during her infamous "wardrobe malfunction" in the 2004 Super Bowl halftime show. The FCC said that even though the exposure lasted only 9/16th of a second, CBS failed to exercise proper control of its "employees" - Jackson and halftime show co-star Justin Timberlake.

In June, the Second U.S. Circuit Court of Appeals in New York ruled that the FCC acted "arbitrarily and capriciously" when it planned to penalize Fox for "fleeting expletives" uttered by Cher and Richie at the Billboard Music awards shows in 2002 and 2003 respectively. The network's attorneys said the FCC hadn't punished such "fleeting expletives" since the 1978 Pacifica case involving WBAI and Carlin's seven dirty words.

But while Pacifica's Crigler said "Howl" would be a good test case for this new landscape, University of Virginia law professor and former FCC Commissioner Glen O. Robinson said "it is best to let the other cases go through the system first."

"Maybe the commission would look differently on it if we were talking about Shakespeare, but Ginsberg isn't Shakespeare," he said.

But in an era in which a bottomless well of profanity and pornography is available online, why should it matter that "Howl" can't be broadcast on the radio? Finding "Howl" is a quick online search away for anyone old enough to access a computer.

"But you still have to have a computer," said Janet Coleman, arts director at WBAI, who is airing a program Wednesday about "Howl" with San Francisco's iconic poet and City Lights Books owner Lawrence Ferlinghetti and others. Like other station employees, she feels frustrated by the current atmosphere.

"This is about the public airwaves. If we can't control what goes on them, then how much freedom do we really have?" she said.

The power of Ginsberg's poem isn't lost on Ferlinghetti, who faced jail time and a fine 50 years ago for publishing "Howl." In August, Ferlinghetti joined Collins' group of free-speech advocates, writers and attorneys in asking WBAI to air the poem.

In an interview to be broadcast today on WBAI to commemorate the 50th anniversary of the poem's legal victory, Ferlinghetti was asked what Ginsberg, who died in 1997, would have said about the broadcast controversy.

"Ah, well, I'm sure he'd have plenty to say about it. I often lament that he isn't around to say it," Ferlinghetti told WBAI.

"As Allen Ginsberg's original publisher and editor, for most of his life, I look at the present situation as a repeat in spades of what happened in the 1950s, which was also a repressive period," he said. "The current FCC policy wasn't conceived just for poetry, but when applied to the case of Allen Ginsberg's poem 'Howl,' it amounts to government censorship of an important critique of modern civilization, especially of America and its consumerist society, whose breath is money, still.

"It's such a hypocritical concept of American culture in which children are regularly exposed to adult programming in the mass media, with subjects ranging from sexual to criminal to state-sponsored terrorism, while at the same time they are not allowed to hear poetry far less explicit," Ferlinghetti said. "I suggest the FCC ban all television newscasts until after 10 p.m., when children won't be listening."
'Howl' online
Hear a recording of Allen Ginsberg reciting his poem "Howl" in January 1959 in Chicago on "Howl Against Censorship" in commemoration of the 50th anniversary of the San Francisco court decision finding the poem was not obscene. The program will be posted at 9 a.m. today at www.pacifica.org.
Excerpts
The poem

The beginning of Allen Ginsberg's "Howl":

I saw the best minds of my generation destroyed by madness, starving hysterical naked,

dragging themselves through the negro streets at dawn looking for an angry fix,

angelheaded hipsters burning for the ancient heavenly connection to the starry dynamo in the machinery of night,

who poverty and tatters and hollow-eyed and high sat up smoking in the supernatural darkness of cold-water flats floating across the tops of cities contemplating jazz ...

The ruling

What San Francisco Municipal Court Judge Clayton Horn, in his ruling on Oct. 3, 1957, said of "Howl":

"The theme presents unorthodox and controversial ideas. Coarse and vulgar language is used in treatment and sex acts are mentioned, but unless the book is entirely lacking in social importance it cannot be held obscene."

Online resources

For more information about how the FCC defines obscene, indecent and profane broadcasts:

www.fcc.gov/cgb/consumer facts/obscene.html

Voice your opinion

To contact the FCC or to file a complaint:

www.fcc.gov/cgb/com plaints_general.html

Consumer and mediation specialists also are available Monday through Friday, 5 a.m. to 2:30 p.m. PDT to answer questions and assist in filing a complaint. Call toll-free at (888) 225-5322 (voice) or (888) 835-5322 (TTY).

E-mail Joe Garofoli at jgarofoli@sfchronicle.com.
© 2007 The San Francisco Chronicle