For broadcasters in the twentieth century — the century when broadcasting was the main transmission belt for mass communications in America, unlike the present century — the phrase they all knew by heart sounded less like a reminder than a threat. The granting of a broadcast license by the Federal Communications Commission was contingent upon the licensee operating in “the public interest, convenience, or necessity.” The vagueness of the language left plenty of room for interpretation and anxiety. Besides generating obscene profits, what exactly was the proper civic role of a radio or television station — Educational programming? Political forums? Tornado warnings? And when did the feds have the authority to swoop in and turn off the spigot by lifting the license (aka “permission to print money”)?

The mix of government regulation, broadcaster responsibilities, and the public interest in allowing entertainers to mouth off over the airwaves has come into sharp relief recently due to a single line in a monologue by Jimmy Kimmel. What ratcheted up the Kimmel controversy from the usual kerfuffle over a wardrobe malfunction or obscene utterance was the intervention of FCC chairman Brendan Carr, who said Kimmel should be suspended and “we can do this the easy way or the hard way.” The head fed, of course, also weighed in from his digital lectern. If not exactly a jackboot on the neck, the pressure on Disney from the FCC underscored who really controlled the means of communication.

The big complication for electronic media in terms of First Amendment protection is that, unlike print, neither film nor broadcasting was on the radar of the Founding Fathers. The motion picture industry engaged in a prolonged legal and cultural battle to gain recognition as a medium of free expression — until 1952 it was considered “a business pure and simple” and could be regulated like food and drugs.  Only in the late 1960s did it secure a safe place under the umbrella of the First Amendment.

By contrast, broadcasting over the airwaves has always been a special case. Radio and television signals are transmitted over the electromagnetic spectrum (quaintly called “the ether” in the trade press) that encircles earth’s atmosphere. The bandwidths or frequencies that carry the signals (channels to us non-engineers) are likened to the lanes of a freeway. To prevent the literal crossing of signals, a traffic cop (the government) needs to allocate and regulate the space. From this vantage, the spectrum is publicly owned real estate, like a national park, over which individual broadcasters have a solemn responsibility to be good stewards of the land. 

In 1927, the U.S. Congress passed the first major enabling legislature for electronic communication, the Radio Act. It created an omnibus regulatory agency with the authority to allocate space on the spectrum, without which a broadcaster could not beam out signals and thereby sell audiences to advertisers. Broadcasters did not own the space; they were tenants with a limited government lease. It also marked the first appearance of the money phrase “the public interest, convenience, or necessity.”

Thus, unlike disgruntled newspaper readers, whose only resort was to write an angry letter to the editor, radio listeners could now vent their frustrations by going over the heads of a local affiliate and complaining directly to the government. In 1929, a group of Protestant ministers sent a resolution to the Federal Radio Commission protesting the incessant cigarette advertising on radio and arguing, sensibly enough, that “the public interest, convenience, and necessity is not served in what seems to be a campaign to transform 20,000,000 boys and girls into cigarette addicts.” (After the Surgeon General’s Report on Smoking and Health in 1964, the FCC basically agreed, but it took an act of Congress in 1971 to ban cigarette advertisements from radio and television.)

In 1934, in tune with the outlook of FDR’s New Deal, the 1927 act was replaced with more expansive legislation giving the commission greater power and purview, including over the hegemonic AT&T, the telephone oligopoly. The watchdog-regulator was now called the Federal Communications Commission, the FCC, which, like FBI, became a set of enduring initials among the New Deal’s alphabet agencies.  Significantly, the 1934 act specifically forbade censorship, flatly stating that the government did not have “the power of censorship over radio communications or signals transmitted by any radio station.” In the next years, the FCC assumed provenance over FM and TV, but in terms of programming content it remained mainly hands-off.   

Of course, as radio penetrated every pore of American life in the 1930s, controversies erupted and members of the public demanded government clampdowns over flash points such as Father Charles E. Coughlin, the antisemitic radio priest whose sermons plagiarized from Joseph Goebbels, and the opinionated radio commentators Walter Winchell (who was anti-Nazi) and Boake Carter (who was anti-New Deal). After the broadcast of Orson Welles’ alien invasion docu-drama The War of the Worlds on October 30, 1938, the FCC was flooded with letters from traumatized earthlings. Yet even after the War of the Worlds frenzy, the FCC held no formal hearings and exacted no penalties on CBS or its affiliates — though the networks agreed that words like “flash” and “bulletin” would not be used in simulated news broadcasts and fictional plays.

The most sensational collision of the FCC, the radio networks, and notions of the public interest was inspired not by Orson Welles but by another multihyphenate auteur, the screen goddess and provocateur Mae West. At 8:00 p.m., Sunday, December 12, 1937, West appeared with actor Don Ameche on the Chase & Sanborn Hour, a variety show broadcast over NBC’s Red Network. (NBC was so enormous it was divided into two separate networks, the Red and Blue, which eventually became an antitrust issue. FCC facilitated the break-up of the duopoly and in 1943 the Blue Network became ABC.)

A ten-minute skit on the show entitled “The Garden of Eden,” written by radio playwright Arch Oboler, featured West cast to type as Eve in a kind of pre-Code version of the story of Genesis. As was usual with Mae West, the sexual charge was sparked not so much by the words she spoke but how she spoke them — seductive inflections, suggestive moans. She exuded the passion of a temptress eager to commit the original sin. After Eve persuades Adam to sample the forbidden fruit, he awakens to the allure of her eyes and lips followed by a few seconds of fill-in-the-blanks radio silence. “Along the way, it was made abundantly clear that Eve-Mae was hot-bothered and cuddle curious,” wrote Robert Landry in Variety.

“Filthy, sacrilegious, and irreverent!” howled Rev. Dr. Maurice Sheehy of Catholic University, promising that the Legion of Decency would turn its attention from cinema to the radio networks. Hollywood Reporter radio critic Bill Bloecher was less appalled but of the same mind. “A most flagrant violation of good taste — and more certainly for a Sunday show,” he wrote. “Even without the Westian insinuations, it is difficult to understand how it passed the so-called censorship of the [advertising]  agency [J. Walter Thompson] and network.” In damage control mode, NBC scrambled onto the air with an abject apology. “Radio faces the most aroused public criticism it has yet encountered as civic, church, and educational leaders were swamped with demands for reform which would put broadcasting under the most severe disciplinary censorship that has ever fettered the amusement world,” ran an alarmed account in The Hollywood Reporter.

Under duress, the FCC convened an emergency meeting on the matter of Mae West. Doing its due diligence, the commission demanded NBC provide the script, a wax recording of the show, the contract with Chase & Sanborn, and a list of the 59 stations that had broadcast the show. After perusing and listening, FCC chairman Frank R. McNinch chided NBC for beaming out “suggestive, vulgar, immoral” material that “may be offensive to the great mass of right-thinking, clean minded American citizens,” but he took no official action against either the network or the affiliate stations. A chastened NBC promised that biblical mockery would never again be on its dial. For good measure, Mae West was cast out of the network — indeed, all mentions of Mae West’s name on radio were forbidden.(West was uncancelable; she was back on the air in a few months.) FDR did not feel compelled to weigh in on the controversy.

Under FDR, Truman, and Eisenhower, the FCC seldom dipped into content mainly because a sponsor-supported medium seeking 100 percent acceptability steered clear of culturally or politically incendiary material. In the postwar era, the main complaint broadcasters had with the FCC was not over programming but over the “freeze” put in place on new station licenses from 1948-1952. Early adopters who had purchased television sets with the expectation of tuning in to a local affiliate were left with nothing to watch but snow.

Not even the Cold War atmospherics — of the non-electromagnetic kind — compelled the FCC to intervene in programming. After the publication of  Red Channels: A Report on Communist Influence in Radio and Television, a list of 151 artists with allegedly subversive connections, broadcasters imitated Hollywood and instituted a blacklist of suspect artists and required loyalty oaths from employees. With the sponsors, the networks, and the stations all satisfied with the arrangement, opponents of the blacklist turned to the FCC as the court of last resort. The Authors League of America and the ACLU each petitioned the FCC for redress, arguing that “the blacklisting of artists was against the public interest and that operators who condone it lack [the] proper qualifications to hold licenses.” Their case was hurt by the fact that blacklisted artists did not want to testify before the FCC and generate more career-killing publicity.

It hardly mattered: the FCC refused to hold hearings. FCC chairman Wayne Coy said that blacklisting was “not properly the subject of a general hearing by the Commission” and that “the day-to-day operation of a radio or television station is primarily the responsibility of the individual station licensee. Matters of business and artistic judgement, including the selection of programs and talent, fall within the  scope of the exercise of that responsibility.” In short, the networks and affiliate stations had the right to fire anyone they wanted for whatever reason.

The next FCC regime was not as hands off. It is worth remembering that the first FCC chairman to put the fear of God into broadcasters was appointed by a liberal Democrat to wield the medium to his ends: JFK’s selection of the like-minded media activist Newton Minow. On May 9, 1961, in a famous address to the National Association of Broadcasters, Minow declared that television was “a vast wasteland” — a  phrase that stuck — and demanded that a JFK-watered oasis be created — or else. “I say to you now: renewal will not be pro forma in the future,” Minow intoned menacingly. “There is nothing permanent or sacred about a broadcast license.”

In June 1961, the FCC held hearings two weeks of public hearings in New York on the “creative aspects” of television programming, pegged to Minow’s vast wasteland screed. The hearings had a HUAC-like vibe to them — a star-studded cast of “friendlies” and “unfriendlies” called on the carpet by the government, though the charge this time was not communist subversion but aesthetic malfeasance.  “Never before in history have writers been paid so much for writing so badly,” said Writers Guild of America chairman David Davidson, who would know. Up-market producer David Susskind railed for four hours about the awfulness of the boob tube. Testifying for the defense, variety show hosts Ed Sullivan, Garry Moore, and Perry Como vigorously stuck up for the medium that made them. Sullivan said Susskind’s criticism of TV was pure sour grapes. “Nobody in TV has been given so many opportunities on all three networks. Nobody has had so many flops.”

The broadcasters got the message from the feds and responded with a spike in prime-time documentaries and public affairs shows. JFK-friendly programming also happened to bloom in the former wasteland: A Tour of the White House with Mrs. John F. Kennedy, produced by CBS and telecast on February 14, 1962, by both CBS and NBC, featured the fawning CBS correspondent Charles Collingwood trailing after the First Lady and marveling at her interior decorating; and ABC’s Crisis: Behind a Presidential Commitment, a cinema verité documentary produced by Robert Drew and telecast on October 21, 1963, celebrated JFK and Attorney General Robert F. Kennedy outmaneuvering Alabama governor George Wallace as he tried to prevent the desegregation of the University of Alabama. Republican congressmen accused ABC of telecasting a “staged performance” and demanded the FCC investigate ABC, which did not happen.

Perhaps the comedic-political precedent closest to the Kimmel affair is the extended showdown between artist and network caused by The Smothers Brothers Comedy Hour (CBS, 1968-70), at the time the sole counter-cultural redoubt in prime time.  After the clean-cut comedy duo got a severe case of the 1960s, they delighted in injecting drug references, sexual innuendo, and anti-war sentiments into the family hour entertainment. In 1969, CBS executives yielded to public complaints and affiliate blowback and cancelled the show. “An artist should be able to reflect his views on a variety program,” Tom Smothers said, sounding very 2025. “It’s important for television to reflect what’s happening in the streets, on campuses, and in the ghetto. There should be some network that reflects the changing times.” Richard W. Jencks, president of CBS, dissented, telling a meeting of affiliate station owners that someone had to define the line “between entertainment and propaganda” and that someone was he and not Tom Smothers.  

Smothers had an unlikely ally in FCC Commissioner Nicholas Johnson, who believed that free speech “not only permits but compels the dissemination of anti-social material.”  Johnston pointed out the FCC got plenty of letters from viewers indignant over The Smothers Brothers Comedy Hour and Rowan & Martin’s Laugh-In, but “he had never raised a question about programming with the networks.” Jencks was less open-minded than the FCC: CBS would not allow a forum “for the expression of hateful views” that were also “in questionable taste.”

In the age of cable, satellite, and digital media, the protective oversight of the FCC regarding the public interest, convenience, or necessity might seem anachronistic because almost no one receives televisual “broadcasts” (itself now something of a misnomer) over the air. The new modes of reception (private not public) explain why the cancellation of Disney+ subscriptions concentrated the minds of corporate executives more powerfully than the black outs by affiliate stations.  It also explains why, say, South Park or Last Week Tonight with John Oliver aren’t in the crosshairs. Though still on the books, the protocols established for broadcasting in 1927 might seem to be a classic instance of technological-cultural lag.

Or not. In asserting a public interest in making the airwaves safe for the First Amendment, the words of a Mae West or a Jimmy Kimmel may be the best place to draw a line in the ether.  “Bureaucrats itchy for more power pick on such thing as this Mae West broadcast,” the New York Daily News editorialized in 1938. “This is the way government censorship gets its start.”