Howard Stern, the FCC and the First Amendment

Howard Stern made his last "terrestrial radio" broadcast sometime last week. He will be bringing most of his twelve million listeners to Sirius Radio, a pay service of satellite radio. Though he will be earning a whopping $75 million more under the Sirius contract, it's not the money that motivates his move.

It's the FCC. FCC chairman Michael Powell decided that Stern's programming is indecent, and Clear Channel Communications has gotten tired of paying his fines. But why does the FCC have the right to regulate free speech on radio?

Supposedly it's because of scarcity; because there's only so many different channels that can be intelligibly broadcast upon, the government has the right to license and then regulate the airwaves. But this makes no sense; they would, according to that theory, have the right to issue licenses but not to mandate content. The courts have repeatedly declared that the government has no right to regulate content on the internet; why then can they do so on the airwaves?