Book Review - Howard Stern Comes Again

Drop Howard Stern’s name into conversation with the uninitiated and the result will invariably be the same - “Isn’t he the guy who loves (strippers/fart jokes/phony phone calls?)” Stern built a brand and a career perfecting the art of being a radio shock jock. His genius was not in monetizing male sexual fantasies about threesomes and porn stars, but blurring the lines between “reality” and reality. Stern himself was always a paradox. His on-air obsession with sex, drugs, and rock ‘n’ roll was contrasted by a life lived in the suburbs of Long Island with his wife and three kids. He was fascinated with the celebrity lifestyle but lived a hermetic existence complete with a germ phobia. He released a movie that was as much autobiographical as a love letter to his wife only to get divorced not long after its release. A brief oat sowing year aside, Stern has been married or in a committed relationship with one of two women his entire adult life.

Well into his fourth decade of broadcasting, Howard is back with Howard Stern Comes Again, a door stop of a book whose objective is not merely to chronicle the extensive list of guests Howard has interviewed, but rather, at 550 pages, is an effort to reposition his place in the entertainment universe. Comes Again is as much about Stern’s gifts as an interviewer (an ability he believes was greatly improved through years of psychotherapy) as it is a flex on the sheer volume of his work – a demand that he be taken seriously not just as an essential figure in the history of radio, but in the history of show business, to be considered in the same breath as people like Johnny Carson and David Letterman (Howard would blanch at putting Jay Leno in that group).

And to do this, Howard has opened the archive. Madonna. Paul McCartney. Larry David. Steve Martin. Chris Rock. Steven Colbert. Jay-Z. Lady Gaga. Billy Joel. Gwyneth Paltrow. Bill Murray and yes, even Donald Trump (but more on him later). The sheer scope of Comes Again is massive, akin to a 30-CD boxed set of greatest hits and studio outtakes. The book’s ambition is so broad, A-list celebrities like Bradley Cooper, Jennifer Lawrence, and Quentin Tarantino, among MANY others, are relegated to fragmented blurbs within larger chapters about relationships, money and fame, and religion and spirituality. 

As he has gotten on in years, Howard’s show has become a safe space for performers who want to share details of their personal lives knowing that Howard will respect a line if it is drawn. To his credit, Stern acknowledges the value that concession has provided. Whereas early in his career, he squandered rare chances to interview famous people like John Kennedy, Jr., as Howard evolved as a person and a performer, he recognized that blunt force and confrontation were not the way to a guest’s heart. The evolution was such that someone like Michael J. Fox not only felt comfortable coming on the show, but was willing to make light of how Parkinson’s turned his hand into an involuntary vibrator when he masturbates. In other interviews, celebrities speak about their mental health challenges (Lena Dunham), drug use (Drew Barrymore), addiction (Slash), recovery (Marilyn Manson), relapse (Scott Weiland), and yes, even their sex lives (basically, everyone), but Howard handles these topics not as opportunities for ridicule or shaming, but as part of the human condition, the struggle all of us go through.

Stern is also a student of entertainment history. He wants to understand how artists ply their craft, so his questions probe how stand ups write their jokes, how actors pick and choose roles, and how they continued to push forward even when it looked like success would never arrive. Howard also delves into backstories with commendable research that shows he has taken the time to prepare beforehand. In doing so, he employs tactics well known to lawyers. He repeats back answers and builds on those statements to form his follow-up questions. He is attuned to small admissions and keeps digging until he gets to a bigger truth. He engages in what we like to call active listening. He is present in the conversation.

Something else that is present is the shadow of Donald Trump, whose two-decade history with the show is feathered throughout the book. On one level, this thread can be seen as a way for Howard to say: “He was who you thought he was – bombastic, self-aggrandizing, and thin-skinned – and I saw it long before anyone else” (a chapter on an abortive attempt to get Hillary Clinton to appear on the Stern Show in 2016 is a historical curiosity, an interesting “what if” Howard naturally believes would have moved the needle, but is impossible to prove). Like Trump, Stern is a master marketer, but whereas Trump leaned into braggadocio that did not hold up under scrutiny, Stern’s self-appellation as the King of All Media at least has some merit. While he will never be an EGOT winner, Stern’s media success has included books, music (soundtrack), television, and movies in addition to his reign atop broadcast and now satellite radio. It is as impressive a career as one could imagine, except that because it was built on prurience, Stern never felt like he got his due. Comes Again is his way of laying out the case for his greatness.

I also appreciated Howard’s narration, included as prologue to each of the interviews, along with a lengthy introduction; however, Howard inadvertently tagged one of my few criticisms of the book. As he describes, one of the things he did not like about terrestrial radio was the limited amount of time he had with his guests, that the radio station’s need to air commercials stunted the flow of conversation. On Sirius, Howard often goes on for an hour or more with a guest. It is hypnotic and deeply enjoyable, yet for Comes Again he takes those marathon sessions and reduces them down into the bite size form he railed against. It is almost as if he is trying to create the perfect interview – one that has the uninhibited language and content of satellite radio but the brevity of his terrestrial radio days.

In this way, the book feels both bloated and incomplete. Bloated because there is just so much content to get through. It feels like Howard is hitting you over the head, ordering you to acknowledge his manifest skill through the sheer expansiveness of his celebrity guest Rolodex. But the book also feels incomplete because within the interviews are no cues advising the reader where the conversation has been edited. Comes Again would have been better served by narrowing its interview selections but lengthening each one. Howard has often said he tries to keep things moving because he fears the audience is getting bored, but as someone who has sat in rapt attention for long periods of time, a lot of that immersive experience is lost in the book. It is the interviewing equivalent of the three-minute radio edit of Stairway to Heaven or Light My Fire.

Comes Again also feels like a valedictory. Howard’s contract with Sirius is up at the end of 2020 and while Stern has treated every approaching renewal deadline as an opportunity to muse about retirement, this time it may happen. Howard will turn 67 just after the end of his current deal and has nothing left to accomplish in the business. In an interview with Jerry Seinfeld included in the book, the two talk about going out on top, of leaving on a high note and with the audience wanting more. It was in the context of Seinfeld’s decision to turn down more than $100 million for a tenth season of his eponymous TV show, but the same could apply to Stern too. He dominated terrestrial radio, made a successful transition to satellite, has wealth, happiness, and a fan base that stretches from people collecting Social Security to teenagers who were born after 9/11. What more is there to prove?  

So, is Comes Again a testament to Howard’s evolution from the emcee of Butt Bongo Fiesta to an empathetic shoulder-to-cry-on for celebrities or a cynical ploy to renounce the behavior that made him rich and famous in favor of being portrayed as a wizened elder statesman of show business? As with everything in Howard’s world, the truth likely lies somewhere in between. The point, as it has always has been, is that people keep listening.

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My Howard Stern Show Reunion

In 2013, I went through a painful break-up. No, I’m not talking about divorcing my ex-wife or having my heart broken by Special Lady Friend. This separation was with someone who had been in my ear for the better part of 25 years. When I traded in my Sirius-equipped Honda for a not-Sirius-equipped Toyota, for the first time since I was 18, Howard Stern was no longer a part of my everyday life. 

I started listening to Howard on WYSP in 1988 when I was a college student in the Philadelphia-area, continued on WJFK when I returned to D.C. after graduation, and back to YSP when I moved to New Jersey in the early 2000s. He, Robin, Fred, Gary, Jackie, Artie, Stuttering John, and the rest of the crew were as much family as my own flesh and blood.

Like a lot of long-term relationships, this one had plenty of good times, especially when Howard moved to Sirius in 2006. I would listen before work then leave for lunch just as the West Coast feed picked up where the live feed ended. I would listen on the weekends, on road trips, and when I was out running errands. I posted regularly on the Stern Fan Network and rose and fell with every shenanigan and antic the gang got into. 

But as the years wore on, I became disaffected. Some of it had to do with Artie’s decline and departure, some of it with the direction the show took after he left, and some of it was with what I perceived to be Howard’s own boredom. As I noted in a 2012 blog post, the show was losing its way, relying on canned fights, constant rehashing of topics, too few guests, and Howard’s endless shilling for America’s Got Talent. So, when it came time to get a new car, I was ready to move on. 

Like losing any close friend (or family member), it took a while to adjust. I pretty much quit cold turkey, no longer posted on SFN, stopped reading MarksFriggin.com, and unfollowed show members on Twitter. I found other outlets, be it public radio, podcasts, or my iTunes library. Eventually, I moved on. But last summer, I was in a bad car accident. My Toyota was totaled and while I was shopping for a new car, I had a loaner equipped with Sirius. I decided to check in with my old pal Howard. I am glad I did. To be sure, there have been some cosmetic changes, but the show itself, and Howard in particular, sounded great. Catching up on the show felt easy and comfortable. I so enjoyed the experience, I decided to buy a car that had Sirius, and I am very happy I did. While the show is not at the level it was in any of its heydays, it is focused, compelling, and enormously entertaining. 

The first thing I noticed was a lightness in Howard’s voice. While he can still go off on a righteous rant, it seems as if Howard has made peace with much of once made him a tortured man. He no longer feels the need to defend his truncated schedule, lengthy vacations or his marriage (although he did blow a fuse over a recent story claiming it was on the rocks based on an off-hand remark he made on air). He has outlasted many of the villains who long-animated his anger - Imus and Leno have retired; Les Moonves resigned in shame (a fact Howard took particular glee in mocking); and SiriusXM survived its near-death bankruptcy to become an established player in the media world. In short, Howard won. He outlasted his enemies and proved them all wrong. He now sits on a mountain of money, professional acclaim, and contentment that he fought his entire career to obtain. 

And perhaps it is because of this that where once Howard fancied himself a circus ringleader, he now operates more like a pater familias, presiding over a sometimes unruly clan without the need to constantly be the center of attention. Jason Kaplan reigns as the master of tossing people under the bus. JD fumbles for words even as he has evolved from a mush mouth to a married man and wine connoiser. Ronnie has refined his Dirty Grandpa shtick to the point I laugh more than cringe, and while Gary remains an obvious target for ridicule and Howard’s “boff” impression remains laugh-out-loud funny, much of the sting is gone, replaced with affection. Gary has been with Howard for more than 30 years and the material he has helped produce now fuels a new generation of inside jokes like the hashtag “top noine” moments from the week’s shows.  

And Howard has not shied away from extending the family outward. Callers like Bobo and Marianne From Brooklyn are more deeply woven into the show’s tapestry; one wonders whether they are on salary. And nowhere is Howard’s openness toward using talent wherever he can find it on display more than the greater use of the savant Sour Shoes, whose impressions, deep show knowledge, and unique sense of comedic timing has left me crying with laughter many times. 

But beyond the incorporation of new staff members (Brent, Memet) and the deepening of the audience’s bond with others (once 20somethings like Will are now parents, as is Richard Christie), Howard continues to flex his muscles as an unparalleled interviewer. For as much as Howard loves to talk, one of his under appreciated skills is how much he listens. A recent interview with Peter Frampton contained an extended discussion of Frampton’s relationship with David Bowie and his experience playing with titans of the music industry on George Harrison’s seminal work This Too Shall Pass. The satellite format provides ample time for conversational space, so a recent interview with Hugh Jackman revealed the fact that he and Howard had spent time hanging out socially, opening a whole different window into the lives of each, while Sarah Silverman gave a raw interview that made headlines because of her comments about the disgraced comedian Louis C.K.

It may be that I left Howard in a transitional phase. Like Neil Young (one of Howard’s favorite musicians), the Stern Show is ever-evolving. Given time, he figured out what the next chapter in the show’s history would be. The one thing Howard’s critics always missed was his intuitive understanding for radio as a medium—as “theater of the mind”—Howard perfected a talent that was aptly captured in his movie Private Parts. People who like him listen for a long time, but people who do not like him listen even longer, the reason being the same—they want to hear what he will say next. Howard is a dexterous talker who can stretch, vamp, be controversial, or conversational depending on what the situation requires and his sharing of personal aspects of his life leaven him just enough that you forget it is a fictionalized, or at least, shaded version of the truth. With less to prove, there is more for Howard to share, be it his passion for art (initially photography, now painting) or his later-in-life conversation to animal rescue (thanks to his wife Beth). 

To be sure, the show retains some of its familiar parts. The phony phone calls, the staff fights, the Wack Pack, and the gimmicky segments that feel like nothing more than product development for the Sirius App (one thing that has not changed is the grab for more of your money - first it was Howard TV, now it’s the Sirius App). Even so, some things are different. Certain words like faggot and retard have rightly been excised from the show’s lexicon, the programming has been streamlined (Bubba and Ferrell are long gone, the side projects like Geek Time have been largely jettisoned (sadly, Ralph is still around), Howard 101 basically exists as a channel for the show’s more than four decades of archived material), and the show now starts at 7 a.m. (and thankfully, without Benjy in the studio).  

One thing that has not changed is the beating heart of the show - the interplay between Howard, Fred, and Robin. The trio has broadcast together for nearly 40 years (Stern and Norris go back even further) and the effortlessness of their conversation is truly comfort food for the soul. Whether it is Howard doing an Elvis meets Nixon riff or offhandedly mentioning he once knew a guy who left a good job to go “punch up scripts in Hollywood” (a deep cut reference to long-departed Jackie “the Joke Man” Martling’s alleged reason for leaving the show) listening to Howard and Robin just talk to each other is radio gold, whether it is during her news segments or when Howard brings up a topic to discuss, she is the first among equals - the one person who will immediately call him on his bullshit and also defend herself when old scabs like her ordering of an $800 bottle of wine get picked. Fred remains the steady bass line, his on-air voice spoken through the drops he slips into Robin’s news stories or Howard’s riffs, showing his own touch-feel for the comedic vibe Howard is going for at any given time. It is like listening to a band so tight and so in sync, they know the notes each will play beforehand. It is a marvel to behold. 

As for me, because I am not listening with the same level of obsessive attention I once did, I can enjoy the show without being as hyper-critical of it as I once was. To extend the relationship metaphor a bit further, I know the flaws, but they are far outweighed by the pleasure I get from hearing Howard and the crew do their thing.  

How long this will continue is an open question. Howard’s contract runs through the end of 2020 and he openly muses about retirement. If he does, no one can begrudge him that right. He has created a body of work that is unparalleled in the industry, his influence now reaching a generation of broadcasters that were not even alive when he first rose to prominence. His legacy will live on through the hundreds of thousands of hours of content he has produced. My own sense is he will sign a final contract, perhaps of a shorter duration, take his well-earned victory lap, and then ride off into the sunset. I will be with him every step of the way.

Follow me on Twitter - @scarylawyerguy 

Shocking, Vulgar, and Indisuptably True

So said Tucker Carlson, who related a story about Donald Trump. Way back when, Tucker insulted Trump’s hair and Trump left a message for Carlson to the effect of “you may have better hair than me, but I get more pussy than you.” Shocking. Vulgar. Indisputably True (per Carlson).

 

While I agree with none of Carlson’s politics, his pithy summation of Trump’s ability to zero in on someone and level them with a withering insult is what has dispatched each and every one of his competitors during this election cycle. George W. Bush may have had a false cowboy’s swagger, but Trump is an unabashed, in your face, New York bully. Jeb Bush? Low Energy. Ted Cruz? Born in Canada. Hillary Clinton? No lectures about women from someone married to Bill Clinton. Fox News? You need me more than I need you. No one can question the results. Bush went from front-runner to after thought. Cruz has been on a downward trajectory ever since he started tangling with Trump. Bill Clinton’s favorability ratings have sunk and his presence on the campaign trail is very low key. Fox News was left scrambling when Trump pulled out of their most recent debate and was left with egg on its face.  

 

Trump’s criticisms are shocking to the political class and can be vulgar (I am not so sure about the indisputably true part), but in the same way Simon Cowell became a massive celebrity when American Idol first aired because he was rude and cutting in his insults (which usually contained a grain of truth), Trump zeroes in on a flaw and defines the person by it. He is unafraid of the blowback and, if anything, relishes it. He has taken the political playbook everyone is supposed to follow and ignored it. In the balance, he has given voice to a disaffected group in our country who only wish they could, to borrow from a dated 1970s cliché, tell their boss to take this job and shove it.

 

Love him or hate him, he unleashes his opinions without mercy and generates strong opinions. In Howard Stern’s 1997 movie Private Parts there is a scene between two executives at WNBC, the radio station Stern worked at in the mid-1980s. The two had commissioned a survey to understand Stern’s popularity and found that the people that hated Stern listened to the show twice as long as the people who loved him. The reason was the same for both groups - they wanted to hear what he would say next. Trump has mastered that same formula, and every thought piece that insults him, every media outlet that tries to mock him, and every rival who attempts to dethrone him, has no idea what to do about it.   

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Howard Stern Lawsuit - DISMISSED

Earlier this week, New York Supreme Court[1] Judge Kapnick dismissed, with prejudice, Howard Stern’s lawsuit against SiriusXM Radio. Howard filed a lawsuit based on his belief that a performance-based payment clause in his 2004 contract with Sirius required them to pay him up to $300 million based on the company’s reaching certain subscriber numbers.  Howard’s case was predicated on the belief that once Sirius acquired XM, all XM subscribers must now count toward the performance standard because XM became part of Sirius, the company.  Not surprisingly, Sirius argued the opposite – only subscribers to the Sirius service, even after XM was acquired, counted. 

The dismissal, via summary judgment, was a bit of a surprise to me[2], but the judge’s opinion[3] made clear that she found the language of the contract unambiguous – for the purpose of the performance-based clause negotiated by Stern and his agent, Don Buchwald, only subscribers to the Sirius radio service, not the merged SiriusXM company could be counted.  Moreover, she pointed out that the parties included a separate provision that paid Stern $25 million when Sirius and XM merged[4], which, she held, evinced the parties “explicitly distinct treatment of subscribers acquired by merger[5].”  Taken together, the Court concluded that the understanding of the parties at the time the contract was signed and the plain language of the agreement precluded, as a matter of law, the interpretation Stern claimed. 

There’s no way to spin this decision as other than a complete and total win for Sirius.  Even though the Judge’s opinion was brief, just 11 pages, let me answer some questions that you might have and throw out a few random thoughts of my own:

What is Summary Judgment & Why Is It Important?  Summary judgment is often used at the beginning of a case by a party that thinks the lawsuit filed against it is frivolous. It is a concept that says, “even if every single fact the non-moving (i.e., the party that did not file the motion, in this case, Stern and Buchwald) party alleges is true, as a matter of law, you have to rule in our (i.e., the party that filed the motion, in this case, Sirius) favor.” Summary judgment affords the court the opportunity to dismiss meritless cases quickly, and without significant legal cost. 

In this case, to rule in Sirius’s favor required the Judge to look at the October 1, 2004 contract and essentially, nothing else, in making her determination.  That is, Judge Kapnick said that as a matter of law, the language in that Agreement was unambiguous and not subject to more than one interpretation. In fact, because the only interpretation that could be read into the Agreement was that “Sirius Subscribers” meant subscribers to that service, not a merged company that included XM subscribers, none of the performance-based awards Howard sought in the lawsuit were triggered and therefore, the case must be dismissed.

This decision is important for a couple of reasons.  First, in opposition to Sirius’s summary judgment motion, Stern argued that the motion must be denied because the terms of the contract were either plain (in his favor) or ambiguous.  By granting summary judgment to Sirius, Judge Kapnick not only said the terms were plain in Sirius’s favor, but that no fact-finding was necessary to reach her conclusion. In other words, Howard was denied what’s called “discovery,” the phase of a lawsuit where each side must produce non-privileged information and submit witnesses for depositions (sworn pre-trial testimony) to the other regarding the lawsuit and from which, each side constructs its case.  Second, by dismissing the case with prejudice, Howard is precluded from refiling the case utilizing different arguments. 

What Happens If Howard Appeals?  But Scary Lawyer Guy, you say, the case is not over!  Howard said on his radio show that he will appeal the judge’s ruling!  Victory is close at hand.  Not so.  Let’s be clear.  As of right, Howard can appeal; however, because the judge has dismissed Howard’s lawsuit, the best outcome for him at the appellate level is for the court to overturn the trial court’s decision to dismiss the case and allow it to proceed.  That is, the appellate court would be saying the contract’s terms are not unambiguous and discovery must occur.  Because Stern did not file his own motion for summary judgment, the appellate court cannot rule on the underlying merit of his complaint – i.e., that the contract is unambiguous in his favor.  On the other hand, if the appellate court upholds the trial court ruling, the dismissal with prejudice will hold and the case will go away forever. 

How Long Will The Appeal Take?  It will likely take a minimum of 9-12 months for the appellate process to unfold.  First, Howard’s team will file a notice of their intent to appeal, followed by submission of a legal brief explaining why the trial court erred.  Sirius will file its brief (court rules vary state-to-state, but I’m guessing 45 days after Howard’s brief is filed) explaining why the trial court should be upheld.  It is possible, though I do not know the New York court rules, that Howard’s team will get a chance to submit a reply (or rebuttal) brief within 10-15 days after Sirius’s submission. After all that is done, the Court will set an oral argument date, which is usually several months later.  Oral argument will occur and then, well, we wait.  Appellate courts do not issue rulings the same day as oral argument and they are under no time restriction for when an opinion must be issued.  It could take a few weeks, it could take a few months, it is totally up to them.

When Will This All Go Away & Allow Me To Stop Reading Your Blog? Good question. Howard could choose not to appeal and the lawsuit will be over.  If he does appeal, the parties could still hammer out a settlement under the theory that Sirius would carry some minor litigation risk if it lost at the appellate level and the case was remanded to the trial court; however, I do not think that is likely.  With a dismissal at the summary judgment stage in its hand, Sirius’s negotiating position is strong and they have little incentive to pay anything to Howard at this point.  If the parties go through the appellate process, see above.  Even if the appellate court rules in Sirius’s favor, that won’t happen until late this year or 2013. 

If Howard wins and the case is remanded, you may see more meaningful settlement discussion because we now know Sirius’s downside risk is more than $300 million.  Of course, the trial court has already tipped its hand on the merits of Howard’s lawsuit.  What is also important to note is that while Stern supporters may think discovery would unveil some “smoking gun” document, if such a document existed, it would have likely been produced by now.  That is to say, Howard’s team would have led with more persuasive documentary evidence for its case than some 10-K filings and press releases and/or Sirius would have done the same.  Moreover, if Sirius knew that documentary evidence existed supporting Howard’s position, they would not have stiffed him on the performance payment in the first place. In short, we can reasonably surmise that no contemporaneous notes, emails or documents exist showing the parties contemplated counting potential merged subscribers as part of the contract, leaving Howard, if he is able to resuscitate his case through a successful appeal, opting to continue spending a lot of money on lawyers on a case he is unlikely to win. At that point, he may take a slice of the loaf and hope that Sirius might agree to pay legal fees and some modest settlement amount, but I would not count on it (good thing he’s got that AGT money rolling in now!).

Anything Else?  I would still encourage people to get the facts about the lawsuit, which you can do be accessing all of the electronic records filed in this case.  I’ve listened to Howard for almost 25 years and enjoy him immensely as an entertainer; however, it’s also important to not get sucked in by the spin and slant he provides.  In his view, the Agreement is clear, but if you read it, as I did, you will find that not to be the case.  He never publicly mentioned the $25 million merger payment he received until after the court issued its ruling and then, as I mentioned above, gave an entirely different explanation for that clause than what his lawyers said in their court filings.  From an equity perspective, it is also difficult to feel sorry for Howard.  He was paid (literally) hundreds of millions of (well earned) dollars; however, if his agent inserted a bad, or inartfully written clause into his contract, he should blame his agent, not his employer. Howard is about to experience a mainstream rebirth when America’s Got Talent premieres with him as a judge.  If I were him, I would stop trying to squeeze money from my employer and be content with the riches that have already been showered on me and the acclaim from a whole new platform I am about to receive. 

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[1]   In New York, state trial court is referred to as “the Supreme Court.”

[2]   My full analysis of the lawsuit can be found at: http://scarylawyerguy.blogspot.com/2011/11/breaking-down-stern-v-siriusxm.html)

[3] http://www.scribd.com/fullscreen/89702610?access_key=key-1hd80gybcqxz0jnwedj0 or

https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=JIDUU1614fTcaMd0kHhotw==&system=prod

[4]   After the Judge rendered her decision, Howard claimed on his radio show that the merger provision was inserted for his protection in the event XM acquired Sirius and sought to terminate his employment.  In the legal filings, he argued that the purpose of the merger clause was to defer some of his compensation so the financial hit to Sirius was not as hard when he signed. Judge’s Opinion at 8.

[5]  Opinion at p. 11.