This is a partial transcript from "The O'Reilly Factor," May 5, 2004 that has been edited for clarity.

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BILL O'REILLY HOST: In the "Personal Story" segment tonight, as you may know, radio personality Howard Stern is furious that he is being punished by the FCC for indecent comments.  In response Stern has urged his listeners to complain about Oprah Winfrey who apparently has also discussed very explicit sexual activity on her program.


OPRAH WINFREY, TV HOST:  So what is a salad?

UNIDENTIFIED FEMALE:  OK, a tossed salad is, get ready, hold on to your underwear for this one, oral anal sex.  A rainbow party is an oral sex party, it's a gathering where oral sex is performed, and rainbow comes from all of the girls put on lip stick and each one puts her mouth around the penis of the gentleman or gentlemen who are there to receive favors and makes a mark in a different place on the penis, hence the term, rainbow.


O'REILLY:  All right.  Does Stern have a point here as Ms. Winfrey has not been sanctioned by the FCC?  Joining us now from Boston is Dr. Tobe Berkovitz, the assistant -- associate dean of BU's School of Communications.  And from Indianapolis, Dr. Jeff McCall, who teaches communications at DePaul University.

Dr. McCall, begin with you, how do you see it?

JEFF MCCALL, DEPAUL UNIVERSITY:  Well, I don't think there is any comparison between what Howard Stern is doing and Oprah Winfrey is doing.  When the FCC rules on indecency, they are considering several things.  One is how graphic and explicit the material is, whether they dwell and repeat the offensive material, and also whether the material is intended to shock or pander.

I don't think you can make any case that Oprah Winfrey is trying to shock or pander or that she's repeating and dwelling, or that she's presenting -- well, it might be a little graphic, but I don't think it crosses that line in the same way that a Howard Stern program would.

O'REILLY:  All right, I can make the case, Doctor, Oprah Winfrey is a very successful woman who is very shrewd about what she puts on the air.  And this segment, while informational, all right, telling parents, and you saw the cutaway of a parent who didn't know these things, what is happening in some circumstances, on under-aged parties, certainly, certainly, the way they vet guests at Oprah's program, and I know how they do it, I worked for KingWorld, her parent company, she knew what was going to be said and the explicit nature of how the woman phrased it all was going to be shocking, and she did it anyway, Doctor.  So...

MCCALL:  Well, sure.

O'REILLY:  You know, you can make a case that she is using that kind of scenario subject and explicit language to get ratings.

MCCALL:  Well, I agree that Oprah's program probably could have found more decorous ways to approach this subject.  On the other hand, her program deals with a variety of social issues and I think it is designed to be informative and educational for the kinds of people who watch Oprah's program.  And I don't think...

O'REILLY:  Can you -- but it is designed to be informative...

MCCALL:  ... that they were trying to make humor out of it or anything like that.

O'REILLY:  But when you say it is designed to be informative and informational, you are not talking about PBS here.  She is a shrewd woman who does a lot of sexuality in order to get ratings.  Am I wrong here, professor Berkovitz?

TOBE BERKOVITZ PH.D, BU SCHOOL OF COMMUNICATION:  Well, I do think that there's a double standard.  There is certainly a difference overall between Oprah's program and Howard Stern.  But the fact is...

O'REILLY:  What is the difference?  Define that difference.

BERKOVITZ:  The difference is that Oprah Winfrey has a program targeted to women in the afternoon.  I think her mission, as she sees it, is to educate, to bring ideas before the public.  Howard Stern's audience tends to be men between the ages of 18 and 35, and he is a shock jock and he is playing to his audience just like Oprah plays to hers.   But I think...

O'REILLY:  OK.  But wait a minute, wait a minute, wait.


O'REILLY:  Professor, I have got to stop you here.  Look, you just said that the two individuals have different audiences, but they are on at a time when any child can hear this who is around and has access to the television.  All right?

BERKOVITZ:  And I'm not going to argue that.  And in fact, if you look at the indecency case a long time ago, seven dirty words that started all of this, in fact, the case is built on that you don't want to reach impressionable minds.  And the fact is a 10-year-old could be watching Oprah in the afternoon as easily as the 10-year-old could be...

O'REILLY:  That's right.  The only difference I see...

BERKOVITZ:  ... watching -- or listening to Howard Stern.

O'REILLY:  Professor, the only difference in this, is that Ms. Winfrey uses the sexuality to provide information that parents might act upon in their day-to-day life.  But she uses sexuality, she knows it's going to be strong sexual content.  Stern uses sexuality purely to make fun of people and in a humorous way.  He sees sex as funny.  All right?

BERKOVITZ:  And I agree, I agree with you.  My...

O'REILLY:  So what is the difference from the FCC's point of view?  One is using sex to inform parents about their kids may or may or not be doing, the other is using sex to be funny, but it is still the same sex, it's still the same acts.

BERKOVITZ:  And I agree with you.  So these children who could hear these words, they could still repeat them, whether it's hearing the word once or twice on Oprah's program or multiple time on Howard Stern's, I think the FCC, their mission is to protect children from then going on and saying these things.  So I agree with...

O'REILLY:  So would you have sanctioned Oprah for this kind of a display, sir?

BERKOVITZ:  I wouldn't sanction either of them because I believe in a marketplace of ideas and free speech.  And I think that to me the Constitution and the First Amendment is more important than indecency...

O'REILLY:  All right, fine, but you wouldn't allow somebody to go on and say the F-word 15 times on broadcast TV, would you?

BERKOVITZ:  Probably not.  But...

O'REILLY:  You know, there have to be some kind of standards.  All right, now, Dr.  McCall, obviously you would sanction Stern but not sanction Oprah, and I'm still not getting why.

MCCALL:  Well, context is everything.  And by the way, the FCC issued a policy -- a brief in 2001 that I think should really serve as a guide for us here.  And in fact, an Oprah program from the 1990s was used as an example of an opportunity to discuss mature material but that was not considered to be indecent by the FCC.  I think the big difference is context.  Are we trying to discuss in a rational, sensible way mature issues, or are we trying to have a big laugh, a big joke and talk dirty like we are behind the middle school...

O'REILLY:  All right, what I'm getting from you, Doctor, are the words social redeeming quality.  All right?  That if you do the kind of explicit stuff Ms. Winfrey does, and there is some kind of benefit from it, it is OK.  But if you just do it like Stern does, and the only benefit is a nice laugh by some people in the morning, there's no social benefit.  Is that what you are saying?

MCCALL:  I think there's a big difference, yes.

O'REILLY:  All right, how about you, Professor?  You wrap it up for us.  Is it the social redeeming quality aspect of this?

BERKOVITZ:  There is a big difference between the two and Oprah has the intention of trying to educate.  But my point is that if you believe in the First Amendment, it should be free and open expression, and in the marketplace, not the FCC should decide...

O'REILLY:  Got to have standards, Professor, you can't be having somebody coming on broadcast television, which is owned by the public, using a certain level of -- you got have to have some standards.  You just have to.  All right.  Gentlemen, thanks very much, very interesting topic.  It will be interesting to see the e-mail tomorrow on it.

SNOW: Allan Lichtman, thanks so much.

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