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Censorship in the name of decency?

By Gene Policinski
First Amendment Center executive director
09.05.06

Indecency on TV is a hot topic among both federal regulators and television’s critics, and, the polls have told us for several years, among at least an energized segment of viewers.

Congress has boosted broadcasters fines from so-called pocket change into the venue of real money — from $32,500 to $325,000 per “incident” — and there is evidence that the threat of such fines, along viewer pressure, has resulted in greater attention to content by the television executives as well as now matter-of-course defensive tactics like time-delay editing on live events.

The value and impact of such attention and technical tricks are yet to be fully measured.

But in a repeat of the fretting phenomenon that surfaced some time ago during re-airings of the gripping war drama “Saving Private Ryan,” the Associated Press reports some CBS affiliates now are hesitant to show a documentary titled “9/11” because of the language of some firefighters filmed at the time of the tragedy.

AP reports that the documentary began as a film tracking a rookie firefighter on an ordinary day but resulted in the only known video of the first plane striking the World Trade Center. CBS will show it on Sept. 10 from 8 p.m. to 10 p.m. EDT.

Surely viewers properly warned of the language beforehand ought to be able to decide whether this is speech they freely want to hear or speech that they do not want to hear, in which case they can simply switch the channel or turn off their televisions.

War is a bloody hell, and “Private Ryan” brought home the terror and anguish, as well as the heroics and sacrifices, of the heralds of the “greatest generation” who stormed ashore at Normandy in a manner no sanitized depiction had done previously. Who can view any veteran of that invasion in the same manner after seeing that film?

Five years ago, the nation saw — via a free and unfettered press, protected by the First Amendment from government control — the events of 9/11 unfold “live.”

We have used those images and information and years of news, information and opinion that have followed to make our own decisions on how best to respond … and to assess how well or poorly our government responded to that awful day’s attacks in New York, Washington, D.C., and Pennsylvania.

“Journalism is the rough draft of history” is a quote attributed to journalist Philip Graham in the annual First Amendment Calendar’s collection of sayings about the press.

Should we — with the FCC as our tool — screen out the next generation of more-polished reports about Sept. 11, 2001, because the language at the time of firefighters facing the death of thousands, including friends and colleagues, may offend some?

Should local television station managers fear heavy fines and the heavy hand of government when they chose to air “real” reality over the saccharine silliness of “reality programming” in which hand-picked contestants vie for pecuniary prizes in vacuous contests?

Some years ago, Supreme Court Justice Potter Stewart grappled with the difficulty of defining pornography, noting while a precise legal definition was elusive, “I know it when I see it.”

Viewers of all philosophies about television programming also likely will know indecent matter — by their own definition — on TV when they see it, be it swear words, sexual situations or unveiled body parts. As a nation, we are engaged in a debate about whether the response to such programming should be government action in the form of fines or license challenges, or viewer activism in the form of notes to advertisers, dropped cable subscriptions or just a ready finger on the remote.

But should government — or viewers, for that matter — silence important, compelling speech about the major events of our time in the same manner as they might punish broadcasters or switch programs as a result of what they see as gratuitous words, violence or sexual imagery?

Yet another tragedy of 9/11 would be blocking the free and open discussion of that day’s events and the nation’s response to it because we feel offended by an honest portrayal of that day.

Whether firefighters swore as thousands died and a nation recoiled in horror seems so minimal a concern as we all grapple with the ongoing war on terror that is the five-year legacy of Sept. 11. Certainly it pales against the need for an informed citizenry in a democracy to know — and sometimes fully experience — the reality of events around them.

Shouldn’t we all join Justice Stewart in knowing that when we see it?

In other news …

New information and analysis on the First Amendment Center Online includes:

  • Spying as a form of censorship: Paul McMasters says free speech stands at risk when surveillance programs are formulated without careful attention to balancing the good done for security against the harm done to liberty.

  • Mixing God and politics: Where do Americans really stand? Charles Haynes writes on a new survey showing Americans feel both conservative Christians and liberals have gone too far in trying to push religion into or out of public life.

  • As confrontation stews between the press and the Bush administration over the role of journalists and the 1917 Espionage Act, find an update and links to information about the situation in AIPAC, Espionage Act and First Amendment, by Ron Collins. See the related links.
  • Comment? E-mail me.


    Update
    5 years later, we must reflect on our freedoms
    By Gene Policinski How we respond to those 3,000 tragic deaths, and to our soul-searching about fundamental liberties, will be nation’s legacy from Sept. 11, 2001. 09.11.06

    Previous
    Good news in judge's fantasy-league ruling
    By Gene Policinski Decision that Major League Baseball, players don't 'own' stats or names endorses free flow of information. 08.11.06

    Related

    'Saving Private Ryan' not indecent, FCC rules

    ABC's airing of war film had prompted complaints; 66 affiliates didn't broadcast it, fearing accusations that it was indecent, though commissioners had already ruled it was not. 03.01.05

    Bush signs broadcast-decency law
    Large increase in fines will force broadcasters to 'take seriously their duty to keep the public airwaves free of obscene, profane and indecent material,' president says. 06.16.06

    Some stations hesitate to air 9/11 documentary
    CBS affiliates wary of possible fines over firefighters' foul language as decency group vows to flood FCC with complaints. 09.05.06

    ABC defends 9/11 miniseries after Clinton officials object
    Senate Democrats join clamor over 'The Path to 9/11,' asking that broadcast be canceled; network says criticisms are 'premature and irresponsible.' 09.08.06

    2nd Circuit halts enforcement of tougher FCC indecency rules
    Court also grants commission's request for additional two months to review its finding that 'NYPD Blue,' three other TV shows violated indecency guidelines. 09.08.06

    2nd Circuit takes up broadcast-indecency case
    Broadcasters are to argue today that the FCC has instituted new, inconsistent and unconstitutional rules on use of profanity. 12.20.06

    Appeals judges grill FCC lawyer over profanity rules
    Government attorney surprised some when he said news programs could broadcast yesterday's profanity-laced hearing without penalty. 12.21.06

    Oregon PBS stations to air disputed documentary about Islam
    Producers had claimed 'Islam vs. Islamists: Voices From the Muslim Center' was held up due to liberal bias. 05.30.07

    2nd Circuit: FCC's policy on accidental expletives is arbitrary
    Court sides with Fox TV's challenge, says agency's policy might not survive First Amendment scrutiny. 06.05.07

    Insidious censorship: equating violence, indecency
    By Craig R. Smith FCC draft report argues violent programming could be regulated without violating Constitution — but evidence doesn't support thesis that pretend violence causes real violence. 03.01.07

    TV violence: more program information would be better than regulation
    By Gene Policinski Just as with judging sexual imagery and utterances that may be indecent, there are practical problems in defining what depictions of violence cross the line. 05.06.07

    First Amendment Watch blog with Gene Policinski


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