NEW YORK — Broadcasters say the hesitancy of some CBS affiliates to air a powerful Sept. 11 documentary next week proves there's been a chilling effect on the First Amendment since federal regulators boosted penalties for television obscenities after Janet Jackson's breast was exposed at a Super Bowl halftime show.
"This is example No. 1," said Martin Franks, executive vice president of CBS Corp., of the decision by two dozen CBS affiliates to replace or delay "9/11" — which has already aired twice without controversy — over concerns about some of the language used by the firefighters in it.
"We don't think it's appropriate to sanitize the reality of the hell of Sept. 11th," Franks said. "It shows the incredible stress that these heroes were under. To sanitize it in some way robs it of the horror they faced."
Actor Robert De Niro hosts the award-winning documentary, which began as a quest to follow a rookie firefighter on an ordinary day but resulted in the only known video of the first plane striking the World Trade Center and horrific and inspiring scenes of rescue, escape and death. CBS will show it on Sept. 10 from 8 p.m. to 10 p.m. EDT, profanity intact.
Carter G. Phillips, a lawyer for Fox Television Stations Inc., cited the decision by several CBS affiliates to replace the documentary or show it after 10 p.m., the time at which the Federal Communications Commission loosens restrictions, when he spoke last week to the 2nd U.S. Circuit Court of Appeals in Manhattan.
Phillips addressed the court as part of a hearing on whether the FCC had rushed to judgment in concluding that "NYPD Blue" and three other programs violated decency rules.
Saying the FCC was chilling free speech, Phillips mentioned the documentary to show the court how timid broadcast companies had become since the FCC toughened its position toward profanities after the 2004 Super Bowl halftime show on CBS, in which Jackson's breast was briefly bared.
Congress recently boosted the maximum fines the FCC can impose for indecency from $32,500 to $325,000.
So far, about a dozen CBS affiliates have indicated they won't show the documentary, another dozen say they will delay it until later at night and two dozen others are considering what to do.
On Sept. 1, Sinclair Broadcasting became the latest company to say it was delaying the broadcast until after 10 p.m. on its stations in Cedar Rapids, Iowa, and Portland, Maine, saying it was concerned it could face fines.
The announcement came as the Tupelo, Miss.-based American Family Association readied its 3 million members to flood the FCC and CBS with complaints after the documentary airs.
"This isn't an issue of censorship. It's an issue of responsibility to the public," said Randy Sharp, director of special projects for the group, which describes itself as a 29-year-old organization that promotes the biblical ethic of decency.
The documentary first aired on the six-month and one-year anniversaries of the Sept. 11 attacks on the trade center and the Pentagon. This latest showing, on the eve of the five-year anniversary, includes new interviews with many of the firefighters featured in the original, describing how their lives have changed.
Franks said it was an easy decision not to edit the language in the documentary, especially in that it has won a George Foster Peabody Award, among others. "It was a much more difficult decision five years ago when the emotions were much more raw and fresh," he said.
It seems "dishonest somehow" for the network to cover up the real language five years later because of the current regulatory environment, Franks said. However, he said he understood the difficulties of small stations that fear the huge FCC fines. "We're not twisting arms," he said.
FCC spokeswoman Tamara Lipper said the commission routinely takes context into account in any decency analysis.
"We don't police the airwaves. We respond to viewer complaints," Lipper said. "We haven't seen the broadcast in question. It's up to individual stations to decide what they should air or not air."
She noted that "the historical context of 9/11 is important to the context of the broadcast" but said she could not predict how the commission might view the show if it receives complaints.
Sharp promised on Sept. 1 that his organization would flood the FCC with complaints, saying nearly 198,000 people already had told the FCC they want the agency to "enforce the law should CBS decide to break it."
CBS is feeling the heat. "Even if all 206 stations decide between now and the 10th to air the program live, what we have gone through for the past two or three weeks is overwhelming evidence of the chill facing broadcasters," Franks said.