What, Me Censor?

Julian Sanchez | November 11, 2004

As Nick notes below, some 20 ABC affiliates have been spooked by the FCC into nixing a Veterans Day airing of Saving Private Ryan. I spotted a particularly choice quotation from one FCC spokesperson in the AP report on that decision:

Janice Wise, spokeswoman for the FCC's enforcement bureau, told The Hollywood Reporter the agency had received calls from broadcasters asking if the film would run afoul of the rules. Wise said the commission was barred from making a prebroadcast decision "because that would be censorship."

"If we get a complaint, we'll act on it," she said.

See, they don't want to censor anybody, heavens no. So, in effect, they say: "Take your chances; we'll only tell you after the fact whether something you've aired will garner you a hefty fine." If, in light of that uncertainty, stations opt not to take any chances, well, the FCC can always say that was the stations' choice: They weren't "censoring" anybody.

Comments

|11.11.04 @ 4:15PM|#

There is actually something to be said for not acting unless there's a complaint. Still, it might be helpful if there were some advance decision as to which types of complaints will be acted upon.

Hmm, I seem to recall that in the 1790's some long-haired radicals were running the government. They came up with a guideline as to which complaints the federal government would act upon if somebody alleged that some speech was offensive. I could be wrong, but I believe their precise answer was "none."

|11.11.04 @ 4:20PM|#

Oh, I forgot to add that obviously John Kerry would be much worse, lest anybody think I'm singling out our Dear Leader's FCC policies for special contempt.

|11.11.04 @ 4:25PM|#

From the post: "So, in effect, they say: 'Take your chances; we'll only tell you after the fact whether something you've aired will garner you a hefty fine.'"

If the FCC said in advance that the airing of the movie would be improper that would be "prior restraint". Historically, the First Amendment was only viewed to guard against such censorship. (And some conservative constitutional law scholars would like to return to that.)

|11.11.04 @ 4:27PM|#

Actually, I was much worse!

|11.11.04 @ 4:34PM|#

You are ignoring the fact that the movie was already run (uncut) in 2001, there were complaints to the FCC, and nothing came of them.

|11.11.04 @ 4:34PM|#

Does anyone else feel like this is so much posturing from ABC? I mean, this whole 'controversy' feels so manufactured. It's like they are saying, "Well, gezz - we'd love to show you NASCAR Dads and Security Moms this gut wrenching portrayal of American heroism, but the big bad FCC doesn't want you to see it."

Funny how there is potential overlap among people who celebrate Veterans Day (i.e. conservative military families) and the same sort of folks who would be the first to complain about Janet's breast.

|11.11.04 @ 4:47PM|#

Posturing? Um, yeah. Never send a man to do a law professor's job, so: here.

Return to Mayberry, indeed.

Anyway, I don't see the money in the quote. As others have alluded, the spokesperson's only other alternative answer was "sure, we'll let them know in advance whether they can show it or not," and once they say that, there's no question they're engaging in censorship. The FCC is a dumb idea, but I don't think this is a particularly good illustration of why.

|11.11.04 @ 5:01PM|#

Will-I celebrate Veteran's Day. I am, in fact, a veteran. I am not a conservative, nor do I favor censorship of any sort.(Or the current war, for that matter.)

Put the broad brush away, please.

|11.11.04 @ 5:13PM|#

Good for the affiliates to manufacture this little drama. The only way to get people to notice what the FCC does to free speach is for the broadcasters to each get a spine. Short of that, they can at least be sneaky and do stuff like this. I think it's in every broadcasters' best interest to manufacture something like this on a regular basis.

With any luck, someone will complain to the FCC, and they'll fine the ABC affiliates who show the movie.

Xrlq|11.11.04 @ 5:21PM|#

Courts, as well as the FCC, have long regarded prior restraints on free speech as much more constitutionally problematic than after-the-fact remedies. Want to argue against that policy? Fine. But don't take a swipe at the FCC for following that policy in this particular instance. Someone needs to explain to Julian that ignorance and sarcasm don't mix.

Jeff|11.11.04 @ 5:22PM|#

I'm in broadcasting. It has recently been decided that we now have to screen all movies in realtime for content issues. Most of these films are "barter films," which means they are syndicated by distributors as formatted with commercials built in. In the two weeks we've been screening we've found a number of nipples, buttocks, and questioanble dialog in the "cleaned up" versions of Dracula: Dead and Loving It, The Burbs, and Ernest Saves Christmas.
Like doctors dropping out of practice, I foresee local affiliates abandoning the tradition of showing movies on the weekend and overnight. We are already pondering curtailing our movie schedule, leaving us with infomercials and episodes of Coach to air in their wake.
Yeah, we're real fucking happy about it.

|11.11.04 @ 5:26PM|#

OK, I understand that the FCC might be barred by legal precedents from prior restraints on speech. But are there at least some guidelines as to which types of complaints they'll act on? I would think that fines imposed according to the arbitrary whim of a few bureaucrats poses even more Constitutional problems than fines imposed in accordance with previously established guidelines.

(Not to say that previously established guidelines should pass first amendment muster, but at least they might avoid other issues associated with fines imposed by whim.)

|11.11.04 @ 5:47PM|#

Reminds me of a scene from "1984," which I will now paraphrase:

Winston was about to open a diary. This was not illegal (nothing was illegal, since there were no longer any laws), but if he were caught he would probably get 25 years in a labor camp for it.

|11.11.04 @ 5:47PM|#

Apparently, I need to be more explicit: I am, believe it or not, familiar with elementary concepts like "prior restraint" and its special place in law. I'm pointing out that simply leaving broadcasters in the dark about what choices will subject them to significant punishments is unlikely to have a lesser chilling effect. The difference between "we will punish you for publishing X" and "we might very well punish you for publishing X, take your chances" is cosmetic. Depending on the risk averseness of the broadcaster, it could easily end up chilling more speech than prior restraint.

digamma|11.11.04 @ 5:50PM|#

Censorship would be preferable to this.

Pierce|11.11.04 @ 5:52PM|#

Now see, I just read the interview with Micheal Powell from the latest issue of Reason (don't you read your own magazine?).

He would make the following points:

Broadcast is the only medium that the people have chosen to restrict, so its the FCCs job to do so, whether Powell personally agrees or not.
They don't try to define profanity/obscenity, they just respond to complaints, and that's a good thing. That's also how Congress set it up, and that's also a good thing.

I think the real legal status is something like:

Don't do this, but if you do, and no one complains, no problem...

|11.11.04 @ 6:00PM|#

"... be it further enacted, that if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing ... then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years."

"Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both."

So what's the difference between the unconstitutional Sedition Act and the constitutional US Code giving the FCC its powers?

The difference is that television and radio are so powerful that the republic will fall if we allow the broadcast of the scandalous via TV and radio. Remember how the power of radio made us believe in Father Coughlin and we exterminated the Jews and how the power of television made us all want to drink New Coke and we did?

Wait, those things didn't happen.

|11.11.04 @ 6:01PM|#

Jennifer

I confess I thought at first your 1984 reference was a tad overblown.

However I just checked the local ABC affiliate's listings online and they're showing "Network News". A couple of days ago they listed "Saving Private Ryan".

I had my own Winston Smith moment.

|11.11.04 @ 6:02PM|#

Fabius Cunctator

Well said.

|11.11.04 @ 6:06PM|#

Isaac-
I don't literally mean that our country is as bad as Oceania; it's just the fact that having clear-cut laws is actually less oppressive than having no laws at all, but instead being subject to the whims of whoever has the power to fuck with you.

|11.11.04 @ 6:08PM|#

Suppose, for instance, that instead of speed limits, we had a situation where you could get arrested for travelling at a speed which the cop in question felt was "too fast." Which is better?

Robert G|11.11.04 @ 6:16PM|#

Laws are not really the same thing as rules. Laws are supposed to define something bad happening. Is speeding bad? No - crashing is bad. Or driving recklessly is bad. Laws that are really rules become arbitary and worthless.

|11.11.04 @ 6:16PM|#

In the two weeks we've been screening we've found a number of nipples, buttocks, and questioanble dialog

Dang, I'm going to have to start watching the networks again.

|11.11.04 @ 6:22PM|#

Robert-
Yes, but the point as it relates to this thread is that having the FCC come right out and say what can be aired without getting into trouble would be better than what they're doing now--at best, it would result in more freedom that what we currently have, and at worst it would at least force the FCC to admit that it is censoring broadcasters, rather than indulge in its current hypocritical pretense that these stations simply chose not to air "Saving Private Ryan" because they decided, on their own, that "Return to Mayberry" would command higher ratings.

|11.11.04 @ 6:23PM|#

"I don't literally mean that our country is as bad as Oceania;..."

And I don't think a network changing its schedule is the same as the Government of Oceania rewriting history.

Hyperbole is useful though. :)

fyodor|11.11.04 @ 6:30PM|#

I thought the FCC's authority to fine broadcasters for indecent programming was based on the notion that the airwaves were "public" and thus in a sense owned by the government. If that's the case, what would 1st Amendment precedents even have to do with this? It's like they're saying, you don't really have freedom of speech on the public airwaves, but we can't be clear on what you can't say or show because to do so would violate your freedom of speech! What am I missing here?

|11.11.04 @ 6:35PM|#

fyodor

You're looking for logic? :)

|11.11.04 @ 6:44PM|#

I was listening to the local right-wing squawk radio goon this morning and he was going off about how "unpatriotic" it would be for these affliates to refuse to show Saving Private Ryan on Veteran's Day.

Of course, this was the same moron, along with the rest of his audience, who was all up in arms over Janet Jackson and demanding that the FCC "do something!"

|11.11.04 @ 8:30PM|#

I believe this is the broadcast equivalent of the town council that can't raise taxes, so they don't fill potholes! "SEE we need more taxes." So here we have the ABC affiliates trying to point out the "dangers of censorship"..."See when you complain about Janet's boob you lose Private Ryan." Personally, I think the whole thing is silly, not showing Saving Private Ryan. No doubt many here are disposed to the belief that Janet's Boob and Saving Private Ryan are equivalent.

|11.11.04 @ 8:44PM|#

Actually, Montana gave up its "safe and prudent" speed limit on highways after the state Supreme Court ruled it unconstitutionally vague. Which does make sense, since it's a rare bird who will cruise down I-90 thinking, "I am an f'ing moron for risking my life this way."

|11.11.04 @ 8:45PM|#

Seems to me like this quandry is the result you get when you have this kooky notion that the airwaves are owned by "the people"

|11.11.04 @ 9:03PM|#

Jennifer said "... having clear-cut laws is actually less oppressive than having no laws at all, but instead being subject to the whims of whoever has the power to fuck with you...
Suppose, for instance, that instead of speed limits, we had a situation where you could get arrested for travelling at a speed which the cop in question felt was "too fast." Which is better?"

While I agree in priniple, cops already have this ability. It's called "driving too fast for conditions". If they allege that it was dark, or rainy, or heavy traffic, etc etc they can and will cite you whether or not you were within the limit. Or "failure to observe caution".

Another example: DUI laws. Official BAC limit for most states is .08 (lowered from long-time .1 standard due to MADD's lobbying of the feds, who then used highway funds to pressure the states). However, even if your BAC is below .08 you can and will get cited for DUI if the cop feels (opinion) you were "impaired". This in practice often goes down as far as .05. There's even a case I read a few days ago where a woman's being prosecuted for .01! (Punishment tactics I'm sure.)

Conversely, look at things like domestic violence. In the past police had a great deal of leeway on these situations-- respond to a drunken fight between couples, get them calmed down, etc. In my state policy now is very much that if cops go to a domestic violence call, SOMEBODY has to go to jail (almost always the man). The cops hands are pretty much tied.

So in my opinion, police still DO have a great deal of arbitrary power in enforcing laws, but usually only if it's to impose a HIGHER penalty on the citizen.

Maybe what's lacking here are "clear cut" laws.

|11.12.04 @ 4:48AM|#

Our local ABC affiliate, WISN 12, Milwaukee, replaced Ryan with the Tom Cruise/Nicole Kidman immigrant saga, Far And Away. I wasn't planning on watching it, but I was setting my VCR, and noticed that 12 was running a crawl on the bottom of the screen, blaming the FCC's vagaries and ABC's unwillingness to allow local stations to air the scheduled flick at a later hour.

So what did we get instead? In the five minutes or so I looked in on, mostly to see if Cruise's brogue was as awful as I had read that it was, I got to see bare knuckle boxing by a shirtless and eventually bloodied Tom, and a scene where Kidman snuck a peek at a disrobing TC's butt-crack. So, we got sex and violence, but no dirty words.

Kevin

|11.12.04 @ 11:04AM|#

"Hmm, I seem to recall that in the 1790's some long-haired radicals were running the government. They came up with a guideline as to which complaints the federal government would act upon if somebody alleged that some speech was offensive. I could be wrong, but I believe their precise answer was 'none.'"

Is that really what the Alien and Sedition Acts meant?

(No, I'm not really in favor of the A&S Acts, but the fact that they could be enacted by Congress, including many of the same people who voted for the First Amendment, proves that whatever the First Amendment meant to those long-haired radicals, it wasn't what the ACLU says it means today. Since the Framers seem to have considered it at least an open question whether the First Amendment left the government free to suppress seditious libel, I don't think you can invoke the Framers to short-circuit the debate over suppression of "broadcast indecency.")

Kevin Carson|11.12.04 @ 12:19PM|#

Jennifer,

I'll take it one further.

The procedural rules the police and courts operate under are far more important for liberty than the substance of the law.

We could have drug laws on the books as draconian as Singapore's, and the drug war would be a dead letter if the government had to obey the fourth, fifth and sixth amendments literally.

|11.12.04 @ 4:14PM|#

I'll just pop in here with some off-topicanism. Jefferson accused Adams and the Federalists of trying to erect a monarchy, and he threatened to call a second Constitutional Congress and to overthrow Adam's administration by force, primarily citing the A & S Acts.

"Ultimately the Acts backfired against the Federalists; President Adams himself never supported or used them. Only one alien was actually deported, and only ten people were ever convicted of sedition. The Acts were all repealed or expired by 1802, and ultimately contributed to the Federalists' loss in the election of 1800."
-Nationmaster.com encyclopedia

***
'Is that really what the Alien and Sedition Acts meant?

(No, I'm not really in favor of the A&S Acts, but the fact that they could be enacted by Congress, including many of the same people who voted for the First Amendment, proves that whatever the First Amendment meant to those long-haired radicals, it wasn't what the ACLU says it means today. Since the Framers seem to have considered it at least an open question whether the First Amendment left the government free to suppress seditious libel, I don't think you can invoke the Framers to short-circuit the debate over suppression of "broadcast indecency.")'

Comment by: Seamus at November 12, 2004 11:04 AM