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Wednesday, March 9, 2005

The Saving Private Ryan Censorship "Precedent"?
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On February 28, the FCC released an important decision holding that the film Saving Private Ryan was not "indecent" and could be shown on primetime broadcast television without fear of fines.

The decision was handed down four months after 66 of ABC's 225 affiliated stations - - covering roughly one-third of the country - - decided not to air the film fearing that they might be caught in the FCC's growing indecency enforcement net. Several of these affiliates cited the uncertainty surrounding the agency's stepped-up indecency "crackdown" in the wake of the Janet Jackson episode at last year's Super Bowl.

The FCC was also compelled to issue a ruling in this case since it received an official complaint from the American Family Association (AFA) asking the agency to pursue sanctions against ABC stations that aired the film.

First, the good news: The FCC denied the AFA complaint and ruled that Saving Private Ryan was not indecent and that no ABC affiliate would be fined for airing the film. But how the FCC arrived at this conclusion is somewhat troubling, or it at least raises as many questions as it answers about how current indecency "standards" will be interpreted by the agency in the future.

What makes the agency's decision in this case problematic is that when you read between the lines, you realize what the FCC is basically saying is this: 'We like this movie. We REALLY like this movie. It vividly depicts an important historic event. And it's directed by one of America's great directors. Best of all, it was introduced by a U.S. Senator who just happens to be a war hero (and a major player of communications policy in Congress no less!) So, you have our permission to go ahead and air this film in the future.'

Of course, the FCC used more technical legal language to rationalize it's decision not to censor the film, but that really is the long and short of it.

There are a couple of key words and catch phrases that the FCC keeps coming back to in making this determination. The first is "context." The decision stresses how important context is deciding that it's OK to drop the F-Bomb numerous times in Saving Private Ryan, but not even once in another program. The other key words are "shock, titillate, and pander." The FCC doesn't want you engaging in any of those nasty things either... unless you're Steven Spielberg, that is. Here's how the agency dispenses with such matters when it comes to Saving Private Ryan:

"Essential to the ability of the filmmaker to convey to viewers the extraordinary conditions in which the soldiers conducted themselves with courage and skill are the reactions of these ordinary Americans to the barbaric situations in which they were placed. The expletives uttered by these men as these events unfold realistically reflect the soldiers' strong human reactions to, and, often, revulsion at, those unspeakable conditions and the peril in which they find themselves. Thus, in context, the dialogue, including the complained-of material, is neither gratuitous nor in any way intended or used to pander, titillate or shock."

Hmmm. I'm not so sure about that. Certainly SOME individuals - - like the members of the American Family Association - - found the film to "pander, titillate or shock." But you don't have to be an AFA member to find some of the material in the film at least somewhat shocking or titillating. And it's not just the numerous expletives. The extreme violence of the opening Normandy beach storming scene really is extremely shocking. So things are not necessarily as clear as the FCC suggests.

Regardless, as far as I can figure, to the extent there is any sort of "precedent" or rule flowing out the Saving Private Ryan decision it is this:

* If the film garnered a great deal of critical acclaim;
* Or, better yet, won numerous awards (preferably Academy Awards);
* And deals with historical subject matter (especially a war);
* And does so in a gripping, realistic way (but doesn't "pander, shock or titillate"!);
* And is hosted by someone who actually took part in the events;
* Or, better yet, is hosted by an elected member of Congress;
* And, finally, includes a clear rating up-front and repeated content warnings between each commercial, and can be screened by use of the V-Chip...

...then apparently you are free air it without fear of fines or license revocation.

But is that really the case? Wouldn't it be interesting to know how the new Saving Private Ryan "precedent" applies in some other cases?

Well, that's exactly what I'm trying to find out. I'm getting ready to file what's known as a "Request for Declaratory Ruling" at the FCC asking the agency to provide us with some additional guidance on this point. Namely, I will be asking the agency to apply it's new Saving Private Ryan precedent to some other well-known films: Platoon, Born on the Fourth of July, Malcolm X, Raging Bull, Lenny, Goodfellas, Midnight Cowboy, Leaving Las Vegas, and Angels in America (an HBO production). [I will also be sending the FCC a copy of each of these movies on DVD.]

Do any of these films qualify for an exemption from the agency's indecency regime like Saving Private Ryan? Like Saving Private Ryan, most of them deal with important historical or cultural events. And most of them were made by famous, respected directors. But like Saving Private Ryan, each of these films also include a great deal of profanity as well as shocking and titillating material, at least by some people's definition. Indeed, these movies include some of the most memorable scenes in motion picture history, but many of those scenes involve coarse language or even extreme violence. Finally, like Saving Private Ryan, each of these films also won numerous awards and garnered widespread critical acclaim. When you get right down to it, about the only difference between these films and Saving Private Ryan is that they didn't have a well-known Senator introduce them on TV! Is that what it takes to get a controversial film shown on broadcast television? Is that the Saving Private Ryan "precedent"? Let's see what the FCC has to say.

My point in doing all this is that the FCC's indecency "standard" remains about as clear as mud. Honestly, I don't understand how they are drawing these random lines and I'm looking for greater clarity here, as are many of America's broadcasters. But I have an important advantage over the broadcasters in filing this sort of petition because if they did it, the FCC would simply dismiss it outright by claiming that they don't make preemptive censorship judgments.

I'll post my filing once I get it over to the FCC in a few days and let everyone know what (if anything) they have to say in response.

In closing, I would also like to draw everyone's attention to a rather bizarre section (Paragraph 17) in the Saving Private Ryan decision clarifying that the use of blasphemy in the film didn't cross any lines. "[W]e conclude that uses of the words 'Jesus,' 'Jesus Christ,' 'God,' 'God damn' and its variations, and 'damn' and its variations, are not actionable." Although blasphemy long ago ceased being an actionable item in indecency investigations, it has undergone a bit of a revival lately. This serves as a testament to the growing influence that groups like the AFA and the Parents Television Council are having in this area. Hopefully I'm not the only one out there that finds a renewed focus on blasphemy regulation to be a troubling development. For God's sake, what are they going to want to regulate next? Wait, can I say "For God's sake"? Guess I'll have to file another petition with the FCC to find out.

posted by Adam Thierer @ 10:12 AM | Free Speech

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