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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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March 01, 2005

Free Speech Perfidy at the FCC, Once Again

Posted by Ernest Miller

Yesterday, the FCC released its ruling that a prime time broadcast of Saving Private Ryan on Veterans Day last year was not obscene, indecent or profane. Read the press release: Commission Denies Indecency Complaints Against Veterans Day Broadcast of “Saving Private Ryan” [PDF]. Read the decision: In the Matter of Complaints Against Various Television Licensees Regarding Their Broadcast on November 11, 2004, of the ABC Television Network’s Presentation of the Film “Saving Private Ryan” [PDF].

Once again, censorious perfidy continues at the FCC, as the commissioners refuse to enforce their free expression prohibitions consistently. The problem with censorship is not simply that some speech is censored, but that the government also censors unequally, favoring the speech of some over the speech of others. Others have written about this decision already, see, Jeff Jarvis (FCC follies, continued... and continued... and continued...) and Frank Field (Pvt. Ryan Gets A Pass).

Herewith, some of my comments on the decision ...

The FCC Sees Sexual Connotations Everywhere!

In the "Bono" case, the FCC found that saying "this is really, really, fucking brilliant" was indecent (In the Matter of: Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program [PDF]). Although it would be hard for the average non-prude to see sexual connotations in that expressive phrase, the FCC had to in order to find the program indecent, as their definition of indecency applies only to sexual and excretory language. Consequently, in the Bono ruling, the FCC was forced to declare that (paragraph 8):

we believe that, given the core meaning of the “F-Word,” any use of that word or a variation, in any context, inherently has a sexual connotation, and therefore falls within the first prong of our indecency definition. [emphasis added]
This decision follows the precedent: "The complained-of material contained in the broadcast of the film includes at least one word (i.e. “fuck” and its variations) which falls within the first prong of our indecency definition."

Now, I don't remember too much sex in Saving Private Ryan, but I obviously don't have the fine eye for it that the FCC does. Herewith some quotes from the movie that "inherently [have] a sexual connotation":

MILLER: Jesus Christ! What the hell are we swimming in?

REIBEN: Shit, sir.

SARGE: Fertilizer, Captain, I think we're in a cranberry bog.

REIBEN: Out of the frying pan, into the fucking latrine.

Scheiße, as the Germans might say. I'm not sure I want to touch what possible sexual connotations are here with a ten-foot pole.
MILLER: Respectfully, sir, sending men all the way up to Ramelle to save one private doesn't make a fucking, goddamned bit of sense. Sir.

COLONEL ANDERSON: You think just because you hold the Congressional Medal of Honor, you can say any damn thing you please to your superior officers?

MILLER: Yes, sir, more or less.

Could this possibly be an example of sexual harrasment, or was Spielberg making a subtle point about "Don't Ask, Don't Tell"?
WADE: Look at Upham, you don't hear him complaining.

UPHAM: Well, as a matter of fact, I was just thinking... that I'm so fucking tired of this goddamned walking, I'd pay a thousand dollars to see that bastard Ryan crawl on his belly over an acre of broken glass to hear my great-aunt Martha fart through a field-phone.

Incest reference, maybe?
REIBEN: I'd much rather die in Caen than Ramelle, sir. It's a personal thing.

MILLER: Reiben, there's a fairly good chance you're not going to die at all.

REIBEN: Easy for you to say, sir. Fucking James Ryan, I'd like to wring his fucking neck.

Ooooh, obvious S&M reference here. This might tip the ball into obscenity territory.
MILLER: Any further thoughts on the subject?

REIBEN: Yes, sir, as a final note, I'd like to say, fuck our orders, fuck Ramelle, fuck the cheese capital of France and while we're at it, fuck Private James Ryan.

MILLER: I'll make a note of your suggestions but I'll leave that last one to you, especially if he's already dead.

Homoerotic necrophilia! Once again we may have crossed the border into obscenity territory.
MILLER: We're not here to do the decent thing-- we're here to follow fucking orders.
I think Spielberg is trying to make a point about sex based war crimes.
DEWINDT: Yeah, Brigadier General Amend, deputy commander, 101st. Some fucking genius had the great idea of welding a couple of steel plates onto our deck to keep the general safe from ground fire. Unfortunately, they forgot to tell me about it until we were just getting airborne. Well, that's like trying to fly a freight train. OK? Gross overload. Trim characteristics all shot to hell. I nearly broke both my arms trying to keep her level. And when- and when we released, you know I cut as hard as I could, tried to gain some altitude and still keep her from stalling. We came down like a fucking meteor. And that is how we ended up. And the others, they stopped easy enough OK, though, you know? We were just-we were just too damn heavy, you know? The grass was wet, downward slope and all. 22 guys dead.
I may simply be naive, but the steel plates reference goes over my head, however, "came down like a fucking meteor" is all too clearly a reference to something that even I am too reticent to post.
STEAMBOAT WILLIE: Please, I like America! Fancy schmancy! What a cinch! Go fly a kite! Cat got your tongue! Hill of beans! Betty Boop, what a dish. Betty Grable, nice gams.

STEAMBOAT WILLIE: singing: I say can you see! I say can you see! I... I say...

STEAMBOAT WILLIE: Fuck Hitler. Fuck Hitler!

More homoerotic imagery, obviously, with some Nazi fetishism.

Actually, I'm really not sure that all those quotes are in the movie. However, they are in the screenplay and some of them are in the movie and all of them easily could have been. It would have been nice if the FCC had provided the exact quotes, as they have in other decisions, but that was probably too much work, or might have shown what they didn't want people to see, such as the frequent and gratuitous use of the word.

In any case, the point is that sometimes "fucking" is merely a vulgar intensifier and doesn't have any real sexual connotation. But that would mean that the FCC couldn't punish broadcasters for allowing the word to slip past the censors on an awards show. So, instead, you have a ruling that every use of the word "fuck" inherently has sexual connotations. This would be funny if it weren't so pathetic. Honestly, I really have a problem understanding how the people who write (and sign) these decisions can make such farcical arguments and maintain any shred of personal integrity.

Of course, the claim that these words inevitably have sexual connotations is hard to understand when one looks at the context in which the words are used, as descriped by the FCC:

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. Indeed, it is integral to the film’s objective of conveying the horrors of war through the eyes of these soldiers, ordinary Americans placed in extraordinary situations. [emphasis added]
Where is the inherent sexual connotations here? Shouldn't this have read: "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, the peril in which they find themselves and the inherent sexual connotations of war?" Which is it FCC? Are these words depicting strong human reactions, sexual connotations or both?

From the FCC:

Deleting all of such language or inserting milder language or bleeping sounds into the film would have altered the nature of the artistic work and diminished the power, realism and immediacy of the film experience for viewers. In short, the vulgar language here was not gratuitous and could not have been deleted without materially altering the broadcast.
Shouldn't it be "the vulgar language here had inherent sexual connotations, but such sexual connotations were not gratuitous, and yadda yadda yadda?"

Of course, we all know that "fuck" inherently has sexual connotations, so saith the FCC, but what about all the other words in Saving Private Ryan that were complained about? For example, "'hell'; 'ass' and 'asshole'; 'crap'; 'son of a bitch'; 'bastard'; 'shit' and its variations, including 'bullshit' and 'shitty'; 'prick'; and 'pee.'" The FCC cheats by simply assuming that they meet the first test of the indecency standards. I call "bullshit." Why does the FCC shy away from analyzing whether specific words "describe or depict sexual or excretory organs or activities"? Could it be that such analysis would require them to look at the words and show that, in fact, although they may have their origins in depictions of sexual or excretory organs or activities, they no longer always have that meaning?

For example:

[talking about Capt. Miller]

UPHAM: Reiben, so you even know where he went to school?

REIBEN: Cap'n didn't go to school, they assembled him at OSC outta spare body parts of dead GIs.

CAPARZO: You gotta pay attention to detail, I know exactly where he's from and I know exactly what he did 'cuz I pay attention to detail.

JACKSON: Hey, Upham, careful you don't step in the bullshit!

Now, is the use of the word "bullshit" in this context a description or depiction of excretory organs or activities? Who knows? Frankly, when I hear "bullshit" in that context, I don't immediately think of bovine excrement. I think of vulgar and strong disagreement with the veracity of a statement. Perhaps the FCC disagrees, but they won't say.

Of course, a cynic might conclude that the FCC doesn't want to parse these statements because to do so might make people question why the word "fuck" is never, ever without sexual connotations, but some words, such as "bullshit" aren't always references to sexual or excretory organs and functions.

Can you imagine what might happen if the FCC determined that the word "bullshit" isn't always a description or depiction of excretory activities? People might then question why the word "fuck" is always and in every context a description of sexual activities.

Where's the Profanity? Part XIV

In the Bono ruling the commissioners went out of their way to revive the profane language doctrine, determining for the first time in commission history that a broadcast was profane (FCC Revives Notion of the Profane). Yet, despite that landmark ruling, the FCC refuses to clarify the doctrine or to apply it consistently. Indeed, it hardly gets mentioned in the ruling. "For the same reasons, and based on the same contextual analysis, we conclude that the language referred to above is not profane in context here." Supposedly, there is supposed to be a distinction between what is profane and what is indecent. Something can be both profance and indecent, or profane and not indecent, or indecent and not profane. Will we ever find such a distinction? The FCC hasn't yet.

We know that "fuck" can be profane. It would have been nice if the FCC had also analyzed any of the other words at issue to tell us whether they were as highly offensive as "fuck."

Putting George Carlin in Context

Poor George Carlin. In FCC v. Pacifica Foundation ("Pacifica"), the Supreme Court declared his Seven Dirty Words to be indecent and regulable by the FCC. Apparently, as a comedy routine on the radio, it wasn't in the proper context. However, a violent war movie shown during prime time is the proper context.

Let's look at the context, shall we?

Saving Private Ryan

The subject matter of the film, the portrayal of a mission to save the last surviving son of an Iowa farm family, involves events that occurred during World War II. As stated in the introduction to the broadcast, in relating this story, the motion picture realistically depicts the fierce combat during the Normandy invasion, including, according to a veteran who participated in and witnessed these events, “things that no one should ever have to see.” 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. Indeed, it is integral to the film’s objective of conveying the horrors of war through the eyes of these soldiers, ordinary Americans placed in extraordinary situations. Deleting all of such language or inserting milder language or bleeping sounds into the film would have altered the nature of the artistic work and diminished the power, realism and immediacy of the film experience for viewers. In short, the vulgar language here was not gratuitous and could not have been deleted without materially altering the broadcast. In this context, we must proceed with caution and exercise restraint given “the high value our Constitution places on freedom and choice in what the people say and hear.” [footnotes omitted]
A real depiction of war should be shocking. If you're not shocked, you're either a veteran or unshockable. Is some of the language gratuitous? It might be. Can the FCC tells us how many "fucks" before you cross the line? One was enough to get Bono in trouble.

George Carlin

Pacifica explained that the monologue [Seven Dirty Words] had been played during a program about contemporary society's attitude toward language... Pacifica characterized George Carlin as "a significant social satirist" who "like Twain and Sahl before him, examines the language of ordinary people. . . . Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words."
Apparently, a program that is examining language and quotes from a satirist who uses those words in the context of satirizing them is an inappropriate context. Apparently, bleeping Carlin's words would not have materially altered the nature of Carlin's artistic work, or "diminished the power, realism and immediacy of" his satire.

Saving Private Ryan

Moreover, the presentation by the ABC Network Stations is not intended as family entertainment, a fact clearly and explicitly stated in the introduction that precedes the film and is repeated in the aural and visual viewer advisory and voluntary parental code that follow each commercial break during the broadcast. Thus, parents had ample warning that this film contained material that might be unsuitable for children and could have exercised their own judgment about the suitability of the language for their children in the context of this film.
You know, because children never watch heavily advertised television shows in prime time nor do they have any desire to watch war movies. On the other hand, radio shows about contemporary society's attitude toward language are children magnets. Why, all the children I know can't be torn away from C-SPAN.

George Carlin

[I]mmediately before its broadcast, listeners had been advised that it [Carlin's monologue] included "sensitive language which might be regarded as offensive to some."
The monologue was only 12 minutes long, and probably broadcast without commercial break. So, there was a warning before the language went over the air. I guess that is good enough for Spielberg and ABC, but not Carlin.

Saving Private Ryan

[I]n light of the overall context of the film, including the fact that it is designed to show the horrors of war, its presentation to honor American veterans on the national holiday specifically designated for that purpose, the introduction, which articulated the importance of presenting the film in its unedited form, and the clear and repeated warnings provided by ABC, not only in the introduction but also at each commercial break, we find that the complained-of material is not patently offensive as measured by contemporary community standards for the broadcast medium, and, therefore, not indecent.
I guess because the First Amendment and free speech don't have a specific holiday then there isn't a particularly proper day to air a show on contemporary society's attitude toward language. Furthermore, war should be shown unedited, but satirizing society's attitude toward speech is best edited.

By all means, let's honor veterans (I'm one), but maybe we could also honor the liberties those veterans fought and died for. The FCC understands that we should honor veterans, but they apparently do not understand why they deserve to be honored.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression


COMMENTS

1. jon on March 2, 2005 07:21 PM writes...

Fucking brilliant commentary! Way to tear those cocksuckers a new asshole!


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