Broadcasters say the reluctance of some CBS affiliates to air a Sept. 11 documentary next weekend proves there has been a chilling effect on the 1st Amendment since Congress boosted penalties for on-air indecency 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 affiliates to replace or delay “9/11" -- which has aired twice without controversy -- over concerns about language used by the firefighters in it.
“We don’t think it’s appropriate to sanitize the reality of the hell of Sept. 11,” 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 air the two-hour program at 8 p.m. Sunday, profanity intact. In the Los Angeles area, it will be carried by CBS-owned KCBS-TV Channel 2.
The documentary, produced by Gedeon and Jules Naudet, represents the latest skirmish over issues of indecency on television. In April, the major networks challenged a Federal Communications Commission ruling that several broadcasts that contained obscenities violated decency rules.
Only last week, Carter G. Phillips, a lawyer for Fox Television Stations Inc., appearing before the U.S. 2nd Circuit Court of Appeals in Manhattan, cited the decision by the CBS affiliates to replace the 9/11 documentary or show it after 10 p.m., the time at which the FCC loosens restrictions.
Phillips told the court that the FCC was chilling free speech rights and that broadcasters were becoming increasingly timid. He was before the court as part of a hearing on whether the FCC rushed to judgment in concluding that “NYPD Blue” and three other programs violated decency rules.
Congress recently increased the maximum fines that the FCC can impose for indecency from $32,500 to $325,000.
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 Friday, Sinclair Broadcast Group Inc. 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.
“Given the current regulatory atmosphere, the decision of some stations to delay or preempt ‘9/11' even though it aired it twice before in 2002 and will include appropriate audience warnings, is regrettable yet understandable,” CBS spokeswoman Shannon Jacobs said in a statement.
The American Family Assn., based in Tupelo, Miss., readied its 3 million members to flood the FCC and CBS with complaints after the documentary’s airing.
“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.
On its website, the group has urged its members to take action, saying: “This is a test case for CBS to see how far they can go. If there is no outpouring of complaints from the public, they will go further next time.”
The documentary aired six months and then one year after 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 because it won a George Foster Peabody Award, among other honors.
“It was a much more difficult decision five years ago when the emotions were much more raw and fresh,” he said.
Franks said it seemed “dishonest somehow” for the network to cover up the real language five years later because of the current regulatory environment. He added that 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 took 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.”