BOB GARFIELD: From WNYC in New York, this is NPR's On the Media. I'm Bob Garfield.
BROOKE GLADSTONE: And I'm Brooke Gladstone. Ever since the world caught a surprise peek at Janet Jackson's "poitrine" during Super Bowl 2004, we've heard a lot about a chilling effect in America's mediascape, and in fact, 66 ABC affiliates shuddered last Veteran's Day and decided not to air a scheduled broadcast of Saving Private Ryan. The film is sprinkled with profanity. [CLIP PLAYS]
SOLDIER: Captain, the decent thing to do is to at least take her down the road to the next house. [LITTLE GIRL CRYING OUT]
CAPTAIN: We're not here to do the decent thing. We're here to follow [BEEP] orders! Sarge, take this god damn kid!
BROOKE GLADSTONE: Of course, we added the bleeps, but those 66 ABC affiliates decided that bleeps or no bleeps, it wasn't worth the risk. Some viewers who saw the broadcast did complain about the cuss words. This week, the FCC finally weighed in,(quote) "In light of the overall context in which this material is presented, the commission determined it is not indecent or profane. FCC Commissioner Jonathan Adelstein explained why Saving Private Ryan passed muster.
JONATHAN ADELSTEIN: In the context of a news program, for example, it would be very different to hear this kind of language than it would in the context of a more explicit program that's just designed, basically, to shock listeners, and might be something that would be inappropriate for children to hear.
BROOKE GLADSTONE: And yet 66 ABC affiliates decided not to air Saving Private Ryan, because they sensed that we were in a new climate of indecency enforcement, and a lot of them pointed to the FCC's reversal of its earlier decision about Bono's use of the "F" word when accepting an award at the Golden Globes a couple of years ago. He said it very spontaneously, in a non-sexual context.
JONATHAN ADELSTEIN: In the case of the Bono incident, it was gratuitous; it was during an awards show, when parents would not be apprised that that kind of language would be used. In the case of Saving Private Ryan, there was many different disclosures done in advance. Even Senator John McCain went on television before the movie was aired to say that parents may want to be careful about the kind of language that's being used here, and the language was used in order to convey what happens in wartime. I mean, wartime isn't an issue of pastels. It's black and white. I mean, it's a vicious situation you're in, and this kind of language is a part of the very fabric of war, and so to change that would change the nature of the film. We found that, in that context, that certainly use of the language was not indecent, and I'm really disappointed, frankly, that a lot of stations decided not to air it, and I'm concerned that we may be having something of a chilling effect on, on speech, and we need to avoid that in every way possible.
BROOKE GLADSTONE: There was a recent Frontline documentary in which there were a number of expletives. These were men engaged in warfare. All of these dirty words were pretty contextual, and yet PBS decided to air, as its principal feed, an expurgated version, solely because they can't figure out what the FCC is going to do.
JONATHAN ADELSTEIN: That was PBS's decision, and we're not censors. We didn't ask them to do that. They did that of their own accord. Now, you can look at that in the context of the Private Ryan decision. If the context is one that we find indecent; we'll find it. If it's not, we don't, and recently we've issued a number of denials of complaints to try to make it clear to people that there is real respect here for the first Amendment and for permissible speech.
BROOKE GLADSTONE: So you're asking basically broadcasters and producers to keep their eye on a kind of evolving regulatory case law.
JONATHAN ADELSTEIN: I know it's frustrating, but to make advance judgments about these things and tell people what the rules are in very specific ways would put us in the position of being censors, and that is not our job. As a matter of fact, we are not allowed to censor any material. So we're very careful about trying to give out a detailed rule book about what can and can't be said over the air.
BROOKE GLADSTONE: So we know that the "F" word is probably okay in a highly-regarded movie about war. We think it's probably okay in a well-produced documentary about war, in the Frontline case. But we're not sure whether it's okay in a mystery or perhaps even in a comedy. It seems like this whole process inevitably puts the FCC in a funny position, requiring you guys basically to be our nation's ultimate art critics.
JONATHAN ADELSTEIN: We are charged by Congress with enforcing the indecency rules, but we've also been sworn to uphold the Constitution and the first Amendment, and we're constantly in a battle to find a balance between those.
BROOKE GLADSTONE: You have, so far, at least, been a big backer of increasing the penalties for indecency. Those fines have increased tenfold. But there are a lot of people who have suggested that however big the fines get, big media conglomerates are going to swallow them as a sort of cost of doing business, but PBS affiliates, for example, will have to back away, because this kind of money can sink them.
JONATHAN ADELSTEIN: As I understand the legislation, it actually has us take into account the size and financial position of broadcasters in assessing fines, and having a broader authority to assess these fines doesn't necessarily mean that we have to use it. It gives us the discretion to do so in egregious cases, but I certainly don't think we should be going to the max on every case. We don't do that now, nor should we if the fine authority is increased. But in those cases where broadcasters step over the line, we need to at least have the ability to impact them in such a way as they'll take it seriously.
BROOKE GLADSTONE: What about the "V" chip? The "V" chip was designed to help people block things from coming into their television. It's never really gained much popularity. Do you think it's impossible to expect people to take responsibility for what comes into their house, especially when the have the technology to do it?
JONATHAN ADELSTEIN: I would hope that people would take the responsibility to do it. As a matter of fact, the courts have instructed us to use the least intrusive means possible, which is one of the reasons that the courts have found that cable has a different standard than broadcast, because in cable, you can control, to some extent, more easily what is or isn't coming across your cable box. Our job here is to enforce the law, but ultimately, if broadcasters can take responsibility as well as parents, it's for the best for everyone.
BROOKE GLADSTONE: All right. Thank you very much.
JONATHAN ADELSTEIN: Okay. Thank you for taking the time to do it.
BROOKE GLADSTONE: Commissioner Jonathan Adelstein is one of two Democrats on the FCC.