KCSM San Mateo, Calif., says speech of blues and hip hop artists is not indecent in context of documentary and that the FCC improperly failed to apply its own Saving Private Ryan precedent.
The San Mateo, Calif., County Community College District and its public television station KCSM have formally opposed the FCC’s proposed $15,000 fine for KCSM’s broadcast in March 2004 of the critically acclaimed documentary about the blues Godfathers and Sons. The film, part of a series about the blues executive-produced by Martin Scorsese, was distributed to PBS stations across the country.
The FCC ruled that language in the film was indecent and profane. KCSM’s opposition to the FCC’s ruling is supported by written declarations from Scorsese, the film’s director Marc Levin, series producer Alex Gibney and Marshall Chess, son of legendary blues record producer Leonard Chess.
“There are important First Amendment values at stake in this case, which the College District believes deserve to be protected,” said Dave Mandelkern, president of the board of trustees of the San Mateo County Community College District. “As our pleading states, we think the FCC failed to follow its own precedent in taking the context of a broadcast into account in assessing indecency.” The College District operates three colleges, which are located on the San Francisco Peninsula between San Francisco and Silicon Valley and serve 41,000 students annually.
Levin’s Godfathers and Sons presents the story of the founding of Chess Records by brothers Leonard and Phil Chess, who emigrated from Poland to Chicago as boys in the late 1920s. Their recordings of some of the greatest blues artists in history—Muddy Waters, Howlin’ Wolf, Bo Diddley, Etta James, Sonny Boy Williamson, Chuck Berry and many others—epitomized the famous Chicago blues sound. The documentary, emphasizing intergenerational and interracial themes, also traces the influence of these “godfathers” of the blues on the rock musicians of the 1960s and on today’s hip hop and rap artists.
KCSM notes that the documentary was rated TV-14(L), which cautions parents that the film contained strong, coarse language. With this rating, parents can decide whether the program is suitable for viewing by their children and can take advantage of V-chip technology to block access to the programming.
The College District opposed the FCC fine on multiple grounds:
ÃƒÆ’Ã¢â‚¬Å¡Ãƒâ€šÃ‚Â· “The FCC improperly failed to apply its own Saving Private Ryan precedent, in which it ruled that repeated uses of the F-word and other expletives in the intense and graphic World War II film were not indecent in the context of that film because deleting the words ÃƒÆ’Ã‚Â¢ÃƒÂ¢Ã¢â‚¬Å¡Ã‚Â¬Ãƒâ€¹Ã…â€œwould have altered the nature of the artistic work and diminished the power, realism and immediacy of the film experience for viewers.’ Judging the blues film, however, the FCC said that the expletives were not necessary to the artistic or educational nature of the work.”
ÃƒÆ’Ã¢â‚¬Å¡Ãƒâ€šÃ‚Â· “KCSM, with support from Mr. Scorsese and the other filmmakers, demonstrates that the intermittent expletives heard in Godfathers and Sons were part of the essential realism of the documentary and that deletion would have altered the nature of the artistic work. As Mr. Scorsese states in his declaration: ÃƒÆ’Ã‚Â¢ÃƒÂ¢Ã¢â‚¬Å¡Ã‚Â¬Ãƒâ€¹Ã…â€œNaturally, and necessarily, the film contains scenes of bluesmen and the new generation of artists talking the way they really talk—in street vernacular. In my opinion, the inclusion of these scenes, without censorship of the “street language,” was essential to the nature of this artistic and educational work and essential to informing viewers on a matter of public importance—the blues and its profound impact on American life and culture.’ “
ÃƒÆ’Ã¢â‚¬Å¡Ãƒâ€šÃ‚Â· “In its filing, the College District offered the opinions of noted linguists, anthropologists and ethnomusicologists showing that the language objected to by the FCC is part of an authentic and well-documented vernacular common among musicians in the blues, jazz, rock, hip hop, rap and other contemporary musical genres. Within this vernacular, and as used in the film, the words lacked sexual or excretory meanings or connotations and therefore did not meet the FCC’s definition of indecency.”
ÃƒÆ’Ã¢â‚¬Å¡Ãƒâ€šÃ‚Â· “KCSM contends that the fine is improper because the FCC retroactively applied the expanded definition of indecency adopted in its March 2004 decision in the Golden Globe Awards case, in which U2’s Bono exclaimed the F-word on live television. That decision came one week after KCSM aired Godfathers and Sons.”
Law firm Morrison & Foerster LLP is providing pro bono representation to the College District.
“We are confident that, based on the statements from the filmmakers and scholars submitted by KCSM with this filing, the Commission will find that the broadcast was not indecent under its controlling precedents and will rescind the fine,” said Margaret Tobey, a partner at the Washington office of Morrison & Foerster who represents the College District in the matter. “These materials show that, just as in Saving Private Ryan, the filmmakers here believe that the authentic and well-documented vernacular language used in the film was essential to the realism of the documentary and to achieving their artistic and educational purposes.”