Monthly Archives: August 2017

Its about halfway through the fifth season of Orange Is the New Black when Elizabeth Rodriguezs recently un-incarcerated, always opinionated Aleida sums up the plight of female-forward broadcast television writers everywhere with one simple, well-crafted exchange.

Can I say bitches? she asks a local newscaster and then, when she gets the green light, immediately and involuntarily exclaims, s. The journalist, played by Thea McCartan, responds she cant say that, to which Aleida replies, What kind of fing bulls rule is that?

Although the writers may have simply been trying to show that Aleida was not as media savvy as she was street smart in this episode, which was written by co-exec producer Lauren Morelli, in a lot of ways, were all like Aleida, says writer-producer Carolina Paiz.

After years of working on broadcast TV, Paiz understands Aleidas frustrations. On network shows, she notes, Were constantly censoring or told to self-censor. Even before the FCC has a way to weigh in, Standards and Practices is all over us.

Paiz recounts her frustration from working on one unidentified show that had plenty of violence, but required the writers to go back and forth and come up with 20 different racial slurs to see which one was more acceptable than the other. She was also on ABCs Greys Anatomy earlier in its run when writers were told that they couldnt say vagina on a medical show but penis was OK thus resulting in terms like vajayjay entering our lexicon. (A representative for ABC confirmed to Variety that vagina is now acceptable language.)

Ron Simon, curator of TV and radio at the Paley Center for Media, notes that since 1934 over-the-air television and radio has been regulated, including a safe harbor period between 6 a.m. and 10 p.m. Although the First Amendment prohibits outright censorship or interference with broadcasters right to free speech, during these hours content the FCC deems indecent material may not be broadcast because kids are arguably most likely to hear it.

Simon says most of the recent viewer complaints have come from live events, such as CNNs decision to air the audio of Donald Trumps Access Hollywood hot mic interview during the election or Stephen Colberts late-night monologue where he claimed to know the only thing the president is good for. Neither were within the FCCs jurisdiction.

It seems very arbitrary, if you look at the complaints, Simon says. Hes not sure how much the average viewer has made a distinction between what is and isnt regulated by the FCC.

Of course networks have their own rights to self-censor and Paizs experience with broadcast Standards and Practices is not unique. Museum of Broadcast Communications television curator Walter J. Podrazik says he has seen a desire not to offend from the business side since the days of Lucy and Ricky Ricardo, and Rob and Laura Petrie, sleeping in separate beds. He points to a scene in a televised production of the play No Time for Sergeants that aired in 1955 during The United States Steel Hour as an example. In the play, Andy Griffiths character, Will Stockdale, is on latrine duty and decides to make all the toilet seat covers stand at attention and flush when his superior walks though. But the gag was deemed inappropriate for television audiences, so an orchestra played instead. Even by 1971, Podrazik says, it was a big deal when audiences heard a toilet flush in one of the first scenes of All in the Family.

What is offensive or what is an imposition has sort of changed over the years, Podrazik says. But he adds that writers and directors are crafty enough to get around it and convey it without having to say the words.

Foxs Empire only used the most derogatory word for a gay man in the pilot (in 2015), since becoming more creative when reaching for terms an old-school music mogul might use to hurt his gay son. ABCs Modern Family made light of an emotional situation in 2012 by bleeping the tirade of f-bombs that the young Lily (Aubrey Anderson-Emmons) unleashes during a wedding ceremony. But this year NBCs The Carmichael Show aired the n-word unedited during primetime albeit with a parental advisory notice appearing ahead of the broadcast. These examples all serve the argument that words can be hurtful, but hearing them can add to the authenticity of characters, diminish their shock potential and reclaim their ownership.

ABCs anthology drama American Crime, which ended with its third season this year, was never gratuitous with foul language, but it did incorporate it into the show to capture the reality of its characters vocabulary. Its work-around for the FCC? A short cut to black.

Michael J. McDonald, one of American Crimes executive producers, says early viewers thought something might be wrong with their screens, but now, people are used to it, and when you watch it, you just fill in the word. McDonald appreciates that ABC allowed these cutaways because it implies theyre not shying away from the language being spoken. Theyre almost saying, Were censoring this because we have to.

American Crime still had to fight battles for certain terms, though. Lollipop is not an acceptable euphemism for oral sex, according to the ABC S&P, and dick is banned as well, which McDonald says is innately misogynistic, considering you can say bitch as many times as you want in an episode. It is interesting to note, too, that when licensed on Netflix and airing in other countries, American Crime plays its scenes with the words intact.

Cable networks that are not as beholden to advertisers have slightly fewer censorship rules to which to adhere, but most are still selective with their language. Although shows on FX have used the f-word for years, and The People v. OJ: American Crime Story ran the gamut of racist and sexist commentary when depicting the infamous Mark Fuhrman tapes, its 2017 anthology Feud was the first to use the c-word.

Id like to get to the point where theres virtually no censorship, and were pretty close, FX chief John Landgraf told journalists during his executive session at the summer 2015 Television Critics Assn. press tour. Landgrafs policy is to use as few offensive epithets toward women and minorities as possible.

When they are used, they tend to be used in a context where you see theyre used by a character that is doing something wrong, and its pretty clear theyre doing something wrong, he says.

Oddly, this issue is compounded by something for which many networks have been commended: a push for diversity. As series push to include more characters speaking foreign languages, there comes the problem of what is inflammatory in one country isnt in another even if those countries speak the same language, as McDonald found on American Crime. Similarly, Paiz says she once worked on show that had a character named Jesus. S&P was fine with his name if it was used with the Latino pronunciation, but she says they dug in their heels that his friends were not refer to him with the Anglicized one.

I come from Latin America and they censor words that we say in Spanish in ways that make no sense, says Paiz. She was also told that under no circumstances could she use the Latino insult pendejo, which literally translates to pubic hair but can also be used pejoratively to call someone a stupid or contemptible person, because they had gotten complaints about it before.

Paiz understands the reasoning behind these rules, even if they do feel arbitrary, but McDonald points out that an hour on social media on which children spend a great portion of their day can bring up more scathing language than anything available on scripted television. He believes cursing and strong language definitely have their places on television, just not on all shows.

I dont think people are going to be watching American Crime and think, Oh, dear lord. They said the f-word!, McDonald says. You already have chosen to watch our show and know what the subject matter is. I think if you dropped the f-word and the n-word into an episode of The Middle, that might be a little more shocking to a family.

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FCC Censorship Rules Vary for Broadcast, Cable, and Streaming - Variety

Independence Day is an occasion to celebrate freedom from a colonial regime that not only cast chains of economic and political bondage upon Indians, but also fettered their freedom to think, dissent, and express themselves without fear. Demands for a right to free speech, and for an end to political, cultural and artistic censorship, were at the heart of our freedom struggle, and which culminated in the celebrated Article 19(1)(a) of the Indian Constitution. Last week, however, two events revealed that 70 years after Independence, the freedom of speech still occupies a fragile and tenuous place in the Republic, especially when it is pitted against the authority of the State. The first was the Jharkhand governments decision to ban the Sahitya Akademi awardee Hansda Sowvendra Shekhars 2015 book, The Adivasi Will Not Dance, for portraying the Santhal community in bad light. And the second was an order of a civil judge at Delhis Karkardooma Court, restraining the sale of Priyanka Pathak-Narains new book on Baba Ramdev, titled Godman to Tycoon.

Neither the ban on The Adivasi Will Not Dance, nor the injunction on Godman to Tycoon, are the last words on the issue. They are, rather, familiar opening moves in what is typically a prolonged and often tortuous battle over free speech, with an uncertain outcome. Nevertheless, they reveal something important: censorship exists in India to the extent it does because it is both easy and efficient to accomplish. This is for two allied reasons. First, the Indian legal system is structured in a manner that achieving censorship through law is an almost costless enterprise for anyone inclined to try; and second, the only thing that could effectively counteract this a strong, judicial commitment to free speech, at all levels of the judiciary does not exist. Together, these two elements create an environment in which the freedom of speech is in almost constant peril, with writers, artists, and publishers perpetually occupied with firefighting fresh threats and defending slippery ground, rather than spending their time and energy to transgress, challenge and dissent from the dominant social and cultural norms of the day.

The Jharkhand governments ban on The Adivasi Will Not Dance followed public protests against the writer, with MLAs calling for a ban on the book on the ground that it insulted Santhal women. The legal authority of the government to ban books flows from Section 95 of the Code of Criminal Procedure (which, in turn, was based upon a similarly worded colonial provision). Section 95 authorises State governments to forfeit copies of any newspaper, book, or document that appears to violate certain provisions of the Indian Penal Code, such as Section 124A (sedition), Sections 153A or B (communal or class disharmony), Section 292 (obscenity), or Section 295A (insulting religious beliefs). Under Section 96 of the CrPC, any person aggrieved by the governments order has the right to challenge it before the high court of that State.

The key element of Section 95 is that it allows governments to ban publications without having to prove, before a court of law, that any law has been broken. All that Section 95 requires is that it appear to the government that some law has been violated. Once the publication has been banned, it is then up to the writer or publisher to rush to court and try and get the ban lifted.

The CrPC is therefore structured in a manner that is severely detrimental to the interests of free speech. By giving the government the power to ban publications with the stroke of a pen (through a simple notification), the law provides a recipe for overregulation and even abuse: faced with political pressure from influential constituencies, the easiest way out for any government is to accede and ban a book, and then let the law take its own course. Furthermore, litigation is both expensive and time-consuming. Section 95 ensures that the economic burden of a ban falls upon the writer or the publisher, who must approach the court. It also ensures that while the court deliberates and decides the matter, the default position remains that of the ban, ensuring that the publication cannot enter the marketplace of ideas during the course of the (often prolonged and protracted) legal proceedings.

The most noteworthy thing about the Karkardooma civil judges injunction on Godman to Tycoon is that it was granted without hearing the writer or the publisher (Juggernaut Books). In an 11-page order, the civil judge stated that he had given the book a cursory reading, and examined the specific portion produced by Baba Ramdevs lawyers in court which he found to be potentially defamatory. On this basis, he restrained the publication and sale of the book.

In this case, it is the judicial order of injunction that is performing the work of Section 95 of the CrPC. Effectively, a book is banned without a hearing. The book then stays banned until the case is completed (unless the writer or publisher manages to persuade the court to lift the injunction in the meantime). Once again, the presumption is against the rights of writers, and against the freedom of speech and expression.

In fact, the Karkardooma civil judges injunction order is contrary to well-established principles of free speech and defamation law. Under English common law which is the basis of the Indian law of defamation it is recognised that injunctions, which effectively amount to a judicial ban on books, have a serious impact upon the freedom of speech, and are almost never to be granted. The only situation in which a court ought to grant an injunction is if, after hearing both sides in a preliminary enquiry, it is virtually clear that there could be no possible defence advanced by the writer or publisher. The correct remedy, in a defamation case, is not to injunct the book from publication on the first hearing itself, but to have a full-blown, proper trial, and if it is finally proven that defamation has been committed, to award monetary damages to the plaintiff.

In 2011, the High Court of Delhi held that this basic common law rule acquired even greater force in the context of Article 19(1)(a) of the Constitution, and reiterated that injunctions did not serve the balance between freedom of speech and a persons right to reputation. The high court reaffirmed the basic principle of our Constitution: that the presumption always ought to be in favour of the freedom of speech and expression. In this context, the Karkardooma civil judges order granting an injunction before even hearing the writer and publisher is particularly unfortunate.

While the banning of The Adivasi Will Not Dance reflects the structural flaws in our criminal law that undermine the freedom of speech, the injunction on Godman to Tycoon reveals a different pathology: even where the law is relatively protective of free speech, it will not help if judges who are tasked with implementing the law have not themselves internalised the importance of free speech in a democracy.

The first problem is a problem of legal reform. The solution is obvious: to repeal Sections 95 and 96, take the power of banning books out of the hands of the government, and stipulate that if indeed the government wants to ban a book, it must approach a court and demonstrate, with clear and cogent evidence, what laws have been broken that warrant a ban. The second problem, however, is a problem of legal culture, and therefore, a problem of our public culture. It can only be addressed through continuing and unapologetic affirmation of free speech as a core, foundational, and non-negotiable value of our Republic and our Constitution.

Gautam Bhatia, a Delhi-based lawyer, is the author of Offend, Shock, or Disturb: Free Speech Under the Indian Constitution

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The architecture of censorship - The Hindu

This article first appeared on The Conversation.

Mandelas Last Years, written by retired military doctor Vejay Ramlakan, has become a sought-after commodity since the publisher, Penguin SA, withdrew it from the shelves in July. Ramlakan was the head of the medical team that looked after Nelson Mandela until his death in 2013.

The withdrawing and pulping of a book represents a huge expense for a publisher, as well as a source of some embarrassment. So why did the publisher do it?

Soon after the book was published, members of the Mandela family, led by his widow Graa Machel, threatened legal action. It must be admitted that the basis for any legal action wasnt clear, although it was probably linked to defamation. The book, Machel argued, constituted an assault on the trust and dignity of her late husband.

Soon afterward, the authors employer, the South African National Defence Force, distanced itself from the book, suggesting that it may have contravened doctor-patient confidentiality.

The publisher bowed to this pressure and withdrew the book, stating that no further copies would be issued out of respect for the family. This is almost unprecedented, anywhere, and needs to be teased out more fully. After reading the book, Ive considered how and why the publisher may have come to this decision.

REASONS FOR PULPING A BOOK

The decision-making process for a publisher in a case like the Mandela book revolves around balancing the potential costs against reputational damage. The costs can be extensive - in publishing, all costs relating to editing, design, production, printing and distribution are made up front. It is relatively easy to make a decision to withdraw a book after publication when it may have contravened the law, mostly due to defamation of character.

Books may also be withdrawn after allegations of plagiarism, or because the accuracy of the content has been called into question. Publishers sometimes cancel contracts with their authors based on the standard waivers dealing with defamation and inaccuracies.

Publishers try to avoid these kinds of situations by performing due diligence to see if manuscripts contain anything defamatory or that breaches privacy. They employ fact checkers to avoid inaccuracy. And they require authors to warrant that their work is original and accurate.

This doesnt mean that errors dont sometimes slip through. But it is very unusual for a book to be withdrawn simply because its controversial. In fact, publishers usually support controversial titles because they create publicity, and publicity generally leads to sales.

So, what happened in this particular case?

The first set of questions would relate to the credibility of the author, and the publishers relationship with him. Ramlakan was the head of Mandelas medical team and had unique access to the former president over a long period of time.

This means that he certainly had the access and authority to write the book, and as far as I know, nobody is questioning its accuracy.

This is important, because truthfulness is one of the main defences against defamation, as is the issue of public benefit or interest. It seems highly unlikely that a publisher would allow a nonfiction title to include material that is patently untrue or that would harm the reputation of a man like Mandela. Is there really still a need to protect the reputation of a man of such global stature?

FAMILY PERMISSION

Linked to the question of authority is whether the work was authorised. The author has repeatedly claimed he wrote the memoir at the request of family members, and with their permission. In such a large family, it would be difficult to obtain permission from every family member, and it is quite common for family members to protest their treatment in a biography of a famous public figure.

Family members often argue that there has been a breach of privacy or that embarrassing private details have been made public. But the truth is that their authorization is not actually necessary. Many authors write unauthorised biographies or memoirs, and while they may prove controversial, they certainly do not contravene the law. The broad variety of books already available on Mandela shows that there is ongoing public interest. It seems unlikely that each one of them was authorised by the family.

What complicates this scenario is that, as a medical doctor, Ramlakan is also expected to uphold ethical standards that an ordinary writer wouldnt be subject to. I am not an expert in medical ethics, but there are very few medical details in the book that are not already in the public domain.

In fact, one of the purposes of the book was to counter the rumours and speculation around Mandelas medical condition in the last years and months of his life. It does this by quietly countering inaccurate statements and setting out the bare facts. It appears that the author made a deliberate effort to avoid breaching confidentiality, and ended up writing a very respectful book.

Some have suggested that the publisher and author were simply attempting to cash in on the Mandela legacy. Whatever their motives, they shouldnt be the basis for withdrawing a book from public circulation. Taste and motivation are not legal issues.

CENSORSHIP

Given that there is no apparent material basis for a legal attack on the book, its withdrawal reveals self-censorship on the part of the publisher. South Africa no longer has censorship laws in place, but an influential family can bring pressure to bear that amounts to the same thing. But also given that the book was already on the market, it should be asked what the effect of the withdrawal will be.

While fewer copies will be sold in bookshops, and fewer people will have access to it, its not possible to entirely withdraw a book from the online market. The book reviews already mention all of the most controversial parts of the book, and the action of withdrawal only serves to highlight them. The best course of action would be to allow the book to circulate freely and to stand - or fall - on its own merits. Anything else is censorship.

Beth le Roux is an Associate Professor, Publishing, University of Pretoria

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[OPINION] Withdrawal of Mandela book nothing short of censorship - Eyewitness News