PBS wards off fines by fixing cartoons from distant past

‘We fear to tell our history . . . and have to blur it out’

Originally published in Current, Oct. 10, 2006
By Karen Everhart

Blurring of 200-year-old cartoons in David Grubin’s Marie Antoinette, requested by PBS shortly before broadcast, was not enough to allay many stations’ worries about stiff FCC fines.

Eight outlets in the top 55 markets dropped the historical bio from their schedules Sept. 25 [2006]. An undetermined number of other stations delayed the documentary until after 10 p.m., when the FCC permits broadcasts containing words and images that a viewer might find indecent.

Sex, or the lack of it, was a major public affairs issue in the decade leading up to the French Revolution, and Grubin, an acclaimed producer of historical biographies and other films for PBS, argues that he had no choice but to treat it in his work.

“You can’t tell the story of Marie Antoinette without these images,” he said. “They explain how she got such a horrible reputation.”

When Marie Antoinette married the shy and socially awkward prince who would become Louis XVI, French society gave her one all-important task — to produce an heir to the French throne. Her husband’s inexperience and apparent impotence prevented her from doing so, and problems in the marital bed became fodder for pamphleteers who portrayed the queen as a sexual libertine.

The propaganda campaign against the queen was integral to her life story, said John Wilson, PBS’s chief TV programmer. “We wanted to be able to tell the story and have it go forward in a way that the audience could learn from, but at the same time we don’t want to put stations in harm’s way.”

PBS notified stations of the film’s mature content in mid-July and days later fed a full-length finished cut, according to Wilson. Further changes were made after last month’s meeting of the Organization of State Broadcasting Executives, an association of state pubTV networks, mostly operated by state governments.

Attorneys advised many station execs not to broadcast Marie Antoinette before 10 p.m., if at all. They also questioned whether the indemnity provided by an independent producer, Grubin, would protect them from legal costs and FCC penalties potentially topping $325,000 per station.

One of the stations represented at the OSBE meeting was Rocky Mountain PBS, which delayed broadcast for two weeks. “Our concern was more with regard to sensitivity to the FCC than with the content of the film itself,” said President James Morgese. “If you go back 10 years, that kind of content in serious historical documentary was not objectionable, but in this climate you’ve got to wonder.”

On the advice of an attorney, the Denver-based network decided to pull the censored version of Marie Antoinette from its Sept. 25 schedule and ran spots notifying viewers of the change. The program was rescheduled to air twice, Oct. 8 and Nov. 5, both times at 10:30 p.m.

Simply pushing the documentary back an hour on Sept. 25 — a tactic that other stations adopted—involved another set of risks for RMPBS, according to Donna Sanford, p.d. Fans of Charlie Rose would be angry to find that their favorite program had been preempted.

The lawyers’ biggest worries about the film were two phantasmagorical images. One depicts King Louis riding an ostrich with a huge erect penis as its neck. As the image appears briefly on screen, British historian Simon Schama comments, “There was a very ugly streak of misogyny going on, feeding into this mad demonology about dangerously meddling, sexually voracious women.”

In the other worry-provoking cartoon, lines of penis-barreled cannons point upwards at a vagina.

“It’s like open dreams,” says French historian and novelist Chantal Thomas. “It’s a world of dark fantasy full of hatred.”
The pamphleteers’ cartoons, which often depicted Marie Antoinette with her breasts exposed or reclining with a lover, fueled the anti-monarchy fervor that was building before the French Revolution.

Another problematic sequence in the documentary was a reading from a historical document—a letter in which Marie Antoinette’s brother describes what he’d learned about the king’s sexual dysfunctions. “In his marriage bed, this is the secret: He has strong, perfectly satisfactory erections. He introduces the member, stays there without moving for about two minutes, withdraws without ejaculating but still erect and begs ‘goodnight. . . .’”

“If only I could have been there, I could have seen to it that the King of France was whipped so that he would have ejaculated out of sheer rage like a donkey,” remarks the queen’s brother.

Grubin avoided using titillating images during a voiceover reading of the brother’s letter. Instead, the screen showed footage of an unused royal bed. “The bed looks like no one’s been in it for 300 years,” Wilson said.

As a firsthand, historical account of the couple’s sex problems, “the words themselves are extremely relevant” and largely clinical, Wilson said. “Owing to the subject matter and the relevance to the topic, we decided it ought to stay in,” he said.

“We really told the story the way that it had to be told,” Grubin said. “People were much more frank about sexuality in those days, particularly when it came to a king or queen.”

PBS President Paula Kerger, who requested the last-minute review after hearing from station execs at OSBE, also ordered the network’s senior staff to reevaluate their program review procedures and report back to her.

“I apologize for the apprehension this situation has caused and the lateness of this final decision, but I feel that we made the right decision for the greatest number of our member stations and appreciate your understanding,” Kerger wrote in a Sept. 25 e-mail.

PBS looked to a new outside counsel, retained after the earlier vetting of Marie Antoinette, for advice just before the documentary’s debut. “They said, ‘Who knows what the FCC will find or someone will complain about?’” said Wilson. The lawyers identified the penis cartoons as possible FCC triggers.

Grubin agreed to blur both images. “My own feeling, from an aesthetic point of view, is that one can still imagine what might have been there,” he said. “It seems to be such a pity that we fear to tell our history the way it is and we have to blur it out.” Editors also blurred a cartoon image of Marie Antoinette’s bottom.

“With the size of these fines and the vagaries of the FCC, I can’t blame people who are being cautious about it,” Grubin said. “It’s a miserable situation.”

PBS explains how it requires national producers to protect stations

After deadline for Current's Oct. 10 issue, PBS released this explanation of its requirement that producers indemnify the stations against certain risks.

Unique among broadcast television models, PBS does not produce programming, relying instead on producers to determine the treatment of the content, the body of available images, clips and other material suitable for the program. PBS seeks to promote the artistic integrity of its producers and recognizes the importance of producers maintaining and exercising editorial control over their work.

A critical component of a producer’s program license agreement and contract with PBS, therefore, must be the producer’s warranty that its program complies with all necessary rights, technical requirements and FCC regulations, including the FCC’s indecency rules. The producer also agrees to indemnify PBS and its member stations against any breach of this warranty. As the creator, the producer possesses a level of familiarity and understanding of the program content that puts the producer in the best position to assess any potential issues with the final production and to determine if he/she should consult legal counsel.

As part of its service to its member stations, PBS reviews all programs and often will seek outside legal counsel when it believes that content may carry a potential risk for third-party legal action and requires additional evaluation. And, while PBS does not maintain an attorney-client relationship with the producer, PBS will engage in discussions with the producer and/or producer’s legal counsel to facilitate the weighing of the potential risks of material that either party has identified as requiring further review. PBS’s willingness to engage in this level of discussion with the producer in no way waives or mitigates producer’s ultimate responsibility to warrant the program and indemnify PBS and its member stations.

The obligation to indemnify includes the cost of defending any indecency complaints and the cost of any fines or penalties imposed by the FCC.