[Senate Hearing 110-1181]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 110-1181
 
                THE IMPACT OF MEDIA VIOLENCE ON CHILDREN 

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 26, 2007

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation


                               ----------
                         U.S. GOVERNMENT PRINTING OFFICE 

76-392 PDF                       WASHINGTON : 2012 

For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 
Washington, DC 20402-0001 



       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                   DANIEL K. INOUYE, Hawaii, Chairman
JOHN D. ROCKEFELLER IV, West         TED STEVENS, Alaska, Vice Chairman
    Virginia                         JOHN McCAIN, Arizona
JOHN F. KERRY, Massachusetts         TRENT LOTT, Mississippi
BYRON L. DORGAN, North Dakota        KAY BAILEY HUTCHISON, Texas
BARBARA BOXER, California            OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida                 GORDON H. SMITH, Oregon
MARIA CANTWELL, Washington           JOHN ENSIGN, Nevada
FRANK R. LAUTENBERG, New Jersey      JOHN E. SUNUNU, New Hampshire
MARK PRYOR, Arkansas                 JIM DeMINT, South Carolina
THOMAS R. CARPER, Delaware           DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri           JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota
   Margaret L. Cummisky, Democratic Staff Director and Chief Counsel
Lila Harper Helms, Democratic Deputy Staff Director and Policy Director
   Christine D. Kurth, Republican Staff Director and General Counsel
Kenneth R. Nahigian, Republican Deputy Staff Director and Chief Counsel



                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on June 26, 2007....................................     1
Statement of Senator Dorgan......................................    60
Statement of Senator Klobuchar...................................     7
Statement of Senator Lautenberg..................................     5
Statement of Senator Rockefeller.................................     1
Prepared statement of Kevin W. Saunders, J.D., Ph.D., Professor, 
  Michigan State University College of Law, prepared statement...    65
Statement of Senator Smith.......................................     7
Statement of Senator Stevens.....................................     4
Statement of Senator Sununu......................................     6
Statement of Senator Thune.......................................    63

                               Witnesses

Kunkel, Ph.D., Dale, Professor, Department of Communication, 
  University of Arizona..........................................    17
    Prepared statement...........................................    19
Liguori, Peter, President, Entertainment, Fox Broadcasting 
  Company........................................................    14
    Prepared statement...........................................    16
McIntyre, Jeff J., Senior Legislative and Federal Affairs 
  Officer, Public Policy Office, American Psychological 
  Association....................................................    21
    Prepared statement...........................................    23
Tribe, Laurence H., Carl M. Loeb University Professor, Harvard 
  University, Professor of Constitutional Law, Harvard Law 
  School; on behalf of the Ad Hoc Media Coalition................    25
    Prepared statement...........................................    27
Winter, Timothy F., President, Parents Television Council........     8
    Prepared statement...........................................    11

                                Appendix

Cantor, Ph.D., Joanne, Professor Emerita, University of 
  Wisconsin-Madison; on behalf of the Center for Successful 
  Parenting, prepared statement..................................    80
Copps, Hon. Michael J., Commissioner, Federal Communications 
  Commission (FCC), prepared statement...........................    75
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, prepared 
  statement......................................................    75
    Letter, dated June 26, 2007 from Americal Civil Liberties 
      Union to Hon. Daniel K. Inouye and Hon. Ted Stevens........    87
    Letters, dated June 25, 2007 from the Association of National 
      Advertisers, American Association of Advertising Agencies 
      and the American Advertising Federation to Hon. Daniel K. 
      Inouye.....................................................    77
National Association of Broadcasters, prepared statement.........    91
Pryor, Hon. Mark, U.S. Senator from Arkansas, prepared statement.    75
Representatives of Program Networks..............................   102
Response to written questions submitted by Hon. Daniel K. Inouye 
  to:
    Dale Kunkel, Ph.D............................................   111
    Peter Liguori................................................   113
    Jeff J. McIntyre.............................................   103
    Laurence H. Tribe............................................   109
    Timothy F. Winter............................................   105
Response to written questions submitted by Hon. Bill Nelson to:
    Dale Kunkel, Ph.D............................................   112
    Peter Liguori................................................   115
    Jeff J. McIntyre.............................................   104
    Laurence H. Tribe............................................   110
    Timothy F. Winter............................................   107
Response to written questions submitted by Hon. Mark Pryor to:
    Dale Kunkel, Ph.D............................................   112
    Peter Liguori................................................   115
    Jeff J. McIntyre.............................................   104
    Laurence H. Tribe............................................   111
    Timothy F. Winter............................................   108


                THE IMPACT OF MEDIA VIOLENCE ON CHILDREN

                              ----------                              


                         TUESDAY, JUNE 26, 2007

                                       U.S. Senate,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:10 a.m. in 
room SR-253, Russell Senate Office Building, Hon. John D. 
Rockefeller IV, presiding.

       OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, 
                U.S. SENATOR FROM WEST VIRGINIA

    Senator Rockefeller. This hearing will come to order. 
Senator Inouye, the Chairman of the Committee, has asked me to 
open this morning's hearing on the impact of media violence on 
children.
    I'm very pleased to welcome our witnesses today. I know 
many of you have traveled from across the country to be here 
today.
    Before I start, I would like to mention that FCC--Chairman 
Kevin Martin could not be here today. He wanted to be here, was 
planning to be here, but his several day old young son, as of 
last night, remains in intensive care, and so, it is entirely 
understandable that he would not be here. So, we wish he and 
Catherine and the little boy, William, all the best.
    I also have to recognize the work of Commissioner Copps on 
this issue. Unfortunately, Commissioner Copps also could not be 
here today, due to other, as they say, pressing FCC business. 
But he has been a genuine leader and an advocate on this issue, 
as I think most of you know.
    The issue of protecting children from indecent, violent, 
and profane content is a deeply personal and important issue to 
this Senator. Last Congress, I introduced legislation to 
address this issue, and I will do so again in the coming weeks, 
and I will keep on doing so until something happens.
    After years of inadequate and ineffective voluntary efforts 
by the industry, we are no closer to solving the problem of 
indecent and violent programming for children, despite the 
claims that parents have many tools at their disposal to 
address unwanted programming.
    Children today are being subjected to an unprecedented 
level of violent television content. There's no doubt it is 
coarsening our culture, probably debasing our culture. I fear, 
too, that it is weakening our society, as a whole.
    For too long, we have heard promises to do better. They 
come in various forms, in various amounts, to put better tools 
in the hands of parents, to provide more options for families, 
but none of this has yielded any results; instead, we have the 
industry blaming parents--interesting--for their lack of 
oversight of children's television viewing. I think this is 
cowardly. We have a responsibility to do better, all of us, a 
responsibility the Government must take seriously.
    I hold the entertainment industry responsible for this. 
Decades of scientific research have shown that violent 
television and programming has a detrimental impact on the 
development of children, yet today the content industry is in a 
never-ending race to the bottom; indeed, one questions whether 
there is a bottom somewhere, anywhere, these days.
    I'm not sure that all of my colleagues know how violent 
programming in television has become, and, immediately 
following my statement, with the permission of the 
distinguished Ranking Member, I'm going to show a 5-minute 
video that expresses some of what I'm talking about. At my 
request, the Parents Television Council has put together this 
CD with clips from broadcast and cable channels that show 
shocking, violent images. It will not be pretty. These images 
are inherently disturbing to adults, so imagine what they might 
be for children.
    Interesting article in he Washington Post this morning, I 
believe it was, on the effect, of the war, on Iraqi children. 
This is a little bit different, but, then again, is it?
    I know some of our witnesses will go into far greater 
detail, but let's consider these facts. Children watch an 
average of between 2 and 4 hours of television every day. The 
occurrence of violence on television has increased by 75 
percent since 1998, and has increased across the board on all 
five of the major broadcast networks. On average, American 
youth view more than 1,000 murders, rapes, and assaults each 
year on television. I repeat: On average, American children 
view more than 1,000 murders, rapes, and assaults each year on 
television. Sadly, by the time our children leave elementary 
school, they will have seen on average 100,000 acts of violence 
on television.
    When I am at home, I meet with West Virginia parents and 
educators, and they've told me that children's behavior is 
becoming more aggressive, and, at times, crude or explicit--
they've noticed the change, and they've noticed it recently--
and that they blame television for much of the problem. 
Television blames them. They don't share that view.
    I've met with many representatives from the entertainment 
industry, representing broadcasters, cable, movies, and others. 
The one thing every CEO never fails to tell me is that they are 
personally appalled by the violent content on television, and 
they personally agree with me, and, if they could change it, 
they would. But yet, I never get a reason as to why the 
industry will not stop showing violent content, which would 
sort of solve the problem.
    Violent content is cheap to produce. Violent content is 
profitable. Violent content sells. The entertainment industry 
could change what we watch on television, but it chooses to 
sell sex and violence instead. I reject the notion that 
television merely reflects our society. I reject that, whole 
cloth. But, rather, I believe that television can and should be 
a positive, so to speak, force. That does not mean all happy, 
but realistic, fundamentally constructive, laying a base.
    To be blunt, the big media companies have placed a greater 
emphasis on their corporate short-term profits than on long-
term health and well-being of our children. Instead of 
addressing the problem, too much violent programming on 
television--that being the problem--the industry seeks to hide 
behind ineffective Band-Aids of voluntary action. I remember 
$250 million advertising programs about the V-Chip, that had a 
big effect in West Virginia, to people that--whose sets had no 
effective way of control if they were bought before 2000, which 
most of them would have been. They said they provided parents 
more tools. Parents do not want more tools. They want the 
content off the air.
    It's no big secret that the industry has hoped that its 
latest voluntary campaign will stave off Congress from 
establishing common sense content-and-ratings regulation for 
television. I know that we will hear their now-familiar 
arguments here today. The entertainment industry will claim 
that voluntary actions are sufficient. They always have. I'm 
sure they will continue to. Or they will blame the parents. And 
they are only giving the public what it wants to view, while 
giving parents all the tools necessary to block unwanted 
programming, assuming, of course, that the parent is always 
there, that the two parents aren't working, and all of those 
other things which are casually tossed aside. But none of these 
arguments are persuasive enough to convince this Senator to 
abandon a serious effort to protect children from 
unconscionable levels of sex and gratuitous violence on what 
remains the most pervasive, inescapable means of communication 
in America, which is television. Nothing else comes close.
    We now know that the entertainment broadcasting industry 
has proven itself unable, and unwilling, to police itself. I 
fear that graphic, violent programming has become so pervasive, 
and has been shown to be so harmful, we are left with no choice 
but to have the government step in. I know that Congress has 
been reluctant to take on the issue of violence, because 
defining decency is difficult. I will, again, reintroduce my 
legislation, because we must address this issue. I understand 
these are hard lines to draw. But, just because they're 
difficult, doesn't mean that we should stand by and do nothing. 
We can find these lines, and put bright markers on them.
    For the sake of our children and grandchildren, we have a 
moral obligation to tackle television violence and arm our 
parents with the tools to make their children safer, but, 
again, that is easier said than done.
    There are many, many parents who are very literate, 
computer and otherwise, who cannot make those things work. And, 
plus, they're also often not there to check.
    The real question for all of us today is, what are we going 
to do about protecting our children from the pervasive and 
escalating level of television violence? Doing nothing, to this 
Senator, is not an option.
    I would call now on the Ranking Member, Senator Stevens.

                STATEMENT OF HON. TED STEVENS, 
                    U.S. SENATOR FROM ALASKA

    Senator Stevens. I thank you very much, Mr. Chairman.
    As a father of six, and grandfather of 11, more coming, and 
more great-grandchildren coming soon, I share your feelings 
about this. But I think we have to tread a lot softer than you 
indicate we can, because the constitutional restraints that 
have been imposed upon us in the past will certainly be brought 
upon us if we go too far, in terms of trying to regulate this 
industry, which is so vast and so diverse now, it could--you 
could pull down movies on your computer, sitting at a desk, 
while your parents think you're studying. You can pull them 
down on an iPod. There are so many different ways to get to 
movies, other than broadcasting and cable, today, that the 
whole question comes down, I think, to, really, the movie 
industry itself, although, even there, there are portions of 
the industry that are making movies that are not subject to the 
restraints that were self-imposed on the movie industry. I 
think that Jack Valenti, our late friend, started a process of 
trying to educate Americans, and particularly parents, on how 
they can control what their children watch in their home. I 
don't know that even that's effective in trying to control what 
they watch on their iPod or on their computer, on the various 
devices that are available today.
    Clearly, the Supreme Court has laid down some guidelines in 
the past, and I fear that, if we go beyond the concept of 
trying to make sure we have a rating program that works, and a 
program that works, as far as giving parents every tool they 
need to protect the smaller children, by the time they get to 
the teens, they've got all these devices today that give them 
access to--actually, to broadcasts from outside of our country. 
It is not something that's easily regulated. And the more that 
we put down too harsh rules on the television that's in their 
home, the more they're going to acquire the facilities and the 
capability and the technology to watch what they want to watch.
    I think there is a little bit of education involved here, 
as far as parents are concerned--a lot of it, as a matter of 
fact. I've told you the story of my attempt to restrain my 
children from watching programs. You'll recall that. I just 
didn't buy the television.
    [Laughter.]
    Senator Stevens. And, as you know, I--the mayor lived about 
three houses down on the block, and he finally stopped me and 
said, ``Stevens, why are your kids--why are your kids always in 
my front room?''
    [Laughter.]
    Senator Stevens. He had a television. Now, a simple matter 
is that children will go where they want to go, to watch what 
they want to watch, if their parents don't put them on a leash. 
Now, as a practical matter, what we've got to do is be mindful 
of the Constitution and do our best to put down the kind of 
regulation that will work.
    I do hope that we can achieve that. And I'm anxious to 
hear, really--I heard you say that you don't believe it has 
accomplished anything--I think the program that Jack Valenti 
started, after our three listening sessions in the last 
Congress, has had some effect, and I'm anxious to hear, really, 
if they have any real good statistics on that.
    But I admire you holding the hearing. I hope we can bring 
about some change, but I'm fearful of going too far and losing 
control altogether.
    Thank you.
    Senator Rockefeller. The Chair, with the permission of his 
colleagues, would make one observation, and that is that the 
iPods and all the rest wouldn't be affected, either, if the 
content wasn't made, in the first place. You stop making it, it 
doesn't--you can't download it, or anything else.
    Second----
    Senator Stevens. Now you're talking about regulating the 
movie industry.
    Senator Rockefeller. Second, I would actually like, now, to 
put on the 5-minute video, which was done to buttress, in a 
sense, what I'm talking about. And I hope that won't offend 
anybody; the statements will continue directly after that, but 
I'd like to make that point while we still have members.
    [Video presentation.]
    Senator Rockefeller. We can stop it there.
    The next speaker will be Senator Lautenberg.

            STATEMENT OF HON. FRANK R. LAUTENBERG, 
                  U.S. SENATOR FROM NEW JERSEY

    Senator Lautenberg. Thanks, Mr. Chairman. I don't mean to 
cutoff our entertainment.
    The subject is complicated by real life. That's the 
problem. When you look at the volume of interest in The 
Sopranos, it tells you something about human appetites. And 
where does it start? It starts in the home.
    Mr. Chairman, you said some very interesting things. One of 
the things, that sounded like it was in passing, was, ``The 
parents are not there.'' That's the bigger problem, in many 
ways, in my view. Yes, the industry shouldn't be feeding on 
this prurient kind of thing. If you go to a theater today to 
see a movie, invariably, the previews of shows yet to come are 
the most violent little clips you've ever seen. But we tried 
regulating behavior before. It was called Prohibition. And it 
didn't endure, because the public appetite was not there to 
support it.
    I agree, I have ten grandchildren, I hate the thought of 
them watching this kind of, what I will call, ``trash.'' But to 
see what interest there is. ask the hotel industry--I did--when 
having films shown on the room TV, and you'll find out that 
it's sex and violence in abundant numbers, a larger percentage 
of those than any other direct subject.
    So, we've got to figure a way through this terrible 
problem. It is vulgar. It is discouraging. And, when you see 
something like this, very frankly, I've got to tell you, I turn 
it off, for me, when it happens. I just can't stand the fact of 
that kind of depravity ruling our behavior.
    So, you're absolutely right, in terms of what we have to do 
about it. The thing that we have to also include, however--and 
Senator Stevens mentioned it--we've got broadcasts and video 
games. I have a friend who operates one of the biggest 
bookstore chains in the country, and he says the biggest growth 
in their industry are stores that just deal with video games. 
Well, video games--I haven't yet heard a survey of what the 
interest is in violent video games, but I know, from seeing 
kids around, that there is great interest there. So, how do you 
curb that appetite, as well as asking the industry to please, 
please try to do something that doesn't violate our ability to 
speak out on issues. But, somehow or other, we've got to deal 
with a public appetite that goes way beyond our ability to 
control it by behavioral recommendations here; V-Chips, all 
those things. Maybe the Government ought to be sending out, in 
a routine mailing, or some communications mechanism, about the 
fact that you ought not--that, ``Here are ways you, parents, 
can stop it, you, guardians, can stop, some of the violent 
things that we've seen.''
    But, my friends, I'll close with this. If you see anything 
more violent than the war in Iraq, and try to understand why it 
is that we can't see flag-draped coffins coming in, because we 
don't want people to see the violence that is brought upon our 
society, there is something terribly hypocritical about the 
whole thing. And we have to approach this in a realistic 
fashion.
    I thank all of you for being here, and plead for your 
partnership. Let us know what you think we can really do about 
this, instead of satisfying the basic instinct, because if 
that's what we're going to do in our society, we're going to be 
a lot uglier than we are today.
    Thanks, Mr. Chairman, I appreciate it.
    Senator Rockefeller. Senator Sununu?

               STATEMENT OF HON. JOHN E. SUNUNU, 
                U.S. SENATOR FROM NEW HAMPSHIRE

    Senator Sununu. Thank you, Mr. Chairman.
    I certainly concern a--or share a number of the concerns 
that you expressed in your opening statement, but I don't 
believe that Congress is necessarily reluctant to take on the 
issue. It seems to me we spend a great deal of time talking 
about this very issue, and in the last session we spent a great 
deal of time on the floor of the Senate, and, I think, in the 
House, trying to address, quote, ``this issue,'' through 
legislation.
    I think the difficulty, however, is, as Senator Lautenberg 
points out, it's difficult and it's complicated. Anytime we try 
to address, with quality or form or content of what's being 
broadcast or distributed by other means, you run into First 
Amendment questions--genuine, important First Amendment 
questions--that have to be dealt with; you run into questions 
of private carriage, private property rights, and what the 
owners of certain networks have in the way of rights that need 
to be protected; and you run into the issue of defining what is 
meant by ``inappropriate,'' ``indecent,'' ``illegal.'' And it's 
very difficult--as much as we might be bothered or disappointed 
in what we see on different networks, or broadcast through 
different medium, it's very difficult to solve all those 
problems, or address all those concerns, with another rule, 
another regulation, or another law.
    I certainly hope that the panel we have in front of us 
might be able to provide some guidance or some clarity. There 
might be things that we can do more effectively, or the FCC can 
do more effectively to enforce existing legal and 
constitutional standards, but it's a very difficult issue. And, 
as much as I might share many of the concerns raised in your 
opening statement, I can't, for the life of me, figure out how 
it is that showing what the Chairman believes to be indecent 
material on national TV at 10:35 in the morning is going to 
solve the problem. So, I hope we focus on what might be done to 
improve current regulation or enforcement of current laws, what 
might be done to improve those standards in a way that's 
consistent with the Constitution and consistent with private 
property rights, and, at the same time, I think, like anyone 
that has children or grandchildren, you recognize how important 
the guidance that we give to those children really is, because 
there is no rule, law, or regulation that can strike from the 
world, the airwaves, broadcast medium, everything that we, as 
an individual, feel uncomfortable about, or don't like, or 
don't think really reflects the kind of values we want young 
people to have as they grow up.
    Thank you, Mr. Chairman.
    Senator Rockefeller. Thank you.
    Senator Smith?

              STATEMENT OF HON. GORDON H. SMITH, 
                    U.S. SENATOR FROM OREGON

    Senator Smith. Thank you, Mr. Chairman.
    This is a very important hearing. There are two principles, 
I think, that are--we need to bear in mind as we deal with 
anything touching on the First Amendment, and especially as it 
relates to children. First of all, the Federal Government can 
be no substitute for good parenting. And, second, we, as 
parents, currently have--perhaps we need to improve the types 
of monitoring devices that we have in order to facilitate good 
parenting so that they can be the monitors of their--of what 
their children watch.
    Last, Mr. Chairman, a concern that I have about the whole a 
la carte approach is that the current business model, if it is 
removed on a a la carte channel approach, is simply that many 
of the children's programs, which are not violent, which are 
very good, are dependent upon, frankly, the success of other 
channels that are available. I suspect we will lose a number of 
children's programming if we go to an a la carte business 
model. That's my concern about some of the proposals that are 
out here.
    So, thank you for the hearing, and I look forward to 
hearing our witnesses.
    Senator Rockefeller. Senator Klobuchar?

               STATEMENT OF HON. AMY KLOBUCHAR, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Klobuchar. Thank you very much, Mr. Chairman, for 
holding this important and timely hearing. And I look forward 
to talking about the impacts of violence on children, as well 
as how we, in Congress, can craft practical and thoughtful 
solutions.
    As a former prosecutor and a mother of a 12-year-old, I've 
seen, firsthand, some of the violence that our kids are exposed 
to, not only on TV, but also, sadly, with some of the cases 
that we have seen in their own lives and in their own 
neighborhoods. I'm fortunate enough to have a daughter who's 
the ultimate self-censor. I took six 12-year-old girls to see 
``Nancy Drew'' on Saturday night, and my daughter spent the 
entire movie watching it like this. But, that aside, I do 
think, as Senator Smith was saying, that parents are our best 
and first line, but no technology or time channeling system is 
really going to take place of a parent, who is our own best V-
Chip.
    That being said, in my role as a prosecutor I saw many 
families that didn't have that situation, where a parent was 
there all the time, or there would even be families where both 
parents were doing everything they can, or a single parent 
who's doing everything they can, but they're not home in the 
afternoon when their child gets home from school. And so, 
that's why I am interested in seeing, and welcome ideas about 
how Congress, as well as the FCC and the entertainment 
industry, can enact meaningful ways to protect our kids from 
violent images. But we need to act thoughtfully, in a way that 
protects our kids, and in a way that we don't just put 
something out there, knowing that it'll get thrown out in 
court.
    Commissioner Copps stated, in his statement accompanying 
the FCC's April 2007 report, he said, ``I, for one, proceed 
acutely sensitive to the need for a carefully crafted approach. 
I want to see a solution that solves the problem without 
creating others.''
    I think that's what we want to do here. I think we should 
consider thoughtful and meaningful ways to protect our kids.
    I thank you, Mr. Chairman, and I look forward to hearing 
from the witnesses.
    Senator Rockefeller. Thank you, Senator.
    Our panel--and there is just one--is Mr. Tim Winter, who is 
President of the Parents Television Council; Mr. Peter Liguori, 
who is President of Entertainment of FOX Broadcasting Company; 
Dr. Dale Kunkel, who is Professor of Department of 
Communication at----
    Dr. Kunkel. University of Arizona.
    Senator Rockefeller.--University of Arizona; Mr. Jeff 
McIntyre, Senior Legislative and Federal Affairs Officer, 
Public Policy Office, American Psychological Association; Mr. 
Laurence Tribe, Carl M. Loeb University Professor, Harvard Law 
School.
    Mr. Winter?

          STATEMENT OF TIMOTHY F. WINTER, PRESIDENT, 
                   PARENTS TELEVISION COUNCIL

    Mr. Winter. Good morning, Mr. Chairman, Mr. Vice Chairman, 
Senators. Thank you for inviting me to be here with you this 
morning. And, Mr. Vice Chairman, it is a special honor for me 
to be here before this Committee, on whose staff I had the 
pleasure to serve under your good friend and former colleague 
Senator Warren Magnuson.
    My name is Tim Winter, and I am President of the Parents 
Television Council. With almost 1.2 million members across the 
United States, the PTC is a nonpartisan, nonprofit, grassroots 
organization dedicated to protecting children and families from 
graphic sex, violence, and profanity. Many in the Congress know 
of the PTC mostly as a vocal advocacy group, but the lion's 
share of our efforts go into research and education. The PTC 
monitors every hour of prime-time broadcast entertainment 
programming and a growing amount of original cable programming.
    PTC media analysts enter, into a powerful computer 
database, every instance of sex, violence, profanity, 
disrespect for authority, and other program content that 
parents might find harmful to their children, and we make that 
information available, free of charge, on our website, so that 
parents and families can make more informed media choices.
    So, in the course of our work, Mr. Chairman, we, at the 
PTC, see pretty much everything. And when it comes to media 
violence, on television especially, the trend of what we're 
seeing today is not only concerning, it is frightening.
    This past January, the PTC released this report, called 
``Dying to Entertain.'' It analyzed the volume and degree of 
violence on prime-time television. The television season which 
just concluded last year was the most violent that PTC ever 
recorded, averaging 4.41 instances of violence per hour during 
prime time, or one instance every 13 and a half minutes, an 
increase of 75 percent since the 1998 television season. Over 
the course of a year, that means thousands of violent 
depictions are broadcast over the public airwaves when millions 
of children are in the audience.
    In addition to the marked increase in the quantity of 
violence, we are seeing several other very disturbing trends:
    First, the depictions of violence have become far more 
graphic, as we saw, far more realistic than ever before, 
thanks, in part, to enhanced computer graphics and special 
effects employed in television production today.
    Second, there is an alarming trend for violent scenes to 
include a sexual element. Rapists, sexual predators, and 
fetishists appear with increasing frequency on the prime-time 
programs.
    Third, we are now seeing the protagonist, the person the 
audience is supposed to identify with, as the perpetrator of 
the violent acts.
    And we are also seeing more children being depicted as the 
victims of violence.
    As you know, we prepared the DVD with the scene sampling. 
The scene where we saw the sniffing of the drugs off the 
sliced-open intestines, aired this last May 22nd, is called 
``NCIS,'' on CBS. And this aired at 8 p.m., 7 p.m. Central. 
And, Senator, that show did not have a ``V'' violence 
descriptor, so the V-Chip would not have worked, if a parent 
had attempted to set it.
    On an episode of ``CSI'' that we did not see, which 
normally airs at 9 o'clock Eastern, but often is repeated 
earlier in the evening, there was a scene on that tape where a 
woman, who had been having sex with her son for many years, and 
then her son became a psychotic serial rapist and was 
institutionalized, the mother took a job as a nurse at the 
institution so that she could continue to have sex with him. 
When she learned that her son was having sex with one of the 
male inmates, she killed the man, then had her son cover up the 
crime by bashing the dead man's head into the ground until it 
became a bloody, unrecognizable mess. Along comes another 
inmate, rubs his hands in the blood, and then hungrily smears 
it over his face as if he wants to devour it.
    The scene where we saw the forced oral rape, the man 
performing that oral rape was a police officer. The show is 
called ``The Shield,'' which began on expanded basic cable, and 
now airs in syndication on broadcast television. The Shield 
regularly features some of the most graphic violence, and, in 
particular, sexually graphic violence.
    The creator of another series on that same network, FX, 
Ryan Murphy, publicly stated that it might be his legacy to 
make possible a rear-entry sex scene on broadcast television. 
And, Senators, if you subscribe to a cable to satellite 
service, you are forced to pay almost $9 a year to the FX 
network so they can produce and air that kind of content.
    Eighty million Americans are also forced into that bundling 
scheme. And, as FCC Chairman Martin rightfully pointed out, 
that if a family must continue to pay for entertainment 
programming even when they object to it, there is little or no 
incentive for the programmers to change.
    As troubling as these content examples are, Senator, I am 
equally dismayed by the seeming contempt the industry has for 
anyone who would suggest reasonable restraint. Recently, the 
CEO of Time Warner decried this hearing, likening it to Nazi 
Germany. Every time the public and our public servants call for 
more responsible behavior, the industry refuses to have a 
meaningful dialogue or offer real solutions. Rather than 
working with you to address the negative impact the products 
have on children, they turn the conversation into a lecture on 
broadcast standards and the Constitution. Rather than 
acknowledging the scientific evidence manifested in over 1,000 
medical and clinical studies, they underwrite their own 
research and then point to its lone and differing conclusion. 
And, rather than focusing on their statutory public-interest 
requirements for using the public airwaves, they shift the 
conversation to entertainment in general, and invoke the always 
sobering term, ``chilling effect.''
    Senator Rockefeller. Mr. Winter, I don't want to interrupt 
you, but I failed to explain, at the beginning, that there is a 
5-minute rule for testimony, so that what you have to do is 
keep your eye on that little machine at the center to see which 
color it is. I see red. So, if you could finish in one 
sentence, it would be good.
    Mr. Winter. In one sentence?
    In closing, Senator--
    [Laughter.]
    Mr. Winter.--if I may offer a quote, sir--``Today, we are 
needing to be as responsible as we can possibly be, not just 
thinking of our own children, but our friends' and neighbors' 
children.'' This was spoken by Steven Spielberg. He understands 
the difference between the type of violence we're seeing here 
today, Senator, and entertainment where violence has been part 
of it for thousands of years, as part of storytelling.
    I thank you. I'll look forward to working with you, 
Senator, to find meaningful solutions here today.
    [The prepared statement of Mr. Winter follows:]

          Prepared Statement of Timothy F. Winter, President, 
                       Parents Television Council
    Good day Mr. Chairman, Mr. Vice Chairman and Senators. Thank you 
for inviting me to be here with you this morning to discuss this 
important subject. And may I begin Mr. Chairman and Mr. Vice Chairman, 
by saying what a personal honor it is for me to appear before this 
Committee, on whose staff I had the pleasure to serve under your good 
friend and former colleague, Warren Magnuson.
    My name is Tim Winter and I am President of the Parents Television 
Council. With almost 1.2 million members across the United States, the 
PTC is a non-partisan, non-profit, grassroots organization dedicated to 
protecting children and families from graphic sex, violence and 
profanity in entertainment.
    Many in the Congress know of the PTC mostly as a vocal advocacy 
group, but the lion' share of our effort goes into research and 
education. The PTC staff monitors every hour of primetime broadcast 
entertainment programming and a growing amount of original programming 
on basic cable. PTC media analysts enter into a powerful computer 
database every instance of sex, violence, profanity, disrespect for 
authority, and other program content that parents might find harmful to 
their children; and we make that information available free of charge 
on our website so that parents and families can make more informed 
media choices.
    So in the course of our work, Mr. Chairman, we at the PTC see 
pretty much everything. And when it comes to violence on television, 
the trend of what we are seeing today is not only concerning, it is 
frightening. In fact none of us would even be here today but for a 
level of media violence that approaches epidemic proportions.
    This past January the PTC released Dying to Entertain--our latest 
Special Report analyzing the volume and degree of violence on primetime 
television. The television season which concluded last year was the 
most violent that the PTC has ever recorded--averaging 4.41 instances 
of violence per hour during prime time, or one instance every 13\1/2\ 
minutes--an increase of 75 percent since the 1998 television season. 
Over the course of a year, that means many thousands of violent 
depictions are broadcast over the public airwaves at times when 
millions of children are in the audience.
    Between 1998 and 2006, violence increased in every time slot, 
including the so-called Family Hour of 8 p.m. Eastern, 7 p.m. Central 
Time. Last year nearly half (49 percent) of all episodes which aired 
during the study period contained at least one instance of violence. 56 
percent was person-on-person violence. And 54 percent of violent scenes 
contained either a depiction of death or an implied death.
    In addition to the marked increase in the quantity of violence, we 
are seeing several other disturbing trends. First, the depictions of 
violence have become far more graphic and more realistic than ever 
before, thanks in part to enhanced computer graphics and special 
effects employed in television production today. Second, there is an 
alarming trend for violent scenes to include a sexual element. Rapists, 
sexual predators and fetishists appear with increasing frequency on 
prime time programs. Third, we are now seeing the protagonist--the 
person the audience is supposed to identify with--as the perpetrator of 
the most violent acts. And lastly we are seeing more children being 
depicted as the victims of violence.
    Mr. Chairman, violence has played an important role in dramatic 
story-telling for thousands of years. But the state of television 
violence is nothing like it has ever been before. As former FCC 
Chairman Newt Minow recently noted, ``forty years ago I said television 
was a vast wasteland; now it is a toxic dump.''
    Even TV critics who generally praise shows that ``push the 
envelope'' were aghast at how grisly the TV networks' 2005-2006 season 
offerings were. The Washington Post suggested that the season was 
``dominated by a new brood of a relatively new breed: shows that are 
horrific on purpose, with gore as graphic and grisly as in many a 
monstrous movie.'' Rolling Stone said ``Welcome to prime-time-network 
and basic-cable television, where a bumper crop of bloodthirsty police 
procedurals and high-concept thrillers is making for perhaps the most 
violent, sadistic TV season ever.'' The Associated Press said, ``The 
body count in prime-time television these days rivals that of a war 
zone . . . [making] network TV home to an astonishing amount of blood 
`n' guts.''
    We as a nation have been talking about the problem of TV violence 
for a long time, and the industry has been providing excuses for the 
same duration. The House of Representatives held hearings more than 50 
years ago to explore the impact of television violence and concluded 
that the ``television broadcast industry was a perpetrator and 
deliverer of violence.'' In 1972 the Surgeon General's office conducted 
an overview of existing studies on television violence and concluded 
that it was a ``contributing factor to increases in violent crime and 
antisocial behavior.'' That was in 1972. As I will now illustrate, the 
manner in which violence is depicted today has changed drastically 
since 1972.
    We have prepared for your staff members a DVD with a sampling of 
scenes containing violence from recent television programs. Let me 
describe to you a few highlights or, more appropriately, a few low-
lights:
    During the May 22nd episode of NCIS that aired during the so-called 
``family hour'' of 8 p.m. Eastern time (7 p.m. CT/MT), a drug smuggler 
dies when the packets in his stomach containing the drugs release 
deadly amounts into his system. The drug dealer, who was waiting for 
the delivery, and the smuggler's sister, a desperate junkie, go to the 
hospital and attempt to retrieve the drugs from the smuggler's body.
    The scene shows the dead smuggler having his midsection sliced open 
and his blood-soaked organs pulled out of his body. The man's digestive 
tract is sliced open and white powder spills over his bloodied torso. 
When a fight ensues, one character stabs the drug dealer with a scalpel 
and another character shoots the drug dealer. Then the junkie-sister is 
shown with her face buried in her brother's bloody intestines as she 
snorts heroin off his dead body. This episode was rated TV-14, with no 
V content descriptor indicating violence.
    On an episode of C.S.I.--which normally airs at 9 p.m. (8 p.m. 
Central and Mountain times) and is often repeated at 8 p.m. ET/PT--a 
young man is murdered inside a mental institution. Investigators 
discover that the killer was one of the nurses in the mental ward and 
mother to one of the inmates. It turns out that the woman had been 
having sex with her son for many years. The boy became a psychotic 
serial rapist and was institutionalized. The woman continued to send 
her son love letters while he was institutionalized and eventually took 
a job as a nurse at the institution so that she could continue to have 
sex with him. When she learned that her son was having sex with one of 
the male inmates, she killed her rival by smothering him with a pillow, 
then had her son cover up her crime by bashing the dead man's head into 
the ground until it became a bloody, unrecognizable mess. Another 
inmate comes along, rubs his hands in the blood, and hungrily smears it 
all over his face as if he wants to devour it. The episode actually 
began with this horrific scene of brutality and gore--so any parent 
watching TV with their children who wasn't fast enough changing the 
channel, would have been subjected to this disturbing content. Because 
this program airs before 10 p.m., as many as 2 million children are in 
the viewing audience on any given week, according to Nielsen.
    A program called The Shield began on the advertiser-supported, 
expanded-basic cable network FX, and now the program airs on broadcast 
stations nationwide in syndication. This program has featured some of 
the most graphic violence and--in particular--graphic sexual violence 
ever seen on television--including premium subscription networks like 
HBO. In one episode, Vic Mackey--the series' anti-hero, a corrupt cop--
becomes enraged when he learns that Armadillo, a Mexican gang leader, 
burned one of his informants to death by ``necklacing'' him--placing 
tires around him so that he is immobilized, then dousing him with 
gasoline and setting him on fire. Vic brutally beats Armadillo, 
repeatedly kicking him and hitting him in the face with a heavy book as 
blood spatters on Vic's shirt and face. Vic drags Armadillo into the 
kitchen and turns on an electric stove burner, then pushes Armadillo's 
face into the red-hot coils of the burner. He pulls Armadillo's head 
back so that TV audience can see the melting and charred flesh on his 
face. When Vic's men finally pull him off, Armadillo's mouth is filled 
with blood, and Vic's face is covered with Armadillo's blood.
    In another episode of The Shield, Police Captain David Aceveda is 
forced at gunpoint to perform oral sex on a gang member. While holding 
the barrel of a gun to the policeman's mouth, the gang member asks him, 
``You ever suck a dick like a cell bitch, cop man? Huh?'' He threatens 
to kill the officer if he doesn't perform fellatio, and the officer is 
seen and heard gagging and whimpering in humiliation. The gang member 
then gets one of his friends to take a picture of the scene as he 
climaxes into the policeman's mouth. In the following season, Captain 
Aceveda repeatedly acted out violent rape fantasies with a prostitute.
    These basic cable examples appeared on the FX basic cable network. 
Ryan Murphy, the creator of another FX series, Nip/Tuck, publicly 
stated that it might be his legacy to make possible a rear-entry sex 
scene on broadcast television. And Senators, if you subscribe to a 
cable or satellite service, you are forced to pay almost $9.00 every 
year to the FX network so they can produce and air this kind of 
material. And with tens of millions of Americans forced into the 
industry's bundling scheme, FX reaps hundreds of millions of dollars 
each year to produce this material, and that is before they sell even 
one TV commercial. FCC Chairman Martin has rightfully pointed out that 
``if a family must continue to pay for programming even when they 
object to it, there is little or no incentive for programmers to 
respond.''
    This Committee has heard personally from cable distributors who 
would like to provide their customers with an opportunity to pick and 
choose--and pay for--only the networks they want. But they can't. As 
DISH Network CEO Charlie Ergen, and American Cable Association 
President Matt Polka have told you, the cable network media 
conglomerates won't allow it. So we must ask: are the cable industry's 
Washington insiders looking out for consumers and families, or are they 
protecting a business model that not only forces unwanted content into 
tens of millions of homes, but also makes them pay for it?
    As troubling as those content examples are, Mr. Chairman, I am 
equally disgusted by the seeming contempt the industry has for anyone 
who would suggest reasonable self-restraint. Last month the CEO of Time 
Warner hypocritically warned parents: ``visit the Holocaust museum in 
Washington and you'll see what happens when government gets control of 
the message.'' Yet no one is arguing that government should do any such 
thing. Are we to believe that the entertainment industry views the 
overwhelming concern of millions of parents and families with that 
level of disdain? If so, how can we believe anything they say about 
wanting to help parents protect children?
    Every time the public--and our public servants--call for more 
responsible behavior, the industry refuses to have a meaningful dialog 
or offer real solutions. Rather than coming before you to address the 
negative impact their products have on children, they turn the 
conversation into a Constitutional lecture and hire a legendary scholar 
to speak for them. Rather than acknowledging the scientific evidence 
manifested in over a thousand medical and clinical studies, they 
underwrite their own research and point to its differing, but 
uncorroborated, conclusion. And rather than focusing on their statutory 
public interest requirements for using the public airwaves, they shift 
the conversation to entertainment in general and invoke the always-
sobering term, ``chilling effect.'' Many TV executives have used this 
term publicly to denounce the FCC's Janet Jackson ruling and the impact 
it's had on their business. But I wonder how ``chilling'' things really 
are if, as we've read in TV industry trade papers, the Fox broadcast 
network will be airing a program this fall where an amorous monkey 
joins a man and woman in a sexual encounter.
    But I suppose the industry's behavior should come as no surprise. 
Look at their track record. After the Janet Jackson incident, 
television executives were quick to come before the Congress to pledge 
zero-tolerance for indecency. Shortly thereafter they filed a Federal 
lawsuit which would allow them to use the F-word at any time of the 
day, even in front of millions of children. And sadly they managed to 
find two judges in New York City who agreed to that preposterous abuse 
of the public airwaves.
    In a slap in the face to the Congress and to millions of outraged 
families, CBS will be arguing in front of the Third Circuit in 
September that the Super Bowl striptease was not indecent. To add 
insult to injury, a few years ago CBS' parent company signed a Consent 
Decree with the FCC admitting to violating broadcast decency law, 
agreeing to pay a fine and submitting to a detailed compliance plan to 
insure that indecent material would not meet its air during the times 
when children are most likely to be in the audience. To this day, there 
is no hint that CBS has implemented the terms of this Consent Decree.
    Through efforts like the ``TV Boss'' campaign, the industry 
promised you hundreds of millions of dollars to educate parents on 
content-blocking technologies, yet all objective data shows that 
parents still have no constructive grasp over the TV ratings system or 
the technologies that are reliant upon them.
    And speaking of the rating system, let's talk about parental 
controls for a moment. When the V-Chip was introduced the television 
industry denounced it as censorial heresy. That is, they denounced it 
until they found a way to manipulate what was supposed to be a simple 
and transparent prophylactic device. Instead the industry turned the V-
Chip into a means for even more graphic content while using it as an 
excuse to violate the broadcast decency law.
    Our research into the television ratings system has repeatedly 
concluded that the industry's application of it is arbitrary, 
inconsistent, capricious and self-serving. In a study we released this 
past April, content ratings descriptors were either inaccurate or 
missing two-thirds of the time. During the study period, not one single 
program on primetime broadcast television was rated TV-MA, meaning that 
the networks felt all of their content was appropriate for children as 
young as 14.
    Mr. Chairman, please understand that this is an industry that I 
love with every fiber of my being. I spent most of my career--more than 
20 years--working in the media industry, the majority of which was in 
broadcasting and cable television. It is a wonderful business, capable 
of producing not only enlightening, educating and entertaining 
programming, but it is also a lucrative business with profit margins 
that most industries can only dream of. But with the ability to deliver 
a product directly into every home in America comes a duty to serve the 
public interest. As Commissioner Copps stated in this very room, the 
term ``public interest'' appears no less than 112 times in the original 
law that addresses the use of the public airwaves. But by my count, the 
terms ``Nielsen Ratings'' or ``advertiser cost per thousand'' or 
``earnings per share'' never once appeared. I have publicly stated a 
number of times that ``public interest'' and ``corporate interest'' are 
not mutually exclusive. Sometimes the two do not see eye-to-eye, and 
when they don't, it is the public interest which must prevail. I ask 
you, Mr. Chairman, when does hurting children serve the public 
interest?
    Nobody on Capitol Hill needs help from me in reading data from a 
national poll, but last week we all received information that needs to 
be carefully considered here today. The highly respected Kaiser Family 
Foundation released data proving just how concerned parents are about 
this matter. Even though the vast majority of parents say they are 
closely monitoring the media behavior of their children, parents are so 
concerned about the harmful content that still reaches their kids that 
66 percent favor new regulation to limit the amount of sex and violence 
during the early evening hours. Let me say that again: two-thirds of 
parents favor new regulation. Clearly the status quo is not working.
    Mr. Chairman, the entertainment industry could help if it wanted 
to, but it doesn't want to. Producers should step back and reconsider 
their seeming urge for ``one-upsmanship'' in their depictions of ever-
more-graphic violent content. Broadcasters could air graphic material 
later at night, when children are in bed. And the cable industry could 
allow its customers to select and pay for the cable networks they want 
to purchase.
    The industry knows graphic and indecent material is inappropriate 
for certain audiences and at certain times. They embrace rules to 
prevent words and actions from being used in their workplace which 
could be sexually harassing. In fact the content samples above could 
constitute grounds for dismissal of a network employee if he/she acted 
in such a way to a coworker. And the industry regularly incorporates 
into employment agreements what is called a Morals Clause, allowing 
them to fire an employee or an artist for broadly-defined behavior. Yet 
they somehow justify delivering material like I've just described into 
living rooms around the country.
    When it comes to behaving responsibly, sadly the industry is the 
model of inertia. Only when forced by the public through you is there 
every any positive movement undertaken by the industry.
    Mr. Chairman, I know in my heart that the industry is capable of 
solving this issue if they truly wanted to. The people I worked with 
during my twenty-plus years in the industry are brilliant and creative. 
In fact the industry did implement solutions for decades in the past. 
But the question is: will they help to solve this issue today? If the 
National Rifle Association can help the Congress pass consensus gun 
control legislation, then I believe Hollywood can help the Congress 
deal with this issue. Moreover, it must.
    Representing more than a million concerned families, we stand ready 
to work with you to forge real solutions to these problems. I hope the 
industry will step up and join us.
            Thank you.

    Senator Rockefeller. Thank you very much, Mr. Winter.
    Mr. Liguori?

   STATEMENT OF PETER LIGUORI, PRESIDENT, ENTERTAINMENT, FOX 
                      BROADCASTING COMPANY

    Mr. Liguori. Thank you, Senator Rockefeller, Co-Chairman 
Stevens, members of the Senate Commerce Committee. I appreciate 
the opportunity to appear before you today. I ask that my full 
written testimony and attachments be submitted for the record.
    Senator Rockefeller. Will be done.
    Mr. Liguori. I approach this issue from a professional, 
personal, and civic perspective. Professionally, as President 
of the FOX Broadcasting Company, I'm charged with putting on 
the air a diverse slate of entertainment programming. 
Personally, as a parent, I ensure that the shows watched by my 
13-year-old daughter, Susannah, and my 15-year-old son, 
Jackson, are appropriate for their age and maturity level. 
Finally, as a citizen, I'm deeply concerned about the problem 
of violence in our society. At the same time, I'm committed to 
the First Amendment right to free speech.
    We, at FOX, take seriously our responsibility to inform 
viewers about our content. We have a large department of 
broadcast standards professionals whose job it is, is to ensure 
that our shows comply with the law and our own internal 
stringent standards. The department is involved at every step 
in the development, production, and broadcast of our 
entertainment programming. They meticulously review more than 
500 hours of programming and tens of thousands of commercials 
per year. They're responsible for rating each episode of each 
show, providing both an age-based rating and content 
descriptors, where necessary. These ratings are shown at the 
start of every program on our air and after each commercial 
break. When appropriate, we also place an additional full-
screen advisory at the start of the program to provide a 
warning to parents to pay close attention before they allow 
their kids to tune in.
    On the poster in front of you, we have a visual depiction 
of what the ratings bug and advisories look like for ``24.'' 
Note that the advisory is also provided through a voice-over--
in this case, by the star of ``24,'' Keifer Sutherland.
    We also air public-service announcements as part of an 
industrywide media campaign, spearheaded by the late Jack 
Valenti, that urges parents to take charge of their children's 
TV viewing.
    Again, the posters in front of you are pictures of one of 
the PSAs and a print ad. The PSAs run during prime time in some 
of our most popular shows, including ``American Idol.'' This 
PSA campaign refers parents to a website, thetvboss.org, where 
we provide detailed information about parental controls and the 
TV rating system.
    We take all these steps to help parents make informed 
decisions. As we speak, the industry is looking at ways to 
improve the consistency of the TV rating system. Monthly, we, 
at FOX, review our standards and practices to ensure that we 
are adjusting to an ever-changing media environment.
    Beyond our civic duty, we do this because it's good 
business. Our goal is twofold: to draw viewers by providing 
shows that they want to see, and to keep them by giving them 
programming they expect to see. It does us no good to surprise 
parents with inappropriate content, because such surprises 
could negatively impact future FOX viewing.
    Teamed with our efforts, parents have a host of 
technological and informational tools at their disposal, 
including the V-Chip, cable and satellite parental controls, 
and third-party rating tools. And, above all, let's not forget 
the most effective and widely used tool of all: parents' 
individual discretion. A TV Watch study released yesterday 
found that 73 percent of all parents monitor what their 
children watch. This number goes up to 87 percent for those 
parents who have children under the age of 11. As we will hear 
from Professor Tribe, given the inherent difficulty of defining 
violence and drawing lines about what is appropriate, any 
attempt to regulate the depiction of violence could be found 
unconstitutional, and it would have a profound chilling effect 
on the creative community's ability to produce authentic 
programming reflective of the world we live in.
    Let me be clear, I share your concern about violence in our 
society. But there isn't an easy solution. The studies on the 
relationship between TV violence and violence in young people 
are clear. Three reports produced by our Government--namely, 
the Surgeon General, the FTC, and the FCC--have concluded there 
may be a connection between television and violence, but no 
causal link has been established. This distinction is 
critically important. Without a causal link, we cannot justify 
imposing content limits on our media. Should we, as parents, do 
more, nonetheless, to minimize our kids' exposure to TV 
violence? Absolutely. But this is the job of parents, not of 
the Government.
    In closing, parents have the information, the tools, and, 
above all, the responsibility to decide which television shows 
are right for themselves and their children. We believe we 
should keep it that way.
    Thank you.
    [The prepared statement of Mr. Liguori follows:]

    Prepared Statement of Peter Liguori, President, Entertainment, 
                        Fox Broadcasting Company
    Chairman Inouye, Co-Chairman Stevens, Members of the Senate 
Commerce Committee, I appreciate the opportunity to appear before you 
today to talk about the issue of television violence. I ask that my 
full written testimony and attachments be submitted for the record.
    I approach this issue from a professional, personal and civic 
perspective. Professionally, as President of Entertainment of Fox 
Broadcasting, I am charged with putting on the air a diverse slate of 
programming.
    Personally, as a parent, I ensure that the shows watched by my 13-
year old daughter, Susannah, and 15-year old son, Jackson, are 
appropriate for their age and their maturity level.
    Finally, as a citizen, I am deeply concerned about the problem of 
violence in our society. At the same time, I am committed to the First 
Amendment right to free speech.
    We at Fox take seriously our responsibility to inform viewers about 
our content. We have a large department of Broadcast Standards 
professionals whose job it is to ensure that our shows comply with the 
law and our own stringent internal standards. These Standards 
professionals are involved at every step in the development, production 
and broadcast of our entertainment programming. They meticulously 
review more than 500 hours of programming and tens of thousands of 
commercials a year. They are also responsible for rating each episode 
of every show, providing both an age-based rating (such as TV-PG or TV-
14) and content descriptors where necessary (``S'' for sexual content, 
``L'' for language, or ``V'' for violence).
    These ratings are shown at the start of every program on our air, 
and after each commercial break. When appropriate, we also place an 
additional, full screen advisory at the start of the program to provide 
a warning to parents to pay close attention before they allow their 
kids to tune in. On the poster in the front of the hearing room, we 
have a visual depiction of what the ratings bug and advisories look 
like for Fox's 24. Note that the advisory is also provided through a 
voiceover, in this case by the star of 24, Kiefer Sutherland.
    We also air public service announcements as part of an industrywide 
media campaign that urges parents to take charge of their children's TV 
viewing. In the posters in front of you are pictures of one of the PSAs 
and a print ad. The PSAs run during prime time in some of our most 
popular shows, like American Idol. This PSA campaign refers parents to 
a website--thetvboss.org--where we provide detailed information about 
parental controls and the TV rating system.
    We take all these steps to help parents make informed viewing 
decisions. And we are always striving to improve our safeguards. As we 
speak, the industry is looking at ways to improve the consistency of 
the TV ratings system. Monthly, we at Fox review our Standards & 
Practices systems to ensure that we are adjusting to an ever-changing 
media environment.
    Beyond our civic duty, we do this because it's good business. Our 
goal is twofold: to draw viewers by providing shows they want to see 
and keep them by giving them programming they expect to see. It does us 
no good to surprise parents with inappropriate content because such 
surprises could impact future Fox viewing.
    Teamed with our efforts, parents have a host of technical and 
informational tools at their disposal, including the V-Chip, cable and 
satellite parental controls and third-party rating tools. And, above 
all, let's not forget the most effective and widely-used tool: parents' 
individual discretion. (See Attachment 1.)
    The Kaiser Family Foundation last week released a survey which 
found that two-thirds of parents monitor their children's media use. 
Clearly, monitoring is as natural and simple as other daily parental 
tasks such as telling kids to look both ways before crossing the 
street, encouraging them to wear sunscreen, or telling them to eat 
their vegetables.
    Given the inherent difficulty of defining violence and drawing 
lines about what is appropriate, any attempt to regulate the depiction 
of violence seemingly would be found unconstitutional. And it would 
have a profound chilling effect on the creative community's ability to 
produce authentic programming reflective of the world we live in.
    Let me be clear: I share your concern about violence in our 
society. But there isn't an easy solution. The studies on the 
relationship between TV violence and violence in young people are 
clear. Three reports produced by our government--the Surgeon General, 
the FTC, and the FCC--have concluded that, while there may be a 
CONNECTION between television and violence, there is no CAUSAL link. 
This distinction is critically important. Without a causal link, we 
cannot justify imposing content limits on the media. (See Attachments 2 
and 3.)
    Should we as parents, nonetheless, do our jobs to minimize our 
kids' exposure to violent television? ABSOLUTELY. But this is the job 
of parents, not the government.
    In closing, parents have the information, the tools and, above all, 
the responsibility to decide which television shows are right for 
themselves and their children. We believe we should keep it that way. 
(See Attachment 4.)

    Attachments* to Written Testimony:
---------------------------------------------------------------------------
    \*\ All attachments are retained in Committee files.

    1.--Adam Thierer, Progress and Freedom Foundation, ``The Right Way 
---------------------------------------------------------------------------
to Regulate Violent TV'' (2007).

    2.--Professor Jonathan Freedman, ``Television Violence and 
Aggression: Setting the Record Straight'' (2007).

    3.--Professor Jonathan Freedman, ``Inquiry on the Effects of 
Televised Violence: What Does the Scientific Research Show?'' (2004).

    4.--``From Kalamazoo to Chicago, Americans voice their opinion: 
Keep the FCC Away from My TV!'' Top Editorials from around the Nation.

    Senator Rockefeller. Thank you.
    Dr. Kunkel?

          STATEMENT OF DALE KUNKEL, Ph.D., PROFESSOR, 
       DEPARTMENT OF COMMUNICATION, UNIVERSITY OF ARIZONA

    Dr. Kunkel. Good morning.
    I've studied children and media issues for over 20 years, 
and I'm one of several researchers who led the National 
Television Violence Study, a project widely recognized as one 
of the largest scientific studies of media violence. In my 
remarks here today, I'm going to briefly report some key 
findings from that project, and also try to summarize the state 
of knowledge in the scientific community about the effects of 
media violence on children.
    You all know concern about the effects of harmful violence 
on television dates back to the 1950s, and the legitimacy of 
that concern has been corroborated by extensive scientific 
research that's accumulated over the past 40 years. Indeed, in 
reviewing the totality of empirical evidence regarding the 
impact of media violence, the conclusion that exposure to 
violent portrayals poses a risk of harmful psychological 
effects on children has been reached by the United States 
Surgeon General, the National Institute of Mental Health, the 
National Academy of Sciences, the American Medical Association, 
the American Psychological Association, the American Academy of 
Pediatrics, and a host of other scientific and public health 
agencies and organizations.
    These harmful effects are grouped into three primary 
categories. First, and most importantly, children learn 
aggressive attitudes and behaviors from watching TV violence. 
Second, they become desensitized, or have an increased 
callousness toward victims of violence in society. And, third, 
they also develop an exaggerated fear of being victimized by 
violence.
    While all of these effects are adverse outcomes, it is the 
first--an increased propensity for violence later in life--that 
is at the core of public health concern about children's 
exposure to televised violence.
    I should interject here that there are many different types 
of concerns that apply to this topic area--moral and ethical. 
The points I want to emphasize are public health concerns.
    Violence in our society is a public health issue. The 
statistical relationship between children's exposure to violent 
portrayals and their subsequent aggressive behavior has been 
shown to be stronger than the relationship between asbestos 
exposure and the risk of laryngeal cancer, the relationship 
between condom use and the risk of contracting HIV, and 
exposure to secondhand smoke in the workplace and the risk of 
lung cancer. There is no controversy in the medical public-
health or social-science communities about the risks of harmful 
effects from children's exposure to TV violence; rather, there 
is strong consensus that such exposure is a significant public 
health concern.
    Now, besides studying the effects of TV violence, research 
has also examined the nature and extent of violence on 
television, and this body of evidence affords several 
conclusions across studies.
    First, violence is widespread across the television 
landscape. Turn on a television set and pick a channel at 
random. The odds are better than 50/50 that the program you 
encounter will contain violent material. Sixty percent of 
approximately 10,000 programs that were sampled for the 
National Television Violence Study contained violent material. 
That study identified an average of 6,000 violent interactions 
in a single week of programming across 23 channels that we 
studied, including both broadcast and cable networks. More than 
half of the violent shows contained lethal acts, and roughly 
one in four included violence depicting the use of a gun.
    A second content-based conclusion: Most violence on 
television is presented in a manner that actually enhances its 
risk of harmful effects on child viewers. More specifically, 
most violence on television follows a highly formulaic pattern 
that is both sanitized and glamorized. By ``sanitized,'' I mean 
portrayals that fail to show realistic harms to victims, both 
from a short- and long-term perspective. And by ``glamorized,'' 
I mean violence that is performed by attractive role models who 
are often justified for acting aggressively and who suffer no 
remorse, criticism, or penalty for their violent behavior. And 
it's quite unfortunate that these types of portrayals enhance 
the risk of harmful effects.
    In sum, it's clear that the level of violence on television 
poses cause for concern. The question is, what does all this 
mean for public policymakers? While exposure to media violence 
is not necessarily the most potent factor contributing to 
violence in society, it is certainly the most pervasive. 
Millions of children spend an average of 20 hours or more per 
week watching TV, and this cumulative exposure to violent 
images shapes young minds in unhealthy ways. Given the free 
speech guarantees of the First Amendment, the courts have ruled 
that there must be evidence of a compelling governmental 
interest in order for Congress to take action that in any way 
would regulate television. In my view, the empirical evidence 
documenting the risk of harmful effects from children's 
exposure to TV violence clearly meets this threshold. And I 
think it's important to underscore that former Attorney General 
Janet Reno offered an identical opinion to this very Committee 
when she testified before it in the 1990s.
    To conclude, the scientific evidence about the effects of 
TV violence on children cannot clarify which path is best for 
policymakers to pursue in addressing this concern. That 
decision rests with your value judgments based upon the 
relative importance that each of you place on the protection of 
children, as compared to other competing factors, such as 
protecting free speech. But, when you make that judgment, as 
each member on this Committee is ultimately going to be asked 
to do, it is critical that you understand that TV violence 
harms large numbers of children in this country and 
significantly increases violence in our society.
    [The prepared statement of Dr. Kunkel follows:]

  Prepared Statement of Dale Kunkel, Ph.D., Professor, Department of 
                  Communication, University of Arizona
    I have studied children and media issues for over 20 years, and am 
one of several researchers who led the National Television Violence 
Study (NTVS) in the 1990s, a project widely recognized as the largest 
scientific study of media violence. In my remarks here today, I will 
briefly report some key findings from the NTVS project, as well as 
summarize the state of knowledge in the scientific community about the 
effects of media violence on children.
The Effects of Television Violence
    Concern on the part of the public and Congress about the harmful 
influence of media violence on children dates back to the 1950s and 
1960s, and remains strong today. The legitimacy of that concern is 
corroborated by extensive scientific research that has accumulated over 
the past 40 years. Indeed, in reviewing the totality of empirical 
evidence regarding the impact of media violence, the conclusion that 
exposure to violent portrayals poses a risk of harmful effects on 
children has been reached by the U.S. Surgeon General, the National 
Institute of Mental Health, the National Academy of Sciences, the 
American Medical Association, the American Psychological Association, 
the American Academy of Pediatrics, and a host of other scientific and 
public health agencies and organizations.
    These harmful effects are grouped into three primary categories: 
(1) children's learning of aggressive attitudes and behaviors; (2) 
desensitization, or an increased callousness toward victims of 
violence; and (3) increased or exaggerated fear of being victimized by 
violence. While all of these effects reflect adverse outcomes, it is 
the first--an increased propensity for violent behavior--that is at the 
core of public health concern about televised violence. The statistical 
relationship between children's exposure to violent portrayals and 
their subsequent aggressive behavior has been shown to be stronger than 
the relationship between asbestos exposure and the risk of laryngeal 
cancer; the relationship between condom use and the risk of contracting 
HIV; and exposure to second-hand smoke in the workplace and the risk of 
lung cancer. There is no controversy in the medical, public health, and 
social science communities about the risk of harmful effects from 
children's exposure to media violence. Rather, there is strong 
consensus that exposure to media violence is a significant public 
health concern.
Key Conclusions about the Portrayal of Violence on Television
    Drawing upon evidence from the National Television Violence Study, 
as well as other related research, there are several evidence-based 
conclusions that can be drawn regarding the presentation of violence on 
television.
1. Violence is widespread across the television landscape.
    Turn on a television set and pick a channel at random; the odds are 
better than 50/50 that the program you encounter will contain violent 
material. To be more precise, 60 percent of approximately 10,000 
programs sampled for the National Television Violence Study contained 
violent material. That study identified an average of 6,000 violent 
interactions in a single week of programming across the 23 channels 
that were examined, including both broadcast and cable networks. More 
than half of the violent shows (53 percent) contained lethal acts, and 
one in four of the programs with violence (25 percent) depicted the use 
of a gun.
2. Most violence on television is presented in a manner that increases 
        its risk of harmful effects on child-viewers.
    More specifically, most violence on television follows a highly 
formulaic pattern that is both sanitized and glamorized.
    By sanitized, I mean that portrayals fail to show realistic harm to 
victims, both from a short and long-term perspective. Immediate pain 
and suffering by victims of violence is included in less than half of 
all scenes of violence. More than a third of violent interactions 
depict unrealistically mild harm to victims, grossly understating the 
severity of injury that would occur from such actions in the real 
world. In sum, most depictions sanitize violence by making it appear to 
be much less painful and less harmful than it really is.
    By glamorized, I mean that violence is performed by attractive role 
models who are often justified for acting aggressively and who suffer 
no remorse, criticism, or penalty for their violent behavior. More than 
a third of all violence is committed by attractive characters, and more 
than two-thirds of the violence they commit occurs without any signs of 
punishment.
    Violence that is presented as sanitized or glamorized poses a much 
greater risk of adverse effects on children than violence that is 
presented with negative outcomes such as pain and suffering for its 
victims or negative consequences for its perpetrators.
3. The overall presentation of violence on television has remained 
        remarkably stable over time.
    The National Television Violence Study examined programming for 3 
years in the 1990s and found a tremendous degree of consistency in the 
pattern of violent portrayals throughout the television landscape. 
Across the entire study of roughly 10,000 programs, the content 
measures which examined the nature and extent of violence varied no 
more than a percent or two from year to year. Similar studies that have 
been conducted since that time have produced quite comparable results.
    This consistency clearly implies that the portrayal of violence on 
television is highly stable and formulaic--and unfortunately, this 
formula of presenting violence as glamorized and sanitized is one that 
enhances its risk of harmful effects for the child audience.
    In sum, the evidence clearly establishes that the level of violence 
on television poses substantial cause for concern. It demonstrates that 
violence is a central aspect of television programming that enjoys 
remarkable consistency and stability over time.
Implications for Public Policy
    It is well established by a compelling body of scientific evidence 
that television violence poses a risk of harmful effects for child-
viewers. While exposure to media violence is not necessarily the most 
potent factor contributing to real world violence and aggression in the 
United States today, it is certainly the most pervasive. Millions of 
children spend an average of 20 or more hours per week watching 
television, and this cumulative exposure to violent images can shape 
young minds in unhealthy ways.
    Given the free speech guarantees of the First Amendment, the courts 
have ruled that there must be evidence of a ``compelling governmental 
interest'' in order for Congress to take action that would regulate 
television content in any way, such as the indecency regulations 
enforced by the FCC. In my view, the empirical evidence documenting the 
risk of harmful effects from children's exposure to televised violence 
clearly meets this threshold, and I should note that former Attorney 
General Janet Reno offered an identical opinion to this Committee when 
she testified before it on this same issue in the 1990s.
    There has been a lot of talk in recent weeks about the U.S. Court 
of Appeals (2nd Circuit) ruling regarding ``fleeting expletives'' that 
were cited as indecent by the FCC (Fox et al., v. FCC, June 4, 2007). 
Some have suggested this ruling threatens the future of any content-
based television regulation. While I am not a legal expert, let me draw 
several important distinctions between this indecency case and the 
situation policy-makers face with the issue of television violence. 
First, there is no clear foundation of empirical evidence to document 
the effects of children's exposure to indecent material in any 
quantity, much less modest and fleeting examples of it. In contrast, 
there is an elaborate, solid foundation of evidence regarding the 
cumulative effects of televised violence on children. While ``fleeting 
expletives'' occur occasionally on television, they are generally quite 
rare. In contrast, violent portrayals are not only common, they are 
pervasive across the television landscape, and are found in a majority 
of programs.
    Indeed, it is the cumulative nature of children's exposure to 
thousands and thousands of violent images over time that constitutes 
the risk of harmful effects. Just as medical researchers cannot 
quantify the effect of smoking one cigarette, media violence 
researchers cannot specify the effect of watching just a single violent 
program. But as exposure accrues over time, year in and year out, a 
child who is a heavy viewer of media violence is significantly more 
likely to behave aggressively. This relationship is the same as that 
faced by the smoker who lights up hour after hour, day after day, over 
a number of years, increasing their risk of cancer with every puff.
    The scientific evidence about the effects of televised violence on 
children cannot clarify which path is the best for policymakers to 
pursue to address the problems that research in this area has 
identified. That decision rests more in value judgments, based upon the 
relative importance that each of you place on protecting children's 
health as contrasted with the other competing interests involved, such 
as freedom of speech concerns. But when you make that judgment--as each 
Member of this committee will eventually be called upon to do--it is 
critical that you understand that television violence harms large 
numbers of children in this country, and significantly increases 
violence in our society.
    To conclude, the research evidence in this area establishes clearly 
that the level of violence on television poses substantial cause for 
concern. Content analysis studies demonstrate that violence is a 
central aspect of television programming that enjoys remarkable 
consistency and stability over time. And effects research, including 
correlational, experimental, and longitudinal designs, converge to 
document the risk of harmful psychological effects on child-viewers. 
Collectively, these findings from the scientific community make clear 
that television violence is a troubling problem for our society. I 
applaud this Committee for considering the topic, and exploring 
potential policy options that may reduce or otherwise ameliorate the 
harmful effects of children's exposure to television violence.

    Senator Rockefeller. Thank you, sir.
    Mr. Jeff McIntyre, the American Psychological Association.

       STATEMENT OF JEFF J. McINTYRE, SENIOR LEGISLATIVE 
  AND FEDERAL AFFAIRS OFFICER, PUBLIC POLICY OFFICE, AMERICAN 
                   PSYCHOLOGICAL ASSOCIATION

    Mr. McIntyre. Good morning. I'm Jeff McIntyre, and I'm 
honored to be here today to represent the American 
Psychological Association.
    The APA is the largest organization representing 
psychology, and has over 148,000 members and affiliates working 
to advance psychology as a science, as a profession, and as a 
means of promoting health education and human welfare.
    My policy experience related to children and the media 
includes serving as a negotiator for the development of the 
current television rating system, as an advisor to the Federal 
Communications Commission's V-Chip Task Force, and as a current 
member of the Oversight Monitoring Board for the Television 
Rating System.
    I also co-chair the Children's Media Policy Coalition, a 
national coalition of public-health, child advocacy, and 
education groups, which includes among them the American 
Academy of Pediatrics, Children Now, and the National PTA.
    In the late 1990s, tragic acts of violence in our schools 
directed our Nation's attention to the serious problem of youth 
violence. School shootings in Paducah, Kentucky; Jonesboro, 
Arkansas; Edinboro, Pennsylvania; Springfield, Oregon; and 
Littleton, Colorado, and, more recently, in Blacksburg, 
Virginia, have brought about a national conversation of the 
origins of youth violence and what we, as parents, as 
psychologists, and as public policymakers, can do to prevent 
more incidents of violence.
    Years of psychological research on violence prevention and 
child development has helped inform and continues to address 
this current need. While the foundations of acts of violence 
are complex and variable, certain risk factors have been 
established in the psychological literature. Among the factors 
that place youth at risk for committing an act of violence is 
exposure to violence. This includes, but is not limited to, 
acts of violence in the media. Foremost in the conclusions 
drawn on the basis of more than 30 years of research 
contributed by APA members, such as the U.S. Surgeon General's 
report in 1972, the National Institute of Mental Health's 
report in 1982, and, as Dr. Kunkel just referred to, the 
National Television Violence Study, shows that repeated 
exposure to violence in the mass media places children at risk 
for increases in aggression, desensitization to acts of 
violence, and unrealistic increases in fear of becoming a 
victim of violence.
    This research has provided the foundation upon which 
representatives of the public health community, comprised of 
the American Psychological Association, the American Academy of 
Pediatrics, and the American Medical Association issued a 
landmark consensus statement in 2000 regarding the state of the 
science on the effects of media violence on children. Certain 
psychological facts are well established in this debate. As APA 
member Dr. Rowell Huesmann, of the University of Michigan, 
stated before this very Committee, just as every cigarette you 
smoke increases the chances that someday you will get cancer, 
every exposure to violence increases the chances that someday a 
child will behave more violently than he or she otherwise 
would.
    Hundreds of studies have confirmed that exposing our 
children to a steady diet of violence makes them more violence 
prone. The psychological processes here are not mysterious. 
Children learn by observing others. Mass media and the 
advertising world provide a very attractive window for these 
observations. Excellent children's pro-social programming, such 
as Sesame Street, and pro-social marketing, such as that around 
helmets for skateboarding, are to be commended and supported. 
Psychological research shows that what is responsible for the 
effectiveness of good children's programming and pro-social 
marketing is that children learn from their media environment. 
If children can learn positive behaviors this way, they can 
learn harmful ones, as well.
    As I mentioned before this Committee last year, the rating 
system merits attention in this discussion. There continues to 
be concern arising from the ambiguity and the implementation in 
the current television rating system. The rating system can be, 
and has been, undermined by the marketing efforts of the very 
groups responsible for its implementation and effectiveness; 
for instance, marketing adult rated programming to children. 
This displays a significant lack of accountability and should 
be considered when proposals for industry self-regulation are 
discussed. At the very least, the industry is failing to 
actively promote its rating system, except in response to 
possible government oversight.
    Where the vast amount of scientific data and agreement in 
the public health community is, regarding children's health, is 
that exposure to violence in the media is a significant concern 
and risk factor for individual children's health.
    There is also a growing body of research on the health 
impact of sexualized images, on young girls specifically. This 
was detailed in the recent APA Task Force Report on the 
Sexualization of Girls.
    Now, in terms of the recent Circuit Court ruling, it's 
important to mention that there is very little scientific 
evidence that documents the effects of fleeting expletives on 
children. This is not to say it's not a concern, as many 
parents groups, such as Mr. Winter's groups, will point out; 
however, in these instances, if the intent of regulating speech 
is concerned with the exposure of children--and that's 
referencing the original Pacifica case--then that concern is 
about the harm that is done to children.
    Now, if harm or risk to children is the concern, then we 
must establish a standard from which all children may benefit 
equally. That foundation should be a health-based standard, 
based on the decades of child psychology and research on child 
development.
    We know exposure----
    Senator Rockefeller. Sir, your time is about up, so if you 
could conclude.
    Mr. McIntyre. Yes, sir. I'll conclude by saying thank you 
for having me.
    [Laughter.]
    [The prepared statement of Mr. McIntyre follows:]

Prepared Statement of Jeff J. McIntyre, Senior Legislative and Federal 
     Affairs Officer, Public Policy Office, American Psychological 
                              Association
    Good morning. I am Jeff McIntyre, and I am honored to be here today 
to represent the American Psychological Association (APA). The APA is 
the largest organization representing psychology and has over 148,000 
members and affiliates working to advance psychology as a science, a 
profession, and as a means of promoting health, education, and human 
welfare.
    My years of policy experience related to children and the media 
include serving as a negotiator for the development of a television 
ratings system, as an advisor to the Federal Communications 
Commission's V-Chip Task Force, and as a current member of the 
Oversight Monitoring Board for the television ratings system. I also 
co-chair the Children's Media Policy Coalition, a national coalition of 
public health, child advocacy, and education groups, including the 
American Academy of Pediatrics, Children Now, and the National PTA.
    In the late 1990s, tragic acts of violence in our schools directed 
our Nation's attention to the serious problem of youth violence. School 
shootings in Paducah, Kentucky; Jonesboro, Arkansas; Edinboro, 
Pennsylvania; Springfield, Oregon; and Littleton, Colorado, and, more 
recently, in Blacksburg, Virginia, have brought about a national 
conversation on the origins of youth violence and what we--as parents, 
psychologists, and public policymakers--can do to prevent more 
incidents of violence.
    Years of psychological research on violence prevention and child 
development has helped inform, and continue to address, this urgent 
need. While the foundations of acts of violence are complex and 
variable, certain risk factors have been established in the 
psychological literature. Among the factors that place youth at risk 
for committing an act of violence are exposure to acts of violence. 
This includes, but is not limited to, those in the media.
    Foremost, the conclusions drawn on the basis of more than 30 years 
of research contributed by APA members--as highlighted in the U.S. 
Surgeon General's report in 1972, the National Institute of Mental 
Health's report in 1982, and the three-year National Television 
Violence Study in the 1990s--shows that repeated exposure to violence 
in the mass media places children at risk for:

   increases in aggression;

   desensitization to acts of violence;

   and unrealistic increases in fear of becoming a victim of 
        violence, which results in the development of other negative 
        characteristics, such as mistrust of others.

    This research provided the foundation upon which representatives of 
the public health community--comprised of the American Psychological 
Association, the American Academy of Pediatrics, and the American 
Medical Association--issued a landmark consensus statement in 2000 
regarding the state-of-the-science on the effects of media violence on 
children.
    Certain psychological facts are well established in this debate. As 
APA member Dr. Rowell Huesmann of the University of Michigan stated 
before the Senate Commerce Committee--just as every cigarette you smoke 
increases the chances that, someday, you will get cancer, every 
exposure to violence increases the chances that, some day, a child will 
behave more violently than he or she otherwise would.
    Hundreds of studies have confirmed that exposing our children to a 
steady diet of violence makes them more violence prone. The 
psychological processes here are not mysterious. Children learn by 
observing others. Mass media and the advertising world provide a very 
attractive window for these observations.
    Excellent children's pro-social programming (such as Sesame Street) 
and pro-social marketing (such as that around helmets for 
skateboarding) are to be commended and supported. Psychological 
research shows that what is responsible for the effectiveness of good 
children's programming and pro-social marketing is that children learn 
from their media environment. If children can learn positive behaviors 
this way, they can learn harmful ones as well.
    As I mentioned before this committee last year, the ratings system 
merits attention in this discussion. There continues to be concern 
arising from the ambiguity in the implementation of the current ratings 
system. The ratings system can be undermined by the marketing efforts 
of the very groups responsible for its implementation and effectiveness 
(e.g., marketing adult-rated programs to children). This displays a 
significant lack of accountability and should be considered when 
proposals for industry self-regulation are discussed. At the very 
least, the industry is failing to actively promote its rating system, 
except in response to possible government oversight.
    Where the vast amount of scientific data and agreement in the 
public health community is--regarding children's health--is that 
exposure to violence in the media is a significant concern and risk 
factor for individual children's health. There is also a growing body 
of research on the health impact of sexualized images--on young girls 
specifically--as detailed in the recent APA Task Force Report on the 
Sexualization of Girls.
    In terms of the recent Circuit court ruling, it's important to 
mention that there is very little scientific evidence that documents 
the effects of ``fleeting expletives'' on children. This is not to say 
that it is not a concern--as many parents groups will point out. 
However, in these instances, if the intent of regulating speech is 
concerned with the exposure of children--to reference the original 
Pacifica case--then that concern is about the harm that is done to 
children.
    If harm or risk to children is the concern, then we must establish 
a standard upon which all children may benefit equally. That foundation 
should be a health based standard, based on decades of child psychology 
and research on child development.
    We know exposure to violence is a risk factor for committing later 
acts of violence. The more a child is exposed to violence--in the 
schools, in the family, in the media--the more prone they are to 
committing acts of violence later in life.
    In conclusion, a detailed, content-based ratings system is a vital 
step toward giving parents the information they need to make choices 
about their children's media habits. Decades of psychological research 
bear witness to the potential harmful effects for our children and our 
Nation if these practices continue.
    Chairman Inouye and distinguished members of the Committee, thank 
you for inviting me to present this testimony today. Please regard me 
and the American Psychological Association as a resource to the 
Committee in your deliberations on this important matter.

    Senator Rockefeller. Mr. Tribe, you'll forgive me for this, 
I hope--you probably won't, but it needs to be said, because 
you're such a national figure, associated more with the Supreme 
Court than with testifying here--but it should be known by my 
colleagues that you come here as a consultant for cable, 
networks and movies.

          STATEMENT OF LAURENCE H. TRIBE, CARL M. LOEB

      UNIVERSITY PROFESSOR, HARVARD UNIVERSITY, PROFESSOR

           OF CONSTITUTIONAL LAW, HARVARD LAW SCHOOL;

            ON BEHALF OF THE AD HOC MEDIA COALITION

    Mr. Tribe. Thank you, Mr. Chairman. I'm trying to turn the 
microphone on. Is it on?
    Senator Rockefeller. Yes, it is.
    Mr. Tribe. I'm honored to be here, Mr. Chairman. I am here 
as a consultant, but I've made it clear in a footnote to my 
testimony that I am saying what I believe and only what I 
believe even though in some instances it is not what those that 
I'm consulting for believe. I'm here, not representing Harvard, 
not representing any particular group, but stating my own 
views.
    And I also want to stress that I'm here as a parent and a 
grandparent. I have only two grandchildren--I can't compete 
with some members on this Committee--but my most recent 
grandson was born 5 days ago.
    I care enormously, as a parent, about what children are 
exposed to on TV. And, if I may be so permitted, I'm simply 
going to talk extemporaneously and ask that my prepared 
statement be submitted for the record, because I want to speak 
from deep feeling.
    When Dr. Kunkel said----
    Senator Rockefeller. It is included.
    Mr. Tribe.--that the issue is one of protecting children 
versus protecting free speech, and that the question is about 
how we prioritize those two goals, I felt myself torn asunder. 
If I had to choose between my children and my grandchildren and 
the Constitution, I suppose I'd resign from the human race. But 
I don't think I have to choose, and I don't think this 
Committee has to choose either.
    I think that, in the long run, it is not in the interest of 
my children, my grandchildren, or any of the children or 
grandchildren of this or any other generation to sacrifice free 
speech on the altar of protecting children. In the long run, it 
is not in the interest of our children that Big Brother decides 
what are suitable and what are unsuitable depictions of 
violence on television.
    When I hear that much of the harm of violent depictions is 
a function of how sanitized or how glamorized the violence is, 
I hear the language of viewpoint discrimination. Yes, I 
recognize that it is more harmful for my kids to see the hero 
on a program be rewarded for violence. It might be helpful for 
them to see people who are evildoers get what's theirs. But I 
don't want President Bush or any President of this country, or 
any chairman of the FCC, to be deciding what is too sanitized, 
what's too glamorous. We'll never be perfectly well off in this 
difficult terrain. But in the long run, I think that we are 
better off improving the tools that parents have.
    Now, Mr. Chairman, you said, ``Parents don't want more 
tools.'' I beg to differ. I think parents want and need more 
usable V-Chips. They also have tools they often don't know 
about, and a serious information campaign of the sort that 
Senator Lautenberg proposed might make a difference, as well.
    The Supreme Court of the United States is realistic about 
this. In a number of decisions about ``indecency,'' where it 
found that word an unacceptably vague standard, or about 
``patently offensive content,'' which it also found 
unacceptably vague, the Court recognized that simply empowering 
parents is not a perfect solution. But the Court further 
recognized that empowering parents is a less restrictive 
solution, and the burden is on government to make it more 
effective, not on government to simply turn over to Big Brother 
the keys to the television.
    I very much agree with Vice Chairman Stevens when he says 
that we can't forget about the First Amendment here. And it's 
not simply because I like writing about the First Amendment or 
arguing about it or teaching my students about it. It's because 
I believe in it. I believe we are better off in a society that 
takes free speech seriously.
    Now, with all respect, Mr. Chairman, when you showed what 
you did on what amounts to national television at 10 in the 
morning, I think you were making a judgment--a judgment I 
respect--about the best way to get this country moving on a 
subject you care passionately about. I share the passion, but I 
don't agree with the means.
    It seems to me that the objections in the name of the First 
Amendment are not merely technical objections. When you said 
that--and I think I'm quoting you--``defining `decency' is 
difficult,'' that was the understatement of the century. It's 
impossible for us to agree upon a definition of what is 
indecent for our kids to see. We can all look at the grotesque 
images that you showed on this screen and agree for ourselves 
we wouldn't want our children to see that. I wouldn't want to 
see it myself at 3 in the morning. But giving this power to 
government is not the solution.
    When you hear testimony that there is better evidence about 
the harm of violence on television than there is about the harm 
of asbestos or the harm of smoking, I beg you to understand or 
remember what you all know: there is a difference between 
asbestos and speech, and there is a difference between nicotine 
and content. Even if you try to package a solution to this 
problem in economic language by making programming go a la 
carte, you'll have not only the unintended effects that Senator 
Smith talks about. (I believe that when he talks about 
children's programs that would be lost if we mandate a la 
carte, that's simply an example of the fact that there will be 
major impact on content.) Can you imagine telling a newspaper 
that it had to make its various sections available a la carte? 
Can you imagine telling musicians that they couldn't package 
records the way they wanted to? In the end, we're talking about 
content, and we're talking about viewpoint, and we're talking 
about it in terms that, if we give the power to government, 
will be unconstitutionally vague.
    We may feel better about having done something, finally, by 
passing a statute in this area, but it's not about feeling good 
when the courts come right back and strike it down; it's about 
making a difference. And to make a difference, you have to 
address what Senator Lautenberg referred to: the fundamental 
human appetite for this disgusting stuff. If we address this 
appetite through education and through information, we won't 
solve the problem perfectly, but we'll come closer than if we 
do violence to the First Amendment.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Tribe follows:]

   Prepared Statement of Laurence H. Tribe,* Carl M. Loeb 
                              University 
Professor, Harvard University, Professor of Constitutional Law, Harvard 
          Law School; On behalf of the Ad Hoc Media Coalition
---------------------------------------------------------------------------
    \*\ Carl M. Loeb University Professor, Harvard University; 
Professor of Constitutional Law, Harvard Law School. My research and 
teaching focus primarily on the United States Constitution, including 
the First Amendment. I am the author of American Constitutional Law, 
which has been cited in more than 60 Supreme Court cases, and of 
numerous law review articles and books on constitutional analysis. I 
have also briefed and argued a number of cases before the Supreme Court 
on First Amendment issues, among others. In connection with this 
testimony, I have been retained--through the auspices of Akin Gump 
Strauss Hauer & Feld LLP, for which I serve as a consultant--by a 
coalition of affected media-related entities listed in the Appendix. 
However, the conclusions that I have reached, and that I express in 
this testimony, are my own and not those of Harvard Law School, Harvard 
University, or the individual members of the coalition. My conclusions 
are limited to the Federal constitutional validity of various proposed 
regulations.
---------------------------------------------------------------------------
    Chairman Inouye, Vice Chairman Stevens, and distinguished members 
of the Committee: Thank you for inviting me to testify about the 
constitutionality of the legislative proposals made by the Federal 
Communications Commission (FCC) in its recent report on television 
violence.
    That Report concludes that there is evidence--which the Report 
concedes to be mixed and uncertain--that certain depictions of violence 
on television correlate with harmful effects on children, including 
short-term aggressive behavior and feelings of distress, and that the 
existing V-Chip regime, based on the industry's voluntary ratings 
system, has been insufficiently effective at keeping violent content 
from children. On that basis, the Report recommends three legislative 
responses: time channeling, which would ban some content during certain 
hours; a mandatory, government-run ratings program to replace the 
current voluntary system; and mandatory unbundling, or a la carte 
cable/satellite programming, to require cable and satellite providers 
to give consumers a choice of opting in or out of channels or bundles 
of channels.
    However, as Commissioner Adelstein forthrightly acknowledges in his 
separate statement, ``the Report diminishes the extent to which courts 
have either expressed serious skepticism or invalidated efforts to 
regulate violent content.'' FCC Report at 32. In my view, the First 
Amendment renders invalid and would be invoked by the Supreme Court to 
strike down legislation adopting any or all of the FCC's proposals. In 
raising these First Amendment concerns, I certainly do not mean to deny 
that parents have legitimate interests in what their children see on 
television. I am not only a father but a grandfather, and I believe 
that not everything on television is appropriate for young children to 
view--as the broadcasters and cablecasters acknowledge, both in their 
public statements and in their voluntary ratings.
    I also do not mean to suggest that Congress is helpless to assist 
parents in this area. But the fundamental error of the FCC Report lies 
in its belief that the most appropriate response to concerns about 
television programs containing violent scenes or elements is more 
intrusive governmental control over the free flow of speech, rather 
than more narrowly tailored and far less restrictive alternatives to 
facilitate greater parental control. Such use of centralized government 
regulation is antithetical to the letter and spirit of the 
Constitution.
    At the outset, I would like to emphasize that violent television 
programming is speech protected by the First Amendment--a point that 
the FCC Report concedes. At the most fundamental level, any attempt to 
regulate such protected speech will fail because it will be impossible 
to define ``impermissible'' depictions of violence on television 
according to the strict constitutional requirements that govern laws 
regulating speech. The first two FCC proposals rely on their face upon 
an explicit distinction between allowable and forbidden violent 
content. And even the third FCC proposal--mandatory unbundling--either 
expressly invokes or is concededly driven by concerns with the violent 
content that the first two proposals would overtly address. But such a 
distinction is necessarily ambiguous to the point of being 
unconstitutionally vague. To the extent that the First Amendment allows 
regulation of speech, it requires an extremely clear line between the 
permitted and the forbidden. In a great understatement, the FCC Report 
itself notes that drawing such a distinction in a constitutionally 
permissible manner would be ``challenging,'' FCC Report at 18, and so 
the FCC declines to try to come up with such a definition itself, 
leaving the task to Congress. But in my view, any attempt to come up 
with a constitutionally acceptable definition of ``impermissible'' 
television violence is more than challenging--it is hopeless. The 
adoption of a line as amorphous as would inevitably result from such an 
attempt would chill protected speech, as broadcasters, cable/satellite 
operators, and artists react in altogether predictable ways to 
uncertainty over whether they will face punishment--and, if so, how 
severely they would be penalized. Moreover, this vague prohibition 
would give regulators and prosecutors too much discretion to shape the 
content of free expression.
    Any serious attempt to regulate violence on television would also 
be unconstitutional because the very effort on government's part to 
regulate televised violence is an attempt by government to dictate the 
right way to think and feel about violence. But the First Amendment 
prohibits the government from forcing people to adopt a particular 
position on any subject of debate, whether the topic is global warming, 
immigration, or violence. And even if one believes that the First 
Amendment allows legislatures to limit the availability of violent 
content for the sake of young children--a conclusion that I believe is 
inconsistent with constitutional principle and Supreme Court precedent, 
which recognizes that children enjoy First Amendment protections as 
well--it is undeniable that the First Amendment fully protects the 
rights of adults and older children to view televised violence, and the 
concomitant rights of broadcasters, cable/satellite operators, and 
artists to formulate and express that content. Whatever Congress's 
power to protect children, it cannot regulate speech in a way that 
infringes on these fundamental rights. What is more, any law regulating 
violence would fail to achieve the purposes that would motivate its 
enactment, and any such statute would be unconstitutional on those 
grounds alone.
    The FCC Report suggests that none of these concerns applies because 
the government can regulate depictions of violence in the same way that 
it can regulate indecency, and others have suggested analogizing 
regulations of televised violence to obscenity laws. But depictions of 
violence cannot properly be equated or analogized to indecency or 
obscenity.
    Finally, the FCC Report downplays and in some respects simply 
ignores a large and ever-growing number of less restrictive means by 
which parents can regulate the exposure of their young children to 
televised violence. Changes in technology have made it increasingly 
easy for parents who wish to do so to block content from their 
children, household by household, program by program, child by child. 
Indeed, technological advances allow parents to regulate television 
content in any fashion that they desire--beyond narrow concerns with 
violence, sex, or other substantively identified facets of the content 
to which their children are exposed. The First Amendment forbids more 
intrusive, centralized, one-size-fits-all regulations when such less 
restrictive, more individualized, and more narrowly tailored means are 
available.
                           Table of Contents

    I. The First Amendment Protects Depictions of Violence On Such 
Media as Television.
    II. The FCC's Proposals Rely upon a Constitutionally Unacceptable 
Conception of ``Impermissible'' Depictions of Violence.

        A. One cannot define a meaningfully distinguishable subcategory 
        of objectionable television violence in a way that is not 
        unconstitutionally vague.

        B. Any plausible definition of impermissible television 
        violence will unconstitutionally discriminate based on the 
        viewpoint expressed.

        C. Any plausible definition of impermissible television 
        violence will be unconstitutionally overbroad.

        D. Any plausible regulation of supposedly unacceptable 
        television violence will contain too many internal 
        inconsistencies to meet First Amendment standards.

    III. Even Ignoring These Core Definitional Defects, the Fcc's 
Proposals Cannot Be Reconciled with the First Amendment.

        A. Strict scrutiny applies to the FCC's specific proposals to 
        regulate violent television programming.

           1. Any analogy between ``violence'' and ``indecency'' or 
        ``obscenity'' cannot support evaluating the FCC's proposals 
        under anything less than strict scrutiny.

           2. Strict scrutiny applies to regulations intended to 
        protect minors.

           3. Strict scrutiny applies to regulations of broadcast 
        television content.

        B. Under strict scrutiny, the FCC's proposals share a common 
        flaw: they are not the least restrictive means to satisfy the 
        government's interests.

           1. Many less restrictive alternatives exist to respond to 
        violent television programming.

           2. These less restrictive alternatives embody the parent- 
        and individual-centered structures for regulating speech that 
        the Supreme Court has recognized as preferred by the First 
        Amendment.

           3. The FCC's criticisms of these alternatives do not save 
        its proposals under the First Amendment.

        C. All of the FCC's proposals accordingly violate the First 
        Amendment.

           1. Time Channeling.

           2. Mandatory Ratings System.

           3. Mandatory Unbundling.

              a. First Amendment strict scrutiny applies to mandatory 
        unbundling.

              b. The First Amendment scrutiny of unbundling is 
        unaffected by the involvement of money.

              c. Unbundling's burdens on First Amendment rights cannot 
        be justified.
    IV. Appendix
I. The First Amendment Protects Depictions of Violence on Such Media as 
        Television
    The FCC Report concedes that the First Amendment protects 
depictions of violence, but the scope and rationale of this protection 
nevertheless deserve emphasis here. In Winters v. New York, 333 U.S. 
507 (1948), the Supreme Court considered the constitutionality of a 
state law criminalizing the sale of magazines that displayed ``stories 
of bloodshed, lust or crime.'' Id. at 511. New York argued that the 
First Amendment did not cover these magazines because they were merely 
entertainment and because they were ``sanguinary or salacious 
publications.'' Id. at 510. The Court rejected these arguments, holding 
that ``[w]hat is one man's amusement, teaches another's doctrine. 
Though we can see nothing of any possible value to society in these 
magazines, they are as much entitled to the protection of free speech 
as the best of literature.'' Id. The lower Federal courts have properly 
recognized that the rule announced in Winters applies to depictions of 
violence in other media as well. See, e.g., Interactive Digital 
Software Ass'n v. St. Louis County, 329 F.3d 954, 960 (8th Cir. 2003) 
(``IDSA'' applying First Amendment to violent video games); American 
Amusement Machine Ass'n v. Kendrick, 244 F.3d 572, 579-80 (7th Cir. 
2001) (applying First Amendment to violent video games); Eclipse 
Enterprises, Inc. v. Gulotta, 134 F.3d 63, 64 (2d Cir. 1997) (applying 
First Amendment to trading cards depicting violent crimes); Video 
Software Dealers Ass'n v. Webster, 968 F.2d 684, 691 (8th Cir. 1992) 
(applying First Amendment to videos depicting violence); American 
Booksellers Ass'n v. Hudnut, 771 F.2d 323, 330 (7th Cir. 1985) (noting 
that depictions of violence on television are covered by the First 
Amendment). Of course, ``programs broadcast by . . . television . . . 
[also] fall within the First Amendment guarantee.'' Schad v. Mount 
Ephraim, 452 U.S. 61, 65 (1981).
    Thus, violent television content--whether it educates or merely 
entertains--is protected by the First Amendment. This conclusion 
properly recognizes that depictions of violence have always been an 
integral part of expressive speech. From Greek mythology to the stories 
in the Bible, from Grimm's Fairy Tales to innumerable great plays, 
novels, and movies, depictions of violence have long played a role in 
the stories, fables, and narratives that illustrate and inform our 
notions of crime and punishment, evil and justice, right and wrong. The 
use of violence in television programming is no different. Depictions 
of violence and its effects and consequences can contribute powerfully 
to a show's portrayal of our often violent world or its equally violent 
history, and the use of violence--however disquieting--adds emphasis 
that is nearly impossible to achieve otherwise. For example, news 
programs reporting on a war could not be as truthful, nor achieve the 
same impact, if they shied away from violence, and a Holocaust 
documentary that unflinchingly portrays the atrocities of that era is 
both more honest and more effective than a documentary on the same 
subject that avoids any such video or pictorial depictions. These are 
contexts in which excising elements of violence would lie by omission.
    The important role of depictions of violence holds for fictional 
programming as well. Many of our most popular and critically acclaimed 
television shows are indelibly associated with depictions of violence. 
``The Untouchables,'' ``Dragnet,'' ``Hawaii Five-O,'' ``Columbo,'' 
``Rockford Files,'' ``Murder, She Wrote,'' ``Hill Street Blues,'' ``Law 
and Order,'' ``CSI''--these and scores of other police and detective 
series would be severely weakened, artistically and dramatically, if 
they could not depict with some degree of verisimilitude the commission 
and consequences of violent crimes and the physical conduct sometimes 
necessary on the part of law enforcement to bring wrongdoers to 
justice. Similarly, shows about espionage (e.g., ``I Spy,'' ``Mission 
Impossible,'' ``24''), war (e.g., ``Combat,'' ``Twelve O'Clock High''), 
science fiction and the supernatural (e.g., Star Trek,'' ``X-Files,'' 
``Lost''), and doctors (e.g., ``MASH,'' ``ER,'' ``Grey's Anatomy'') 
would be greatly diminished in their power and their story-telling if 
they could not contain some scenes of violence or its effects, as well 
as scenes showing surgical and other medical procedures.
    My point here is not that violence is necessary for television 
programs to express any ``message,'' or that it is impossible for these 
shows or others to continue in some form without portraying violence. 
Rather, my point is that all of these programs and many others would be 
drastically different--and considerably less valuable as speech--if 
they were forbidden to portray physical violence and its consequences 
in the way that they do. Whether fictional or nonfictional, 
journalistic or artistic, depictions of violence in television 
programming are entitled to the powerful protection of the First 
Amendment.
II. The FCC's Proposals Rely upon a Constitutionally Unacceptable 
        Conception of ``Impermissible'' Depictions of Violence
    The FCC Report does not, of course, recommend that all violence on 
television be regulated. Rather, it recommends regulating only those 
depictions of violence that the FCC views as somehow crossing the line 
from ``permissibly violent'' to ``impermissibly violent.''
    All of the FCC's proposals necessarily rely, either on their face 
or in their justification, on this distinction between permissible and 
impermissible depictions of violence. Time channeling would segregate 
impermissibly violent television programming into late-night time 
slots, while allowing permissibly violent programming to be aired at 
all hours. A mandatory ratings system would impose one rating on shows 
with permissible violence and another, presumably more severe, rating 
on shows with impermissible violence. Many unbundling proposals require 
cable/satellite providers to separate channels with permissible 
violence from channels with impermissible violence. And even unbundling 
proposals that are drafted without any mention of violent content are 
transparently driven by the same concerns.
    Although the distinction between permissible and impermissible 
views of violence thus lies at the heart of all of the FCC's proposals, 
the Report provides little meaningful guidance on the content of this 
distinction or on how to translate it into operative language. The 
FCC's silence is telling. It is not difficult to see why any attempt to 
distinguish between permissible and impermissible displays of 
violence--using words and concepts like ``excessive,'' ``gratuitous,'' 
and so on--could not pass muster under First Amendment scrutiny.

        A. One cannot define a meaningfully distinguishable subcategory 
        of objectionable television violence in a way that is not 
        unconstitutionally vague.

    The FCC Report proposes that Congress regulate ``excessively 
violent programming that is harmful to children'' on television. The 
heart of any such law will be its definition of ``excessively 
violent,'' but any meaningful definition of ``excessive violence''--
that is, any definition that prohibits a significant amount of the 
violent content that the FCC is concerned about--will be unacceptably 
vague because it will be impossible at the end of the day to tell what 
the definition regulates and what it does not. And the FCC Report--
despite concluding that it would be ``possible'' to develop an 
``appropriate'' definition--fails entirely to explain what that 
definition should be or why it would pass constitutional muster.
    The Due Process Clause requires any law, whatever its context, to 
be specific about what it prohibits: ``a statute which either forbids 
or requires the doing of an act in terms so vague that men of common 
intelligence must necessarily guess at its meaning and differ as to its 
application violates the first essential of due process of law.'' 
Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926); Grayned v. City 
of Rockford, 408 U.S. 104, 108 (1972). Two principal concerns have 
driven this prohibition on vague laws, even when the First Amendment is 
not at stake. First, it is fundamentally unfair to punish a person for 
conduct he could not have known was prohibited: ``Vague laws may trap 
the innocent by not providing fair warning.'' Grayned, 408 U.S. at 108. 
Second, it is the lawmaker's responsibility to decide what will be 
punished, but a vague law in effect ``impermissibly delegates basic 
policy matters to policemen, judges, and juries for resolution on an ad 
hoc and subjective basis.'' Id. 108-09.
    Laws regulating speech are held to even ``stricter standards'' and 
must be particularly clear: ``[A] man may the less be required to act 
at his peril'' when a statute may have a ``potentially inhibiting 
effect on speech,'' because ``the free dissemination of ideas may be 
the loser.'' Smith v. California, 361 U.S. 147, 151 (1959); see also 
Cramp v. Bd. of Pub. Instruction, 368 U.S. 278, 288 (1961). It is a 
speaker's right to speak freely when what he wants to say does not 
violate any law, but vague laws ``inevitably lead citizens to `steer 
far wider of the unlawful zone' . . . than if the boundaries of the 
forbidden areas were clearly marked,'' thus chilling constitutionally 
protected speech. Grayned, 408 U.S. at 109.
    The prohibition on vagueness becomes no less stringent simply 
because ``a particular regulation of expression . . . was adopted for 
the salutary purpose of protecting children,'' as the Supreme Court 
held in Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 
(1968). There, the Court invalidated a statute that permitted a movie 
review board to censor films that the board deemed ``unsuitable'' for 
consumption by children if, among other things, they described or 
portrayed ``brutality, criminal violence or depravity in such a manner 
as to be, in the judgment of the Board, likely to incite or encourage 
crime or delinquency.'' The Court found the phrase ``likely to incite'' 
insufficiently determinate, in effect granting the board a ``roving 
commission'' to censor any films of which it disapproved. Id. at 688. 
For the same reason, the Second Circuit recently noted that the FCC's 
efforts to protect children from ``indecent'' language, fleetingly 
uttered, was likely unconstitutional because the FCC's vague definition 
of indecency ``permits the FCC to sanction speech based on its 
subjective view of the merit of that speech'' and thus gives ``too much 
discretion to government officials.'' Fox Television Stations, Inc. v. 
FCC,_ F.3d_, No. 06-1760, slip op. at 34 (2d Cir. June 4, 2007). Even 
though the statute in Interstate Circuit and the regulation in Fox both 
sought to protect children, the grants of censorship authority were 
void for vagueness under the same rule that would have applied had the 
statute sought only to protect adults.
    Despite these settled principles, the FCC surmises that it would be 
possible to establish a definition of ``excessive violence'' that would 
somehow satisfy the Constitution. As a concrete example, the FCC 
suggests that Congress could prohibit ``depictions of physical force 
against an animate being that, in context, are patently offensive.'' 
FCC Report at 20. The FCC also notes--without explaining whether it 
believes they would be constitutional--several definitions of 
prohibited violence proposed by commentators, among them depictions of 
``outrageously offensive or outrageously disgusting violence''; of 
``severed or mutilated human bodies or body parts, in terms patently 
offensive as measured by contemporary community standards for the 
broadcast medium''; and of ``intense, rough or injurious use of 
physical force or treatment either recklessly or with an apparent 
intent to harm.''
    None of these proposed definitions is specific enough to give 
broadcasters, cable/satellite operators, or regulators any real sense 
of what is prohibited, much less the precise guidance that the 
Constitution demands. Phrases like ``outrageously offensive,'' 
``patently offensive,'' ``intense,'' or ``rough'' are ``classic terms 
of degree''--they measure a quality speech rather than delineating a 
firm and discrete category of speech. Gentile v. State Bar of Nevada, 
501 U.S. 1030, 1049-49 (1991). As a result, they do not offer 
sufficient guidance because a person of ``ordinary intelligence'' would 
have to guess at whether a particular program violates the rule. See 
Grayned, 408 U.S. at 108.
    The impenetrable darkness into which such definitions would plunge 
writers, producers, broadcasters, cable/satellite operators, and other 
creators and distributors of content is easily illustrated by reference 
to a recent report on television violence by a group that strongly 
backs government regulation of television violence.\1\ Among the 
examples of television programming that the group deems objectionable, 
and which it presumably would want to subject to government regulation 
and fines:
---------------------------------------------------------------------------
    \1\ Parents Television Council, Dying to Entertain: Violence on 
Prime Time Broadcast Television 1998 to 2006 (January 2007), available 
at http://www.parentstv.org/PTC/publications/reports/violencestudy/
DyingtoEntertain.pdf.

   A little girl pulls another girl's hair on an episode of 
---------------------------------------------------------------------------
        ``America's Funniest Home Videos'';

   A ``dead and bloodied body'' is shown on an autopsy table in 
        an episode of ``Medical Investigation'';

   A witness describes an alleged rape (never shown) on ``Law 
        and Order'';

   Two bloody murders are described, but not shown, and the 
        bloody crime scene (without bodies) is depicted, on ``Criminal 
        Minds'';

   On ``CSI Miami,'' a man falls into the water and is 
        surrounded by sharks. His actual death is not shown, but 
        ``[b]lood fills the water and one of the man's shoes is shown 
        falling to the bottom of the ocean floor.''

    In any of these cases, how is a government regulator to decide 
whether the violence is ``gratuitous,'' ``excessive,'' and/or 
``patently offensive,'' as the group listing these examples evidently 
believes? Any such inquiry would be unavoidably, and almost entirely, 
subjective, leaving a creator or distributor of content no choice but 
to steer far clear of anything that might be deemed objectionable by 
the most sensitive viewer.
    The same concerns have driven the Court to strike down other 
statutes for vagueness. In the most directly applicable case, Winters 
v. New York, the Court paid special attention to the way in which 
efforts to prevent regulations of violent materials from being fatally 
overbroad operated to render such regulations unacceptably vague. Thus, 
in striking down a prohibition on violent printed materials that were 
``so massed as to become vehicles for inciting violent and depraved 
crimes against the person,'' the Court in Winters  noted that the 
novelty of this legislative phrase showed ``the utter impossibility of 
the actor or the trier to know where this new standard of guilt would 
draw the line between the allowable and the forbidden publications.'' 
333 U.S. at 519.
    Similarly, in Reno v. ACLU, 521 U.S. 844 (1997), the Supreme Court 
found impermissibly vague a Federal statute--the Communications Decency 
Act (CDA)--that banned the online distribution of ``indecent'' material 
that, ``in context, depict[ed] or describ[ed], in terms patently 
offensive as measured by contemporary community standards, sexual or 
excretory activities or organs.'' 47 U.S.C.  223(d)(1) (1994 ed., 
Supp. II). The Court concluded that this standard ``lacks the precision 
that the First Amendment requires when a statute regulates the content 
of speech.'' 521 U.S. at 873. It found deeply troubling ``the vagueness 
inherent in the open-ended term `patently offensive' ''; such 
vagueness, the Court said, ``raises special First Amendment concerns 
because of its obvious chilling effect on free speech.'' Id.
    The phrases suggested by the FCC to delimit a class of 
impermissibly violent content--``outrageously offensive,'' ``rough,'' 
``intense,'' and the like--are no more definite than other statutory 
phrases deemed unconstitutionally vague by the Supreme Court, from 
``patently offensive'' and ``so massed as to become vehicles for 
inciting'' in Reno v. ACLU and Winters, respectively, to such phrases 
as ``moral and proper'' and ``prejudicial to the best interests of the 
people.'' See Interstate Circuit,  930 U.S. at 682 (listing 
impermissibly vague phrases). Because these phrases have no 
historically or legally established meaning, they provide little 
guidance for those subject to punitive measures for failing to comply 
with the statute's imprecise commands.
    The vague definitions of impermissible violence proposed by the FCC 
also pose another danger: the delegation of essentially boundless, 
subjective discretion to the FCC. Language like ``patently offensive,'' 
when divorced from the historical and legal contexts to which it has 
traditionally been attached, has such a ``standardless sweep'' that it 
would impermissibly allow the FCC's individual enforcement agents ``to 
pursue their personal predilections.'' Smith, 415 U.S. at 575. Indeed, 
vague standards could empower the FCC to crack down on certain programs 
because of political pressure, or based on individual commissioners' 
aesthetic or moral judgments about particular shows or particular 
scenes. As with a statute prohibiting ``opprobrious words or abusive 
language,'' such as the one the Supreme Court invalidated in Gooding v. 
Wilson, 405 U.S. 518 (1972), any attempt to regulate violence will be 
too ``easily susceptible to improper application.'' Id. at 528; see 
also Forsythe County v. Nationalist Movement,  505 U.S. 123, 133 n. 10 
(1992) (``It is not merely the sporadic abuse of power by the censor 
but the pervasive threat inherent in its very existence that 
constitutes the danger to freedom of expression.'').
    The FCC's conclusion that a definition of impermissible violence 
can avoid vagueness problems is unconvincing because it makes no real 
effort to grapple with the Supreme Court's First Amendment vagueness 
precedents. Ignoring every other case, the Report does cite glancingly 
to a single Supreme Court opinion to suggest that a sufficiently clear 
definition of violence could be developed. That decision, FCC v. 
Pacifica Foundation, 438 U.S. 726 (1978), does not support the FCC's 
conclusion. In Pacifica, the Supreme Court upheld a sanction on a radio 
station for broadcasting ``indecent'' content despite an arguably vague 
definition of ``indecent.'' But the underpinnings of Pacifica have 
since been eroded, and, in any case, are not transferable to the 
context of television violence.
    First, as the Supreme Court recognized at the time, 438 U.S. at 
750, and has subsequently reaffirmed, Pacifica stands for ``an 
emphatically narrow holding.'' Sable Communication, Inc. v. FCC, 492 
U.S. 115, 127 (1989). That holding was limited to its facts--a 
particular comic monologue, broadcast on the radio, which was pervaded 
by words with explicit sexual meanings. Indeed, the Pacifica Court had 
no occasion to consider--and did not consider--whether any particular 
definition of ``indecency'' was constitutional, because the respondent 
had conceded that the programming was ``patently offensive.'' 438 U.S. 
at 739; id. at 742 (declining to decide whether the Commission's 
general definition of ``indecency'' was constitutional and stressing 
that its review was limited to the particular broadcast before it).
    Second, the FCC Report ignores the Supreme Court's much more recent 
decision in Reno v. ACLU, mentioned above, which found impermissibly 
vague the CDA's ban on the distribution of ``indecent'' material on the 
Internet even though the CDA's definition of prohibited material was 
essentially identical to the FCC's broadcast indecency standard. Just 
this month, the U.S. Court of Appeals for the Second Circuit said that, 
in light of the Reno v. ACLU decision, ``we are skeptical that the 
FCC's identically worded indecency test could nevertheless provide the 
requisite clarity to withstand constitutional scrutiny.'' Fox, supra, 
slip op. at 31. Indeed, the Second Circuit continued, ``we are 
sympathetic to the . . . contention that the FCC's indecency test is 
undefined, indiscernible, inconsistent, and consequently, 
unconstitutionally vague.'' Id. at 32.
    Finally, even if Pacifica would be read as allowing a particular 
use of a vague definition of ``indecency,'' its reasoning could not be 
extended to definitions of ``excessive violence'' that use the 
adjective ``indecent'' or that are modeled on existing definitions of 
``indecent.'' Like obscenity law, indecency regulation is a 
constitutional anomaly with a distinct historical provenance that taps 
into traditional concerns with personal modesty and the propriety of 
open expressions of sexuality--concerns that find no analogue in 
depictions of violence. Barnes v. Glen Theatre, Inc., 501 U.S. 560 
(1991) (plurality opinion) (citing common law prohibitions on public 
indecency that predated the First Amendment by more than a century to 
uphold a prohibition on public nudity). The legal and historical 
distinctions between ``indecency'' and ``violence'' lay at the heart of 
the Winters Court's recognition that the treatment of ``indecent'' 
material could not be invoked to sustain a similarly worded definition 
of impermissible violence, which the Court held ``ha[d] no technical or 
common law meaning.'' 333 U.S. at 518, 519.
    The conclusion that any meaningful attempt to regulate violence on 
television would fail on vagueness grounds does not rest on mere 
conjecture about how the lower courts would apply the Supreme Court's 
precedents. To the contrary, the lower Federal courts have consistently 
struck down prohibitions of displays of violence on vagueness grounds. 
When Louisiana attempted to regulate any video game that ``appeal[ed] 
to the minor's morbid interest in violence,'' a Federal court held that 
the language the statute used was too vague because video game makers 
would be ``forced to guess at the meaning and scope of the Statute.'' 
Entm't Software Ass'n v. Foti, 451 F. Supp. 2d 823, 836 (M.D. La. 
2006). In Entertainment Software Association v. Blagojevich, 404 F. 
Supp. 2d 1051, 1077 (N.D. Ill. 2005), affirmed, 469 F.3d 641 (8th Cir. 
2006), a Federal district court struck down that state's violent video 
game law on the ground that the statute's definition of impermissible 
violence--such as depictions of humans inflicting ``serious physical 
harm'' on other humans--was too vague. Id. at 1077. Similar statutes 
have been struck down in Michigan (Entm't Software Ass'n v. Granholm, 
426 F. Supp. 2d 646 (E.D. Mich. 2006)), Washington (Video Software 
Dealers Ass'n v. Maleng, 325 F. Supp. 2d 1180 (W.D. Wash. 2004)), and 
Minnesota Entertainment Software Association v. Hatch, 443 F. Supp. 2d 
1065 (D. Minn. 2006)), and have been enjoined in Oklahoma Entertainment 
Software Association v. Henry, 2006 WL 2927884 (W.D. Oklahoma, 2006)), 
and California (Video Software Dealers Association v. Schwarzenegger,  
401 F.Supp. 2d 1034 (N.D. Cal. 2005)).

        B. Any plausible definition of impermissible television 
        violence will unconstitutionally discriminate based on the 
        viewpoint expressed.

    Much of the drive to regulate televised violence responds less to 
violence as such than to what a particular depiction appears to say 
about the use of violence--whether it appears to glamorize or condemn 
such use, whether it seems to approve or disapprove of some form or 
degree of violent behavior in a given context, and what attitude about 
or perspective on violence viewers might be expected to take away from 
the experience. It is hardly a coincidence, therefore, that definitions 
of ``impermissible'' depictions of violence often reveal explicit 
viewpoint discrimination of a sort that flies in the face of core First 
Amendment precepts: for example, the FCC Report suggests that a 
definition of violence might helpfully include factors such as whether 
violence is ``glamorize[d]'' or ``trivialize[d],'' ``whether [the 
violence] is morally defensible or unjustified,'' and ``whether the 
violence is explicitly rewarded or goes unpunished.'' FCC Report at 20 
& 8 n. 34 (citing factors identified in violence study).
    But any law, regulation, or enforcement practice that explicitly or 
implicitly restricted ``excessively violent'' programming in this way, 
or in any way that considered the purpose or message behind the use of 
violence, would necessarily be subject to--and would almost certainly 
fail--the strictest First Amendment scrutiny, as landmark decisions 
such as RAV. v. City of St. Paul, 505 U.S. 377 (1992), make clear. At 
issue in that case was a local ordinance criminalizing ``fighting 
words'' that attacked the intended victim's ``race, color, creed, 
religion or gender.'' Id. at 391. The Court acknowledged that 
``fighting words,'' like obscenity (but unlike depictions of violence), 
generally receive the lowest level of First Amendment protection. It 
nevertheless concluded that this ordinance violated the First Amendment 
because it engaged in unconstitutional viewpoint discrimination:  it 
prohibited racist, sexist, and anti-religious ``fighting words,'' but 
not similar speech ``in favor  of racial, color, etc., tolerance and 
equality.'' Id. ``The government may not regulate [speech] based on 
hostility--or favoritism--towards the underlying message expressed,'' 
even if that speech as a general matter receives less First Amendment 
protection. Id. at 386; see also Kingsley-International Pictures Corp. 
v. Regents of the University of the State of N.Y., 360 U.S. 684 (1959) 
(striking down state law proscribing the display of any film depicting 
adultery as desirable).
    The same rationale would apply to prohibit any law defining 
``impermissibly violent'' programming as programming that expressed or 
implied approval or tolerance of violence; that left audiences with the 
sense that violence could be engaged in without anyone getting badly 
hurt; or that instilled undue fear at the thought of being violently 
attacked. Presumably, under such a law, equally intense, graphic, and 
even vicious portrayals of violence would be permitted, so long as they 
expressed the view that violence was generally improper, typically 
injurious and painful to perpetrator and victim alike, but not so 
rampant as to be a reason for nightmarish fear. Similarly, neither a 
Federal statute nor an enforcement action by the FCC could 
constitutionally punish violence employed for a bad or evil purpose--as 
by a criminal--while leaving unpunished violence employed for a good or 
just purpose--as by a police officer or a superhero. To treat a scene 
showing a criminal shooting a fleeing victim in the leg differently 
from a scene depicting a policeman shooting a fleeing suspect in the 
leg would be to engage in precisely this kind of forbidden 
discrimination on the basis of viewpoint. And if a law drew a 
distinction between, for example, real violence during an actual boxing 
match (which it permitted), and fake violence during a simulated fight 
in a television show (which it forbade), it would also enforce a 
particular view about when violence is appropriate. Such discrimination 
among viewpoints triggers the strictest possible scrutiny, and under 
RAV. would almost certainly fail that test.

        C. Any plausible definition of impermissible television 
        violence will be unconstitutionally overbroad.

    An intrinsic problem with defining impermissible violence is that 
any such definition that manages to sweep in enough violent content to 
accomplish Congress's goals will at the same time sweep in far more 
speech than may permissibly be suppressed. Whatever interests Congress 
may assert to regulate televised violence, they do not justify 
prohibiting adults (or, for that matter, older children) from seeing 
the violent but protected depictions that the FCC hopes to prevent 
young children from seeing.
    Even a statute enacted with the best of intentions, and even one 
undoubtedly effective in achieving its objectives, is 
``unconstitutional on its face if it prohibits a substantial amount of 
protected expression.'' Ashcroft v. Free Speech Coalition, 535 U.S. 
234, 244 (2002). ``[W]hen legitimate legislative concerns are expressed 
in a statute which imposes a substantial burden on protected First 
Amendment activities,[\2\] Congress must achieve its goal by means 
which have a `less drastic' impact on the continued vitality of First 
Amendment freedoms. The Constitution and the basic position of First 
Amendment rights in our democratic fabric demand nothing less.'' United 
States v. Robel, 389 U.S. 258, 267 (1967).
---------------------------------------------------------------------------
    \2\ In that case, the burden was ``bar[ring] employment . . . for 
association which may not be proscribed consistently with First 
Amendment rights.'' 389 U.S. at 266.
---------------------------------------------------------------------------
    It has long been settled that the First Amendment prohibits 
limiting permissible expression to speech that would be suitable for 
the very young. In the landmark case of Butler v. Michigan, 352 U.S. 
380 (1957), the Supreme Court considered the constitutionality of a 
Michigan statute that criminalized distribution of books that contained 
language ``tending to the corruption of the morals of youth.'' The 
State of Michigan argued that, ``by thus quarantining the general 
reading public against books not too rugged for grown men and women in 
order to shield juvenile innocence, it is exercising its power to 
promote the general welfare.'' Id. at 383. The Court emphatically 
rejected this argument, famously observing: ``Surely, this is to burn 
the house to roast the pig. . . . The incidence of this enactment is to 
reduce the adult population of Michigan to reading only what is fit for 
children.'' Id.
    Similarly, in Ashcroft, the Supreme Court struck down a statute 
that would have banned the display of `` `any visual depiction, 
including any photograph, film, video, picture, or computer or 
computer-generated image or picture,' that `is, or appears to be, of a 
minor engaging in sexually explicit conduct.' '' 535 U.S. at 241. This 
statute was aimed at protecting minors, both from abuse in the making 
of such depictions and, like the regulations here contemplated by the 
FCC, from the effects that the dissemination of those depictions could 
have on them. The Court recognized that protecting children was vitally 
important, but observed that the statute prohibited vast quantities of 
speech that adults had a right to hear, such as several films that 
either won or were nominated for Academy Awards. The Court held that 
``[t]he Government cannot ban speech fit for adults simply because it 
may fall into the hands of children.'' Id. at 252; see also Reno v. 
ACLU, 521 U.S. at 877 (striking down the ban on indecent material on 
the Internet because ``[t]he general, undefined terms `indecent' and 
`patently offensive' cover large amounts of nonpornographic material 
with serious educational or other value''); Bolger v. Youngs Drug 
Products Corp., 463 U.S. 60, 79 (1983) (Rehnquist, J., concurring) 
(noting that ban on mailing contraception information, ostensibly to 
protect children, is ``broader than is necessary because it completely 
bans from the mail unsolicited materials that are suitable for 
adults'').
    Many of the proposed regulations of television violence share the 
same constitutional defect: out of concern for protecting young 
children, they would prevent adults and older children from viewing 
programs that they are constitutionally entitled to see. Indeed, as 
noted above, some of the leading advocates for centralized regulation 
of television violence have raised objections to an astonishingly broad 
range of content--extending well beyond actual depictions of even 
arguably objectionable violence--that they believe should be kept off 
television (at least before 10 p.m.), including televised descriptions 
of violent behavior (such as the testimony of a victim at a rape 
trial), mere intimations that violence has occurred (such as blood on 
the floor), and even depictions of medical procedures.\3\ Whatever the 
merits of restricting the availability of such content to young 
children, no similar argument can possibly justify keeping this content 
away from adults and older children, as the FCC's proposals threaten to 
do.\4\ Congress may not prescribe a regulation of violent speech that 
limits ``the level of discourse reaching [people's homes] . . . to that 
which would be suitable for a sandbox.'' Bolger, 463 U.S. at 74.
---------------------------------------------------------------------------
    \3\ See Parents Television Council, Dying to Entertain, supra.
    \4\ According to Nielsen, 84.2 percent of American television homes 
contain no children under six, 73.9 percent of American television 
homes contain no children under twelve, and 64.2 percent of American 
television homes contain no children under eighteen. Nielsen Television 
Index, 2007-2008 Universe Estimates.

        D. Any plausible regulation of supposedly unacceptable 
        television violence will contain too many internal 
---------------------------------------------------------------------------
        inconsistencies to meet First Amendment standards.

    The FCC has identified several interests that are arguably served 
by centrally regulating televised violence, including:

   enabling parents to protect their children from material 
        that the parents believe will make their children too 
        insensitive to the evils of hurting others,

   enabling parents to protect their children from material 
        that the parents believe will make their children too fearful 
        of being violently injured or killed, and

   protecting children from material their parents would not 
        want them to see but are unable to keep from their children 
        despite that wish.

    However legitimate or even compelling these interests might be, 
they are at war with one another to such a degree that they will 
ironically render any statute that was closely tailored to serve any 
one of those interests self-defeating with respect to others, leaving 
it unconstitutionally ill-fitting under the First Amendment. See City 
of Ladue v. Gilleo, 512 U.S. 43, 51 (1994).
    The ostensible interest in protecting children from frightening 
material, for example, would suggest that any depiction of violence 
should be cartoonish and sanitized, as in the madcap violence of the 
Roadrunner cartoons or the Three Stooges or the stylized heroics of the 
old Batman series; but this would undercut the asserted interests in 
making children understand the real-life consequences of violence and 
in avoiding material that proponents of regulation fear children might 
imitate. Further, if some obviously protected categories of violent 
depictions, such as those in news or sports, were exempted in order to 
save regulation of television violence from unimaginable overbreadth, 
the result would be to prevent Congress's goals from being meaningfully 
served: children who would imitate the physical brawling on a detective 
drama would be no less likely to imitate the hard-hitting tackles on 
televised football games, assuming the risk of imitative behavior to be 
as the proponents suggest it is. And if the fictional bloodletting on 
``The Shield'' scares young children, then surely the very real 
violence that children might see while watching news about the war in 
Iraq would be no less frightening. The First Amendment forbids speech 
regulation that selectively targets some speech while exempting other 
speech that is likely to have similar effects. See Rubin v. Coors 
Brewing Co.,  514 U.S. 476, 487-89 (1995); City of Cincinnati v. 
Discovery Networks, Inc., 507 U.S. 410, 427 (1993); Edenfield v. Fane, 
507 U.S. 761, 773 (1993); Fox, supra, slip op. at 24 (noting that 
ability of children to hear fleeting expletives in contexts expressly 
permitted by the FCC such as news programs and a movie like ``Saving 
Private Ryan'' undermined the FCC's rationale that hearing such 
fleeting expletives was inherently damaging to children).
III. Even Ignoring These Core Definitional Defects, the FCC's Proposals 
        Cannot Be Reconciled With the First Amendment
    As a result of these characteristics, all of the options presented 
in the report clearly flunk even the ``intermediate'' scrutiny test 
that governs content-neutral regulations of speech.\5\ But the FCC's 
proposed regulations of television violence suffer from constitutional 
infirmities beyond the definitional flaws I have already described. 
Because each of the proposals imposes content-based restrictions on 
protected speech, all are subject to strict scrutiny under the First 
Amendment. And all three proposals fail such strict scrutiny.
---------------------------------------------------------------------------
    \5\ Even content-neutral restrictions on speech as such are 
constitutionally required to be narrowly tailored to serve the 
government's significant interests. See Sable Communications of Cal., 
Inc. v. FCC, 492 U.S. 115, 126 (1989); Clark v. Community for Creative 
Non-Violence, 468 U.S. 288, 293 (1984). And ``[a] statute is narrowly 
tailored [only] if it targets and eliminates no more than the exact 
source of the `evil' it seeks to remedy,'' Frisby v. Schultz, 487 U.S. 
474, 485 (1988), not if it is ``substantially broader than necessary to 
achieve the government's interest.'' Ward v. Rock Against Racism, 491 
U.S. 781, 800 (1989).

        A. Strict scrutiny applies to the FCC's specific proposals to 
---------------------------------------------------------------------------
        regulate violent television programming.

    Government regulation of expression based on its content is 
generally subject to strict scrutiny, the most exacting First Amendment 
standard of review. RAV. v. City of St. Paul, 505 U.S. 377, 382 (1992). 
Such regulations are ``presumptively invalid,'' id. at 382, and are 
void unless ``narrowly tailored to promote a compelling government 
interest'' in the strong sense that, ``[i]f a less restrictive 
alternative would serve the Government's purpose, the legislature must 
use the alternative.'' United States v. Playboy Entm't Group, 529 U.S. 
803, 813 (2000) (emphasis added).
    The FCC Report acknowledges that strict scrutiny normally applies 
to any regulation of expressive content. FCC Report at 11. We will 
shortly see specifically why each of the FCC's proposals would burden 
free speech in a way that triggers strict scrutiny. Before that 
analysis, however, I turn to three arguments that the FCC Report makes 
for its view that strict scrutiny is, as a general matter, inapplicable 
to almost any child-protective regulation of ``violent content'' on 
television. First, the FCC argues that strict scrutiny would not apply 
because ``violence'' (or some subset thereof) is analogous to 
``indecency'' and ``obscenity,'' regulation of which it contends is 
subject to a lower level of scrutiny. FCC Report at 12. Second, the FCC 
suggests that strict scrutiny may not apply when a legislature limits 
expression to protect children. FCC Report at 12. Finally, the FCC 
argues that strict scrutiny ``does not apply to the regulation of 
broadcast speech.'' FCC Report at 11. None of these claims has merit.

           1. Any analogy between ``violence'' and ``indecency'' or 
        ``obscenity'' cannot support evaluating the FCC's proposals 
        under anything less than strict scrutiny.

    Although acknowledging that depictions of violence generally are 
subject to strict scrutiny, the FCC Report contends that a subset of 
violent depictions--such as ``excessively violent programming''--could 
be regulated under a lower standard of scrutiny because it is analogous 
to ``indecency'' or ``obscenity.''
    First, the FCC Report argues that depictions of violence may be 
deemed ``excessive'' if they are ``patently offensive'' in the same way 
that indecent programming is. So defined, the Report contends, 
``excessively violent programming, like indecent programming, occupies 
a relatively low position in the hierarchy of First Amendment values 
because it is of `slight social value as a step to truth.' '' FCC 
Report at 12. But even assuming that ``excessively violent'' 
programming could be analogized to ``indecent'' programming, the FCC's 
argument would rest on a fundamentally flawed premise: namely, that 
regulations of ``indecent'' programming can be evaluated under a 
standard more forgiving than strict scrutiny. The FCC's sole support 
for this premise is FCC v. Pacifica Foundation, 438 U.S. 726 (1978), in 
which a three-justice plurality of the Supreme Court appeared to apply 
a standard other than strict scrutiny to the FCC's sanction of an 
indecent radio broadcast. But Pacifica is no longer good law on this 
point, and the FCC inexplicably ignores the Supreme Court's subsequent 
pronouncements about the level of scrutiny that applies to regulation 
of indecent content. For example, in Sable Communications v. FCC, 492 
U.S. 115 (1989), the Supreme Court unanimously applied strict scrutiny 
to evaluate the constitutionality of a prohibition on indecent dial-a-
porn messages. Id. at 126. And in United States v. Playboy 
Entertainment Group, Inc.,  529 U.S. 803 (2000), the Supreme Court 
unanimously applied strict scrutiny to evaluate the constitutionality 
of a time channeling requirement for cable television operators who 
primarily carried ``sexually-oriented programming.'' Id. at 813; see 
also id. at 831 (Scalia, J., dissenting) (applying strict scrutiny but 
finding that the test was satisfied); Id. at 836 (Breyer, J., 
dissenting) (same). Thus, the FCC's analogy between violent and 
indecent programming does not justify the application of a lower 
standard of scrutiny.
    Second, the FCC Report seems to suggest that a lower standard of 
scrutiny applies to regulations of violent television because 
depictions of violence are directly analogous to obscenity. FCC Report 
at 11 n. 56. The Supreme Court has recognized obscenity as one of the 
``few limited areas'' of essentially ``unprotected'' speech in which it 
``has permitted restrictions upon the content of speech'' without 
requiring application of strict scrutiny. RAV, 505 U.S. at 382-83. But 
any superficial similarity between obscenity and ``excessive'' violence 
does not lessen the First Amendment protection to which restrictions of 
violent television programming are subject.
    As an initial matter, the violent character of something depicted 
on television, no matter how extreme, does not in itself render the 
depiction ``obscene,'' as that term has long been understood in the 
First Amendment context, because the Supreme Court has clearly 
``confine[d] the permissible scope of . . . regulation [of obscenity] 
to works which depict or describe sexual conduct.'' Miller v. 
California, 413 U.S. 15, 24 (1973); see also Erznoznik v. City of 
Jacksonville, 422 U.S. 205, 213 n. 10 (1975) (``[T]o be obscene `such 
expression must be, in some significant way, erotic.' '') (quoting 
Cohen v. California, 403 U.S. 15, 20 (1971)); Roth v. United States, 
354 U.S. 476, 487 (1957) (``Obscene material is material which deals 
with sex in a manner appealing to prurient interest.'').
    Nor is the notion that certain depictions of violence may in some 
unspecified sense be like obscenity sufficient to justify applying a 
lower standard of review to television violence. Testing that 
proposition, certain opponents of violent programming have suggested 
adapting the definition of obscenity from Miller v. California  to 
cover television violence, so that programming would be deemed 
``excessively violent'' if, e.g.,

           1. Taken as a whole and applying contemporary community 
        standards, the average person would find that it has a tendency 
        to cater or appeal to morbid interests in violence . . . ; and

           2. It depicts violence in a way which is patently offensive 
        to the average person applying contemporary adult community 
        standards . . . ; and

           3. Taken as a whole, it lacks serious literary, artistic, 
        political, or scientific value. . . .

    Video Software Dealers Ass'n v. Webster, 968 F.2d 684, 687 (8th 
Cir. 1992). In my view, the Supreme Court would have to apply strict 
scrutiny to regulations based upon any such ``definition by 
substitution.'' To be sure, the definition is ``derived'' from 
obscenity in the mechanical sense that it simply substitutes the word 
``violence'' for the word ``sex.'' But one could as easily replace 
``sex'' in the Miller definition with such words as ``suffering,'' 
``tragedy,'' ``death,'' ``disability''--or, for that matter, 
``genius,'' ``comedy,'' or even ``life.'' Analytically, each resulting 
derivative of the Miller test would be every bit as close an analogue 
to obscenity as is the suggested definition of ``excessive violence,'' 
but these simple substitutions could not for that reason alone 
delineate categories of speech that enjoy reduced First Amendment 
protection. The government could not, for example, obtain less 
stringent First Amendment review by regulating speech that ``appeals to 
morbid interests in comedy'' or that ``depicts genius in a way which is 
patently offensive to the average person.''
    This definition-by-substitution approach is also inconsistent with 
the First Amendment. The Supreme Court has adopted an extremely strict 
and carefully ``limited categorical approach'' to defining the classes 
of less-protected speech. RAV, 505 U.S. at 383. ``The Supreme Court 
historically has confined the categories of unprotected speech to 
defamation, fighting words, direct incitement of lawless action, and 
obscenity,'' Eclipse Enters., Inc. v. Gulotta, 134 F.3d 63, 66 (2d Cir. 
1997), and it has refused to create or ``find'' additional categories 
that receive something less than strict scrutiny. The lower courts, 
accordingly, have uniformly applied First Amendment strict scrutiny to 
laws defining impermissible depictions of violence based upon Miller's 
definition of obscenity. See, e.g., Eclipse, 134 F.3d at 64 (``patently 
offensive'' content lacking ``serious literary, artistic, political and 
scientific value''); Webster, 968 F.2d at 684 (``patently offensive'' 
content lacking ``serious literary, artistic, political and scientific 
value'').
    This carefully limited approach reflects the well-founded fear that 
a looser view of these less-protected categories--one fastening on such 
adjectives as ``morbid,'' ``patently offensive,'' and absence of 
``serious . . . value,'' and ignoring the operative nouns of 
``defamation,'' ``fighting words,'' ``incitement,'' and ``obscenity''--
could sharply and unjustifiably delimit the scope of free speech. 
Opponents of television violence seek to analogize certain 
``excessive'' depictions of violence to obscenity in part because they 
believe that such violence is no less psychologically harmful than 
obscenity, especially to young children. But such generic and 
decontextualized reasoning potentially opens the door to regulations of 
many other types of speech that people may think is psychologically 
harmful, from caricature, to blasphemy, to flag burning, Texas v. 
Johnson, 491 U.S. 397 (1989), to rude political speech, Cohen v. 
California, 403 U.S. 15 (1971) (``F--- the Draft''), to disrespectful 
remarks about parents and other authority figures, Watts v. United 
States, 394 U.S. 705, 706 (1969) (per curiam) (``If they ever make me 
carry a rifle the first man I want to get in my sights is L.B.J.''). 
These examples of fully protected speech, like certain instances of 
``excessive'' violence, may bear some superficial similarities to 
obscenity: they may disgust certain people, violate some community 
standards of propriety, and appeal to what some people deem base, 
immoral, or unseemly instincts. But if the First Amendment is to remain 
a robust protection of free speech--and if obscenity, incitement, and 
the like are to remain the exceptions, rather than the norm--these 
arguable similarities cannot justify lowering the level of First 
Amendment protection enjoyed by such expression.
    Finally, it might be argued that watching violent, terrifying, or 
other extreme events can excite some people physically in a way that 
resembles reflexive reactions to sexual material. But that proves far 
too much. Athletic contests, religious rituals, political rallies, and 
certain kinds of music are all famously capable of exciting passionate 
and even physically aggressive visceral responses--including responses 
that many might deem negative or even patently offensive. Freedom of 
speech would be in grave jeopardy if the presence of a subliminal or 
physiological component in a communication's range of psychological 
effects could strip it of constitutionally protected status.

           2. Strict scrutiny applies to regulations intended to 
        protect minors.

    The FCC Report suggests that a lower standard of review applies to 
regulations of speech that are motivated by an attempt to protect 
children. FCC Report at 3. This argument relies upon Ginsberg v. New 
York, 390 U.S. 629 (1968), in which the Supreme Court upheld a state 
law prohibiting the sale of sexually indecent (but not obscene) 
materials to minors. But Ginsberg does not stand for the general rule 
that something less than strict scrutiny applies to laws seeking to 
protect minors by replacing parental control of the influences to which 
growing children are subject with central governmental control of those 
influences.\6\ Rather, Ginsberg holding rested on a notion of 
``variable obscenity'' that allowed the definition of obscenity to be 
adjusted for different target audiences, so that material merely 
indecent for adults could be deemed obscene for minors. 390 U.S. at 
638; cf. Ginzburg, 383 U.S. at 472-73 (noting that material can be 
obscene when marketed to certain audiences but non-obscene otherwise). 
As explained above, however, the logic that relativized the definition 
of obscene material in terms of the audience to which such material is 
directed has no logical analogue in the realm of violent but non-
obscene depictions.
---------------------------------------------------------------------------
    \6\ On the contrary, as we will see shortly, the Court has 
generally applied strict scrutiny to laws that might interfere with the 
ability of parents themselves ``to make decisions concerning the care, 
custody, and control of their [own] children.'' Troxel v. Granville, 
530 U.S. 57, 66 (2000).
---------------------------------------------------------------------------
    Apart from the illogic of extrapolating notions of ``variable 
obscenity'' to the realm of violent depictions, the idea that 
children's special malleability counts in favor of government control 
turns the First Amendment on its head. The Supreme Court has recognized 
the powerful and (as some people believe) detrimental influence that 
the government can exert on young minds with such control, in several 
decisions denying the government the power to shape the education of 
children as it saw fit. For example, in Wisconsin v. Yoder, 406 U.S. 
205, 211 (1972), the Court held that the state could not compel Amish 
adolescents to attend public or private schools because the Amish faith 
of their parents taught that immersion in a school's regimen together 
with non-Amish of similar age would expose the Amish adolescents to 
values ``in marked variance with Amish values and the Amish way of 
life.'' Similarly, in Meyer v. Nebraska, 262 U.S. 390, 402 (1923), the 
Court struck down a law prohibiting parents from engaging educators to 
teach foreign languages to their children, comparing that law 
unfavorably to the Spartan practice of housing young boys in military 
barracks ``[i]n order to submerge the individual and develop ideal 
citizens.'' Centralized control over the materials available to 
children may well flout not only the wishes of those children but also 
of their parents, who may have very different ideas about the kinds and 
levels of violence that are appropriate for their children to view. 
Indeed, some children and parents may be convinced that it is valuable 
to allow their children to observe the very depictions of violence from 
which other parents might wish to protect theirs, believing that ``[t]o 
shield children right up to the age of 18 from exposure to [such] 
violent descriptions and images would . . . [be] deforming; it would 
leave them unequipped to deal with the world as we know it.'' Kendrick, 
244 F.3d at 577.
    Finally, just as children have a First Amendment right to see 
violent television programming that government, but not their parents, 
wish them not to see, so broadcasters, cable/satellite operators, 
artists, and other content providers have a right to furnish that 
programming. ``[T]he government cannot silence protected speech by 
wrapping itself in the cloak of parental authority.'' IDSA, 329 F.3d at 
960.
    I do not mean to suggest that parents have no legitimate concerns 
about allowing their children to see violence on television. My point 
is simply that centralized government regulation of television content 
is not the constitutionally appropriate way to respond to such 
concerns. Under the First Amendment, regulation of this sort does not 
receive a free pass simply because it is motivated by, concerned with, 
or addressed to children. Rather, any such regulation must be evaluated 
under the same standard that applies to all restrictions on speech: 
strict scrutiny.

           3. Strict scrutiny applies to regulations of broadcast 
        television content.

    The FCC Report contends that strict scrutiny would be inapplicable 
to regulation of the ``violent content'' of broadcast television 
programming. FCC Report at 11. To support that proposition, the FCC 
cites two justifications: (i) broadcasting's supposed ``uniquely 
pervasive presence in the lives of all Americans,'' and (ii) 
broadcasting's supposed ``accessibility to children, coupled with the 
government's interests in the well-being of children and in supporting 
parental supervision of children.'' FCC Report at 11 (internal 
quotations omitted). For these reasons, the FCC argues, broadcasting 
traditionally has been afforded a lower level of First Amendment 
protection than other means of communication (such as cable), 
purportedly giving the government greater leeway to impose content-
based regulations. FCC Report at 11.
    Unfortunately, the FCC is caught in a time warp. The justifications 
for allowing government regulation of content on broadcast television 
date back several decades to the Supreme Court's decisions in Red Lion 
v. FCC, 395 U.S. 367 (1969), and FCC v. Pacifica Foundation, 438 U.S. 
726 (1978). In Red Lion, the Court observed that ``if there is to be 
any effective communication by radio, only a few can be licensed and 
the rest must be barred from the airwaves.'' 395 U.S. at 389. ``Because 
of the scarcity of radio frequencies, the Government is permitted to 
put restraints on licensees in favor of others whose views should be 
expressed on this unique medium.'' Id. 390. In Pacifica, the Court 
upheld an after-the-fact fine for the airing of ``seven dirty words'' 
in the course of a comedy monologue broadcast over the radio. In that 
case, the Court took note of the listener's privacy interests in 
controlling what he hears in his own home or car and concluded that, 
``[b]ecause the broadcast audience is constantly tuning in and out, 
prior warnings cannot completely protect the listener or viewer from 
unexpected program content'' on broadcast radio. 438 U.S. at 748.
    In my view, however, broadcast television can no longer be 
considered the unloved stepchild of the First Amendment--to the extent 
that its subordinate status was ever justified to begin with. This is 
true for two reasons. First, technological advances have made broadcast 
television more similar to other media such as cable, content-based 
regulation of which is indisputably subject to strict scrutiny. See 
Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 
94, 102 (1973) (``[T]he broadcast industry is dynamic in terms of 
technological change; solutions adequate a decade ago are not 
necessarily so now, and those acceptable today may well be outmoded 10 
years hence.''). Second, to the degree that broadcast television 
retains features distinct from other television media, these 
distinctions cannot justify the kinds of content-based regulation of 
speech that the FCC Report proposes. Cf. Turner Broadcasting Sys., Inc. 
v. FCC, 512 U.S. 622, 639 (1994) (``[W]hatever relevance these physical 
characteristics may have in the evaluation of particular cable 
regulations, they do not require the alteration of settled principles 
of our First Amendment jurisprudence.'').
    The Supreme Court's post-Red Lion case law on this subject, while 
paying lip service to the anomalous place of broadcast in First 
Amendment jurisprudence, has increasingly recognized that broadcast 
media have grown ever more similar to other media, such as cable, that 
enjoy undiluted First Amendment protection. The Supreme Court first 
began to dismantle the foundations of broadcast media's subordinate 
First Amendment status as early as 1984, in FCC v. League of Women 
Voters, 468 U.S. 364 (1984), which struck down an act of Congress 
forbidding federally funded, noncommercial broadcast stations from 
engaging in editorializing. The Court assumed that, under Red Lion, the 
unique features of broadcast media ``required some adjustment in First 
Amendment analysis.'' Id. at 377. But in invalidating the Federal 
statute, the Court applied a standard strikingly similar to the normal 
strict scrutiny test that applies to most regulations of speech: it 
held that Congress's restriction of federally funded broadcast media 
must be ``narrowly tailored to further a substantial governmental 
interest,'' id. at 380, and that Congress could not burden free speech 
when its ``interest[s] can be fully satisfied by less restrictive means 
that are readily available,'' Id. at 395.
    The next significant erosion in the subordinate status of broadcast 
media occurred when the Supreme Court seriously examined the First 
Amendment implications of cable television in Denver Area 
Telecommunications Consortium v. FCC, 518 U.S. 727 (1996). A four-
justice plurality noted that ``cable and broadcast television differ 
little, if at all,'' id. at 748, because ``cable television . . . is as 
accessible to children as over-the-air broadcasting, if not more so,'' 
and because, like broadcast television, ``[c]able television systems . 
. . have established a uniquely pervasive presence in the lives of all 
Americans,'' id. at 744-45. (The U.S. court of Appeals for the Second 
Circuit recently reached the same conclusion, noting that ``it is 
increasingly difficult to describe the broadcast media as uniquely 
pervasive and uniquely accessible to children.'' Fox, supra, slip op. 
at 36.) Of course, these two factors had been cited by Pacifica to 
justify the Court's application of a lower standard of review to 
regulations of broadcast media. Nevertheless, when the Court again 
considered the constitutionality of cable regulations in Playboy, it 
did not hold that cable media enjoyed less First Amendment protection 
even though, like broadcasting, it had become pervasive nationally and 
accessible to children. 529 U.S. at 813-14, 826-27. Rather, the Court 
insisted that strict scrutiny must apply to content-based restriction 
of expression on cable television, thus implicitly calling into 
question the continued validity of Pacifica rationales for 
subordinating broadcast media under the First Amendment.
    This growing doctrinal merger between broadcast and non-broadcast 
media in First Amendment jurisprudence properly recognizes the outdated 
nature of the technological assumptions that initially undergirded the 
``broadcast exception.'' For instance, the Pacifica Court found that 
broadcast radio was ``uniquely accessible to children'' in an era where 
voluntary blocking technologies such as the V-Chip did not exist; 
hence, in Playboy, the Supreme Court applied strict scrutiny to 
regulations of cable television largely in reliance on the ``key 
difference'' that only ``[c]able systems had the capacity to block 
unwanted channels on a household-by-household basis.'' 529 U.S. at 815. 
Today, however, this distinction has dissipated, as more households 
access broadcast channels through their cable or satellite systems, and 
as more technology becomes available to block programs on broadcast as 
well as non-broadcast television, as the FCC Report implicitly 
acknowledges. Fox, supra, slip op. at 38 (``If the Playboy decision is 
any guide, technological advances [such as the V-Chip] may obviate the 
constitutional legitimacy of the FCC's robust oversight.'').
    Another technological justification noted above for applying a 
lower level of scrutiny to broadcast regulations has been spectrum 
scarcity. See Red Lion v. FCC, 395 U.S. 367 (1969); Turner, 512 U.S. at 
637 (referring to ``the unique physical limitations of the broadcast 
medium''). The limited number of frequencies available for over-the-air 
broadcasts has traditionally been cited as a basis for government 
regulation of broadcasting to prevent signal interference (when two 
broadcasters use the same frequency) and to ensure a sufficiently broad 
range of voices on the airwaves. Id. at 638.
    But technological changes have greatly eroded this argument as 
well. Broadcasters can now use ever narrower bands of the spectrum, 
vastly increasing the number of channels that can be transmitted over 
the air without signal interference. Moreover, the expansion and 
increasing availability of alternative forms of communication, such as 
cable and the Internet, have vitiated any asserted government need to 
regulate the content of broadcasting to promote a diversity of 
communications. Cf. League of Women Voters, 468 U.S. at 376 (twenty 
years ago, acknowledging ``[c]ritics [who] charge that with the advent 
of cable and satellite television technology, communities now have 
access to such a wide variety of stations that the scarcity doctrine is 
obsolete''). As formerly distinct media converge, any basis for 
distinguishing among television, newspapers, and the Internet 
dissolves: any of us can read the Wall Street Journal in paper or on 
the Internet, and those who miss episodes of Ugly Betty or Grey's 
Anatomy can watch the shows in their entirety through ABC's website. 
See Fox, supra, slip op. at 38 (``The proliferation of satellite and 
cable television channels--not to mention Internet-based video 
outlets--has begun to erode the `uniqueness' of broadcast media.'').
    Moreover, assertions about spectrum scarcity beg the question as to 
whether any particular content-based regulation can be justified. Even 
at the time, the Court's scarcity rationale in Red Lion at most was 
held to justify regulation to ``increas[e] the diversity of speakers 
and speech''; it never ``justif[ied] censorship'' of the type being 
proposed by the FCC with regard to violent television programming. See 
Pacifica, 438 U.S. at 770 n. 4 (Brennan, J., dissenting); see also 
League of Women Voters, 468 U.S. at 379 (characterizing Red Lion as 
allowing the government to advance its interest ``in ensuring balanced 
presentations of views in this limited medium and yet pos[ing] no 
threat that a broadcaster would be denied permission to carry a 
particular program or to publish his own views''). Indeed, the majority 
in Pacifica did not rely at all on notions of spectrum scarcity. 
Whatever the validity of the technological distinctions historically 
drawn between broadcast and non-broadcast media, the FCC cannot cite 
these distinctions to support the kinds of content-based, speech-
limiting regulations that it proposes as a response to television 
violence.
    The Supreme Court's post-Red Lion and Pacifica case law thus 
reflect its awareness that the historically anomalous First Amendment 
treatment of broadcast media has become ever less justified over time, 
evaporating any basis for withholding strict scrutiny from content 
regulation of broadcast television programming.

        B. Under strict scrutiny, the FCC's proposals share a common 
        flaw: they are not the least restrictive means to satisfy the 
        government's interests.

    The government is strictly limited in the tools with which it may 
regulate speech. Erznoznik v. City of Jacksonville, 422 U.S. 205, 208 
(1975). Assuming that the goal of limiting children's access to violent 
television programming is a compelling interest, regulation of speech 
to achieve that goal is ``unacceptable if less restrictive alternatives 
would be at least as effective in achieving the legitimate purpose that 
the statute was enacted to serve.'' Reno v. ACLU, 521 U.S. at 874; see 
also Sable Commc'ns, 492 U.S. at 126 (``The Government may . . . 
regulate the content of constitutionally protected speech in order to 
promote a compelling interest if it chooses the least restrictive means 
to further the articulated interest.''). The ``least restrictive 
means'' test ``is the most demanding test known to constitutional 
law.'' City of Boerne v. Flores, 521 U.S. 507, 533 (1997).
    Here, a large number of less restrictive alternatives exist to 
control the availability of violent television programming to children. 
Crucially, all of these alternatives avoid the problems posed by the 
FCC's proposals by empowering parents rather than government to control 
what children see, thus fitting far more comfortably within the 
framework that the First Amendment establishes as the baseline for 
reconciling a system of free expression with the threats that some 
forms of speech might pose to some children. The FCC criticizes only a 
small subset of these alternatives, but its criticisms--aside from 
being too narrowly focused--are both legally immaterial and factually 
inaccurate.

           1. Many less restrictive alternatives exist to respond to 
        violent television programming.

    The FCC Report surveys only a small fraction of the options 
available, limiting its discussion of current technologies to the V-
Chip and cable operator-provided parental controls, coupled with 
voluntary ratings systems. But the FCC substantially underreports the 
extent to which existing technologies can give effect to the 
government's goal of limiting the exposure of children to television 
programming that their parents deem unacceptably violent. Parents have 
access to a wide range of tools--shortchanged or ignored by the FCC 
Report--with which they can limit their children's exposure to such 
programming should they wish to do so. As Commissioner McDowell notes 
in his separate statement, ``Never have parents been more empowered to 
choose what their children should and should not watch.'' FCC Report at 
37.
    First, V-Chips are available in all but the smallest TVs (that is, 
all TVs bigger than a piece of legal paper or a laptop computer) 
manufactured since 2000.\7\ The upcoming transition to digital 
television, scheduled to take place shortly after the next Presidential 
election, will make V-Chip technology universal.\8\
---------------------------------------------------------------------------
    \7\ As the FCC acknowledged in its report, under a 1996 amendment 
to Title III of the Communications Act, all televisions sets 
manufactured in the United States or shipped in interstate commerce 
with a screen larger than 13 inches must be equipped with a ``V-Chip'' 
that can be programmed to block programming that parents do not want 
their children to view. Even if it is correct that only half of 
televisions in use are equipped with V-Chips, FCC Report at 13, that is 
irrelevant in light of the fact that 100 percent of new televisions 
available for purchase are equipped with V-Chips. And while it is up to 
individual parents to decide whether to use it, information on using 
the V-Chip is readily available. The FCC itself has posted a website 
that gives detailed instruction to parents on how to use the V-Chip, 
and industry and private groups have provided similar information via 
websites and tutorials. See Adam Thierer, The Right Way to Regulate 
Violent TV at 8, Progress and Freedom Foundation (May 10, 2007); see 
also 
http://www.controlyourtv.org (industry-sponsored site explaining 
controls available, and offering information on how to use them).
    \8\ The Deficit Reduction Act of 2005 requires that analog 
television broadcasting cease on February 17, 2009. See Pub. L. 109-171 
(Feb. 8, 2006),  3002(b). After that, consumers will need to obtain a 
digital receiver or a set-top converter (both of which will include a 
V-chip), or receive television from cable or satellite systems that 
enable parents to block programming using the same ratings system.
---------------------------------------------------------------------------
    Second, V-Chip-like devices are also available on nearly all cable 
and satellite services, allowing parents to block either entire 
channels or just those shows that the parents believe include 
unacceptably violent (or otherwise objectionable) content.\9\ 
Furthermore, on-screen guides are standard features of most cable and 
satellite services, and almost all cable and satellite providers allow 
viewers to establish special menus tailored to their own preferences so 
as to block channels they do not want their children to watch. Two 
examples are Locks & Limits on DIRECTV and Adult Guard on DISH Network, 
which Commissioner Adelstein mentioned in his statement accompanying 
the FCC Report. These parental controls are readily available to the 
87.7 percent of American households that currently subscribe to cable 
or satellite services.\10\
---------------------------------------------------------------------------
    \9\ Although digital cable and satellite control boxes are more 
advanced, both analog and digital cable and satellite boxes allow 
parents to block individual channels and lock them with passwords. The 
Right Way to Regulate Violent TV at 9-10. Cable subscribers without 
set-top boxes also can request that cable providers block channels from 
coming into their homes. Id. at 9. See also U.S.C. 544(d)(2) (providing 
that ``[i]n order to restrict the viewing of programming which is 
obscene or indecent, upon the request of a subscriber, a cable operator 
shall provide (by sale or lease) a device by which the subscriber can 
prohibit viewing of a particular cable service during periods selected 
by that subscriber''). Since March 2004, cable companies providing 
services to 90 percent of cable subscribers voluntarily committed to 
providing blocking service for free. 
See   http://i.ncta.com/ncta_com/PDFs/ControlyourTV/
Take%20Control%20FAQS%204-27-05.pdf.
    \10\ Nielsen Television Index, May 2007.
---------------------------------------------------------------------------
    Third, Parents can choose to subscribe to family-friendly cable and 
satellite options, such as Comcast's Children and Family channels, DISH 
Network's Family Pak, and DIRECTV's Family Choice Plan, which enable 
individual households to limit their children to child-friendly 
content.
    Fourth, Parents can use time-shifting technologies (such as VCRs 
and DVRs) to record certain programs they deem appropriate for their 
children, and allow their children to watch only pre-recorded 
programming.
    Fifth, rents can employ a number of after-market solutions to limit 
the channels their children watch and the time of day their children 
are allowed to watch television, such as the TV Channel Blocker or 
various timers that allow televisions to work only at certain 
times.\11\
---------------------------------------------------------------------------
    \11\ These after-market units can be programmed to block cable 
channels that parents do not wish to see in their home, or restrict the 
time of day or total numbers of hours that their children are allowed 
to watch television. These units include special remote controls that 
limit children to a certain group of channels. Id. at 10-12.
---------------------------------------------------------------------------
    Sixth, rents can watch television with their children and/or 
establish and enforce rules about what children can watch and when they 
can watch it. Many resources, such as the Pause, Parent, and Play 
Project,\12\ provide resources enabling parents to involve themselves 
directly in the programming that their children see.
---------------------------------------------------------------------------
    \12\ See http://www.pauseparentplay.org/.
---------------------------------------------------------------------------
    There are also a number of ratings systems that parents can access 
to guide their choices in using all of the above tools. In addition to 
the industry's voluntary ratings program, many independent groups 
provide ratings guides that use their own criteria to tell parents what 
may or may not be appropriate for their children to watch. For example, 
the Parents Television Council provides the ``Family Guide to Prime 
Time Television,'' \13\ Common Sense Media provides its own ratings 
based on what their members think is appropriate for children in six 
age brackets covering toddlers to teenagers,\14\ and PSV Ratings 
provides a Family Media Guide that provides parents' own, individual 
views about suitability.
---------------------------------------------------------------------------
    \13\ Available online at http://www.parentstv.org/PTC/familyguide/
main.asp.
    \14\ Available online at http://www.commonsensemedia.org/tv-
reviews/.
---------------------------------------------------------------------------
    All of these alternatives, and the voluntary ratings systems that 
accompany them, serve the government's interests in protecting children 
and increasing parental control while being far less restrictive in 
their effect on First Amendment rights. Two features of these 
alternatives are crucial: they allow more fine-grained blocking of 
violent programming, so that blocking can be done by subject matter, 
time, channel, program, show, and so on; and they accomplish this 
blocking by empowering parents rather than empowering government. As a 
result, these voluntary technologies impose a significantly smaller 
burden on First Amendment speech rights. These alternatives foreswear 
imposing burdens of any sort at the source of speech and instead 
strengthen the ability of each individual household to govern the 
content that reaches children. They do not restrict access to 
programming across the board, denying such access even to the vast 
majority of American households that contain no young children. 
Moreover, rather than depriving parents of their right to provide their 
children with violent programming that they think is appropriate or 
even necessary (such as war movies), parents will retain freedom to 
decide for themselves what is appropriate for their younger children.
    On these grounds the Supreme Court has signaled approval of these 
voluntary measures as less restrictive alternatives to centralized 
regulations such as time channeling and unbundling. In Denver Area, in 
the course of invalidating mandatory segregation and blocking measures 
for cable television, the Court noted that voluntary user-initiated 
blocking technologies, including the V-chip, ``are significantly less 
restrictive'' and criticized Congress for not ``explain[ing] why . . . 
[such] blocking alone . . . cannot adequately protect . . . children 
from [`indecent'] programming.'' 518 U.S. at 756. Four years later, in 
Playboy, the Court rejected mandatory scrambling and time-channeling 
provisions for pornography broadcast on cable in part because it was 
not persuaded that Congress had sufficiently considered the merits of 
voluntary user-initiated blocking. 529 U.S. at 822. Finally, in Reno v. 
ACLU the Court relied on the existence of less restrictive, potentially 
effective alternatives to content-based regulation--including 
``tagging'' indecent Internet material in a way that ``facilitates 
parental control of material coming into their homes''--to strike down 
a congressional ban on indecent material on the Internet. 521 U.S. at 
879. These precedents demonstrate the priority of these less 
restrictive means under the First Amendment.
    Congress itself has recognized that these alternatives do present 
less restrictive means of protecting children. In the legislation 
requiring the V-Chip and calling for a complementary voluntary rating 
system, Congress stated that the initiative was intended to ``empower[] 
parents to limit the negative influences of video programming that is 
harmful to children,'' Pub. L. 104-104,  551(a)(8), and found that 
``[p]roviding parents with timely information about the nature of 
upcoming video programming and with the technological tools that allow 
them easily to block violent, sexual, or other programming that they 
believe harmful to their children is a nonintrusive and narrowly 
tailored means of achieving that compelling governmental interest.'' 
Id.  551(a)(9). Congress's own recognition of these less restrictive 
means to achieve the same goal is an especially compelling indication 
that mandatory restrictions would be unconstitutional. See Boos v. 
Barry, 485 U.S. 312, 329 (1988) (concluding that Congress's 
implementation of a less-restrictive measure ``amply demonstrates that 
the [challenged speech restriction] is not crafted with sufficient 
precision to withstand First Amendment scrutiny''); see also Denver 
Area, 518 U.S. at 758 (``Congress's different, and significantly less 
restrictive'' V-Chip solution suggests ``that the more restrictive 
means are not `essential.' '').

           2. These less restrictive alternatives embody the parent- 
        and individual-centered structures for regulating speech that 
        the Supreme Court has recognized as preferred by the First 
        Amendment.

    Mandatory government controls over speech content conflict at their 
core with the system of free expression established in this country--a 
system that eschews centralized controls of speech in favor of allowing 
individuals to decide for themselves what they will read, watch, or 
observe, and allowing parents and families to decide what their 
children should be exposed to as they mature. In this system, the 
government may step in to override personal choice only when 
individuals exposed to unwanted materials constitute a ``captive 
audience.'' Short of that circumstance, the system leaves it to 
individual adults to avert their gaze from speech that they deem 
objectionable and to shield their children from such speech. See, e.g., 
Cohen v. California, 403 U.S. 15, 21 (1971).
    Within this system, the Supreme Court has preferred allowing 
individuals, but not the government, to impose their own ``selective 
restrictions'' on speech that ``intrudes on the privacy of the home.'' 
Erznoznik, 422 U.S. at 209. A pair of Supreme Court decisions 
illustrates the basic principle. In Rowan v. Post Ofice Department, 397 
U.S. 728, 737 (1970), the Supreme Court upheld a Federal statute 
empowering individuals to give notice to the Post Office that they 
would rather not receive mailings from certain parties. But in Bolger 
v. Youngs Drug Products Corp., 463 U.S. 60, 72 (1983), the Court 
invalidated a Federal statute through which the government prohibited 
the mailing of unsolicited ads for contraceptives. The Bolger Court 
explained that it has ``recognized the important interest in allowing 
addressees to give notice to a mailer that they wish no further 
mailings [citing Rowan]. But we have never held that the government 
itself can shut off the flow of mailings to protect those recipients 
who might potentially be offended.'' Id.
    The Supreme Court has only once allowed the FCC to curb speech 
being broadcast into the home. It did so nearly three decades ago in 
Pacifica, 438 U.S. 726 (1978), a decision that, as discussed earlier, 
was explicitly limited to a unique situation: a comic monologue focused 
on words with explicit sexual meaning, presented in no broader literary 
or entertainment context than one highlighting their forbidden 
character, broadcast on the radio. But the Court upheld the regulation 
in Pacifica in large part because, under the technology available at 
the time, there was no other way to ``protect the listener or viewer 
from unexpected program content,'' Pacifica, 438 U.S. at 748--a concern 
that subsequent technological innovations have alleviated, at least as 
to television. See supra Part III(B)(1).
    The parental controls now available observe the line established in 
Rowan and. Bolger that allows individuals and parents to edit what 
comes into the home by voluntary blocking, but that does not allow the 
government to prevent government-defined content from going into the 
home in the first place. Such controls are not, of course, foolproof, 
and their use entails an investment of time and energy to supervise the 
television viewing of one's children. But the salient point is that, 
taken together, these voluntary, user-initiated controls essentially 
allow parents to prevent their children from watching television 
programming that they believe contains unacceptably violent content. 
This gives effect to the government's goal of protecting minor children 
from viewing such content to the degree the individual parents involved 
share that goal and think it applicable to their own children.
    Moreover, these parental controls are more effective than 
government regulation at letting children see what their parents want 
them to see. In Reno v. ACLU and Playboy, the Supreme Court left no 
doubt that the government has no independent interest in protecting 
children from objectionable content beyond the interest of assisting 
those parents who desire to shield their children from such speech. See 
Reno v. ACLU, 521 U.S. at 865, 877-78; Playboy, 529 U.S. at 811, 813. 
The Commission may not, for example, substitute its judgment for that 
of parents who might consider it entirely appropriate that their 
children be exposed to a realistic depiction of the life of police 
officers or hospital workers. Under our system, such judgments are for 
parents, not the government, to make. See Troxel v. Granville, 530 U.S. 
57, 66 (2000) (collecting multiple opinions ``recogniz[ing] the 
fundamental right of parents to make decisions concerning the care, 
custody, and control of their children''); Wisconsin v. Yoder, 406 U.S. 
205, 232 (1972) (``This primary role of the parents in the upbringing 
of their children is now established beyond debate as an enduring 
American tradition.'').

           3. The FCC's criticisms of these alternatives do not save 
        its proposals under the First Amendment.

    The FCC Report acknowledges but criticizes a number of less 
restrictive alternatives, focusing primarily on the V-chip, cable 
blocking technologies, and the voluntary ratings system. These 
criticisms fail on both factual and legal grounds and do not excuse the 
government from its obligation to use the less restrictive means 
outlined above.
    Inexplicably, the FCC Report simply ignores almost all of the 
alternative technologies discussed above--a silence that earns a sharp 
rebuke from Commissioner Adelstein. See FCC Report at 32-33. As a 
result, the Report never tackles the legal significance of the ever-
improving voluntary blocking technologies now available to parents, 
even though the First Amendment mandates a careful appraisal of such 
alternatives.
    Moreover, the FCC Report engages in a broad-brushed criticism of 
the V-Chip and the voluntary ratings system without acknowledging a 
core analytic confusion that renders its criticisms incomplete and even 
incoherent. Blocking technology that fails to shield children from 
things the government might prefer they not see but that their parents 
would like them to see (or are at least indifferent about their seeing) 
cannot on that account be deemed constitutionally ineffective. Yet much 
of the evidence cited by the FCC Report for the ostensible failings of 
existing alternatives focuses on statistics about parental inaction 
that give no indication that determined parents are unable to control 
what their children end up watching. For instance, the FCC reports that 
``only 15 percent of all parents have used the V-chip,'' and ``20 
percent of parents know they have a V-chip, but have not used it.'' FCC 
Report at 14. But these numbers, even if accurate, say nothing about 
whether parents are dissatisfied with the V-chip, whether they instead 
use one of the many other methods of controlling what their children 
watch, or whether, as the Supreme Court noted in Playboy, they simply 
responded to the ``crisis'' of television violence ``with a collective 
yawn.'' \15\ 529 U.S. at 816. In other words, that the children of such 
parents may be seeing content that the government would rather they not 
see certainly does not establish that they are seeing content that 
their parents would rather they not see. Given the First Amendment's 
preference for parent- and individual-focused voluntary blocking over 
more restrictive forms of speech regulation, many of the FCC's 
criticisms are misdirected.
---------------------------------------------------------------------------
    \15\ In fact, the study cited by the FCC for its figures itself 
calls into question the FCC's conclusion that the V-Chip is 
ineffective. The study reports, for instance, that ``[t]he vast 
majority of parents who have used the V-Chip say they found it useful, 
including 61 percent who say it was `very' useful and 28 percent who 
say `somewhat' useful,'' and it notes that ``[a]mong parents who are 
aware that they have a V-Chip but have chosen not to use it, 60 percent 
say the main reason is that an adult is usually nearby when their kids 
watch TV, and 20 percent say it's because they trust their children to 
make their own decisions.'' Kaiser Family Foundation, Parents, Media 
and Public Policy, at 7 (Fall 2004).
---------------------------------------------------------------------------
    The FCC Report also fails to recognize the full legal import of the 
least-restrictive-means requirement. Even assuming, contrary to the 
evidence, that the alternatives listed above are not fully as effective 
as the FCC's proposals, those proposals would still flunk strict 
scrutiny because a method of achieving a compelling government interest 
must be recognized as a less restrictive means even if it is not 
absolutely effective. The Supreme Court has never required a guarantee 
that no inappropriate material will reach children, nor has it accepted 
the absence of such assurance as a basis to reject a less-restrictive 
alternative. In Denver Area, the Court stated: ``No protection, we 
concede, short of an absolute ban, can offer certain protection against 
assault by a determined child. We have not, however, generally allowed 
this fact alone to `justify reduc[ing] the adult population . . . to . 
. . only what is fit for children.' '' 518 U.S. at 759. Accordingly, in 
Sable Communication, the Supreme Court invalidated a blanket 
prohibition on indecent and obscene commercial telephone messages 
transmitted interstate. Access code and screening options that were 
available to block children's access to such messages ``provide[d] the 
means of dramatically reducing the number of calls from minors'' and 
were described as having the potential to be ``very effective'' but 
``not foolproof.'' 492 U.S. at 130 n. 10. Despite the fact that these 
options were still largely untested and could likely be overcome by 
``the most enterprising and disobedient young people,'' the Court still 
deemed them less restrictive means that invalidated the unquestionably 
more effective blanket prohibition. Id. at 130.
    In any event, the V-Chip and other technologies that could be used 
to block violent programming are substantially more accessible, and in 
significantly wider use, than other technologies that the Supreme Court 
has deemed effective and constitutionally preferred alternatives to 
content regulation. In Reno v. ACLU, the Court cited as an effective 
alternative software that was then just a ``mere possibility,'' 
Playboy, 529 U.S. at 814 (discussing Reno v. ACLU), and that ``would 
soon be widely available,'' Reno v. ACLU, 521 U.S. at 876-877 (emphasis 
added). To obtain that software, Internet users were required to 
affirmatively seek out and pay for it. The V-chip, by contrast, is 
already included in all but the smallest new televisions, with similar 
technology already ubiquitous for cable and satellite subscribers, and 
unlike Internet-blocking software, these technologies do not require 
periodic upgrades that must be paid for and installed.
    Finally, the FCC Report criticizes certain existing technologies 
for being ineffective in part because parents remain ignorant of them. 
But the Supreme Court's decisions make clear that the proper response 
to lack of public awareness about a viable less-restrictive alternative 
is greater promotion and support of that alternative, not more 
burdensome content-based regulation. As Commissioner Adelstein notes, 
the FCC Report fails to explain why one should suppose that these 
voluntary technologies would be insufficient to serve parents' and 
children's interests if they were indeed properly publicized and 
supported. FCC Report at 32-33 (``Instead of rushing to conclude that . 
. . blocking technology does not adequately promote parental 
supervision and protect the well-being of children, the Commission has 
an obligation to advise Congress how we can attempt to improve their 
effectiveness. We fail to do so here.'').
    In Denver Area, for example, the government argued that cable 
``lockbox'' technology was not a sufficiently effective alternative 
because ``parents would have to discover that such devices exist,'' 
and, among other things, ``learn how to block undesired programs.'' 518 
U.S. at 758 (quoting government brief). The Court responded that this 
``list of practical difficulties would seem to call, not for'' more 
intrusive regulation, ``but, rather, for informational requirements, 
for a simple coding system, for readily available blocking equipment,'' 
and for other measures likely to increase effectiveness. Id. at 759. 
Similarly, in Playboy, the Court held that user-based blocking 
technology was a less restrictive alternative that rendered the statute 
at issue there unconstitutional, even though the evidence reflected 
that cable consumers had made ``few requests for household-by-household 
blocking.'' 529 U.S. at 816; id. (noting that ``fewer than 0.5 percent 
of cable subscribers requested full blocking''). Because the government 
had failed to show that blocking technology could not be effective ``if 
publicized in an adequate manner,'' the Court concluded that the 
challenged legislation was invalid. Id.; see also Ashcroft v. ACLU, 542 
U.S. at 669 (saying that Congress must ``enact[] programs to promote 
use of filtering software'' before declaring filtering software an 
ineffective alternative). Parental ignorance of less restrictive 
alternatives cannot justify content regulation.

        C. All of the FCC's proposals accordingly violate the First 
        Amendment.

    Applying the foregoing analysis shows that the particular proposals 
advanced by the FCC violate the First Amendment and would be struck 
down by the Supreme Court. In this section, I would like to highlight 
the most salient constitutional infirmities in each of the FCC's 
proposals.

           1. Time Channeling.

    The FCC Report's time channeling proposal would essentially ban 
``impermissibly violent'' television programming during specified 
times. None of the fatal constitutional objections elaborated in the 
preceding sections of this submission is avoided by confining that ban 
to a portion of the day or night.
    Vagueness: A prohibition that would be unconstitutionally vague if 
imposed around the clock loses none of its vagueness if imposed only 
during specified times. The vagueness doctrine would invalidate the 
prohibition during the times in which it was operative as a ban.
    Over-and under-inclusiveness: Every point made above about over- 
and under-inclusiveness remains fully valid when the prohibition is 
limited to stated times of day or night. The content- and viewpoint-
based character of a regulation that triggers a demand for strict 
scrutiny and accordingly for an exceedingly close fit is not diminished 
in the least by its time-limited character.\16\ United States v. 
Playboy Entm't Group, Inc., 529 U.S. 803, 812-13 (2000) (applying 
strict scrutiny to time channeling of indecent cable television because 
``[i]t is of no moment that the statute does not impose a complete 
prohibition''). Indeed, the ill-fitting character of time channeling is 
so egregious that it would have to be struck down under the First 
Amendment even if one were to ignore altogether its content- and 
viewpoint-based operation.
---------------------------------------------------------------------------
    \16\ Although at first blush the relegation of violent content to 
the midnight hours may seem like a time or manner restriction, such 
restrictions are content-neutral only if they ``are justified without 
reference to the content of the regulated speech.'' Ward v. Rock 
Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community 
for Creative Non-Violence, 468 U.S. 288, 293 (1984)). Here, by 
contrast, time-channeling legislation would almost certainly require 
television programming with violent content to be segregated to certain 
hours. Such identification of subject matter ``slips from the 
neutrality of time, place, and circumstance into a concern about 
content.'' Police Dept. of Chicago v. Mosley, 408 U.S. 92, 99 (1972) 
(internal quotation marks and citations omitted).
---------------------------------------------------------------------------
    Assuming for the sake of argument that young children are harmed by 
seeing certain kinds of violent television programming, and that 
avoiding this harm is a permissible governmental objective without 
regard to what a particular child's parents might believe, the fact 
would remain that time channeling responds to this concern far too 
broadly by denying such programming to vast swaths of the population 
that are not remotely the subjects of the government's concern. For 
example, nearly three-quarters of American television homes have no 
children under the age of twelve,\17\ yet time channeling would 
preclude everyone in those households from receiving violent television 
programming at all during times outside the safe harbor--even though 
those viewers are constitutionally entitled to receive that 
programming, and even though broadcasters and cablecasters are 
constitutionally entitled to transmit that programming to them. 
Moreover, even those households with children will have adults and 
older children whom the government cannot claim a compelling interest 
in protecting. Those viewers will also be denied programming to which 
they are constitutionally entitled. The inevitable effect of time 
channeling is that, during large segments of the day, available 
television programming would be limited to material deemed fit for 
minors. Even disregarding the constitutional objections to centralized 
determination of just what material meets that description, the First 
Amendment does not permit the free speech rights of adults and older 
children to be casualties to the government's paternalism toward the 
young.
---------------------------------------------------------------------------
    \17\ Nielsen Television Index, Universe Estimates 2007-2008.
---------------------------------------------------------------------------
    Less restrictive alternatives. Nor would the time-limited facet of 
a proposed regulation escape the fatal criticism that individualized 
parental controls remain a constitutionally preferred less restrictive 
alternative for achieving any of the law's child-focused objectives. 
The availability of such individually tailored parental technologies 
for child-rearing with respect to television viewing was central, for 
reasons already discussed, to the Supreme Court's decision in United 
States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000), to 
strike down a statute essentially requiring certain cable operators to 
time channel indecent content.
    In fact, in certain ways, the V-Chip and other blocking 
technologies are not only less restrictive but also significantly more 
effective than time channeling in empowering parents to control their 
children's viewing. As the Court explained in Playboy, blocking 
mechanisms enable parents to block programming deemed objectionable 
``at all times, even when they are not at home and even after 10 
p.m.''; by contrast, ``[t]ime channeling does not offer this 
assistance.'' 529 U.S. at 825.

           2. Mandatory Ratings System.

    The FCC Report recommends that Congress could also respond to 
televised violence by reforming the current voluntary ratings and 
blocking system. The most significant component of the proposal is the 
Report's suggestion that Congress implement an official mandatory 
ratings system that would require stations to display the 
governmentally defined ``appropriate'' rating for each program. FCC 
Report at 17. Such a mandatory ratings system would likewise violate 
the First Amendment for at least two reasons.
    First, the definitions and guidelines imposed by a mandatory 
ratings system would be inherently subjective, subject to arbitrary and 
inconsistent interpretation by authorities, and thus impermissibly 
vague. Mandatory ratings systems have been uniformly rejected by the 
Supreme Court under the vagueness doctrine because they vest so much 
power in whatever government body applies and enforces the ratings with 
fines or other punishments. Indeed, the Court is more vigilant about 
the ``vice of vagueness'' where ``expression is sought to be subjected 
to licensing,'' and that ``vice'' is just as dangerous where the 
``regulation of expression is one of classification''--i.e., mandatory 
ratings--``rather than direct suppression.'' Interstate Circuit, Inc.v. 
Dallas, 390 U.S. 676, 683, 688 (1968); see also Bantam Books, Inc.v. 
Sullivan, 372 U.S. 58, 72 (1963). Like a time-channeling solution, any 
mandatory ratings scheme would suffer from all the problems of 
subjectivity and vagueness described in Part II(A), above, and would be 
unconstitutional on those grounds alone.
    Second, a mandatory ratings system would impermissibly force 
broadcasters, cable/satellite operators, and other content providers to 
attach to their television programming a message stating a government 
viewpoint about that programming, thus ``[m]andating speech that a 
speaker would not otherwise make.'' Riley v. Nat'l Federation of the 
Blind of N. Carolina, Inc., 487 U.S. 781, 795 (1988). ``[L]eading First 
Amendment precedents have established the principle that freedom of 
speech prohibits the government from telling people what they must 
say.'' Rumsfeld v. FAIR, 126 S. Ct. 1297, 1308 (2006). ``[T]his general 
rule . . . applies not only to expressions of value, opinion, or 
endorsement, but equally to statements of fact the speaker would rather 
avoid.'' Hurley v. Irish-American Gay, Lesbian and Bisexual Group of 
Boston, 515 U.S. 557, 573 (1995). Applying this rule, a plurality of 
the Supreme Court in Pacific Gas & Elec. Co. v. Public Utility Comm'n, 
475 U.S. 1 (1986), struck down a regulation requiring a privately owned 
utility to include with its monthly bills a newsletter written by a 
consumer group critical of utilities. The plurality found that 
compelling the inclusion of this newsletter imposed an unconstitutional 
burden on the utility's speech, since the regulation ``impermissibly 
require[d] [the utility] to associate with speech with which [it] may 
disagree.'' Id. at 15. Similarly, in Hurley, the organizers of a St. 
Patrick's Day parade challenged a state statute that required the 
organizers to include a gay, lesbian, and bisexual group in the parade. 
A unanimous Supreme Court found this application of state anti-
discrimination law unconstitutional. After holding that ``[t]he 
selection of contingents to make a parade'' is protected expression, 
515 U.S. at 570, the Court held that, ``[s]ince every participating 
unit affects the message conveyed by the private organizers, the state 
courts' application of the statute produced an order essentially 
requiring petitioners to alter the expressive content of their 
parade.'' Id. at 572-73. Such a requirement violated ``the fundamental 
rule of protection under the First Amendment, that a speaker has the 
autonomy to choose the content of his own message.'' Id. at 573.
    A mandatory ratings system would contravene this rule by requiring 
television content providers to attach to their programs a government-
compelled message describing--and most likely evaluating--the programs' 
violent content. For example, content providers may be required to say 
that their program contains ``violence inappropriate for children under 
the age of 17,'' or ``violence appropriate for children only with 
adequate parental supervision,'' even if the content provider disagrees 
profoundly with the government's evaluation. Such mandatory ratings are 
no different from a government requirement that a television program 
promoting abstinence disclose that scientific studies show abstinence 
programs to be ineffective, or a requirement that a show on global 
warming say that there are still significant doubts about the science 
behind climate change. Because such compelled speech forces speakers to 
affirm and disseminate beliefs with which they may disagree, they are 
forbidden by the First Amendment.
    The FCC Report defends a mandatory ratings system by saying that 
``it merely requires the disclosure of truthful information about a 
potentially harmful product.'' FCC Report at 17. The Supreme Court has 
indeed recognized that, ``in commercial advertising,'' the government 
may require businesses to disseminate ``purely factual and 
uncontroversial information . . . so long as disclosure requirements 
are reasonably related to the State's interest in preventing deception 
of consumers.'' Zauderer v. Off. of Disciplinary Counsel for Sup. Ct. 
of Ohio, 471 U.S. 626, 651 (1985) (upholding state law requiring 
attorneys to disclose to contingent-fee clients that the clients may 
have to bear certain expenses even if they lose); see also Nat'l Elec. 
Mfrs. Ass'n v. Sorrell, 272 F.3d 104, 114-16 (2d Cir. 2001) (upholding 
state law requiring mercury labeling). But this narrow exception to the 
compelled-speech doctrine is inapplicable for two reasons.
    First, violence ratings most assuredly are not the sort of ``purely 
factual and uncontroversial information'' encompassed by this 
exception. At the very least, a rating represents a judgment about 
whether the program contains ``violence'' and, in all likelihood, a 
further judgment about whether that ``violence'' is ``gratuitous,'' 
``excessive,'' or ``harmful to children.'' These complex, highly 
subjective, and often controversial judgments cannot be passed off as 
simple factual statements and so do not fall under the Zauderer 
exception.\18\ Accordingly, the Seventh Circuit found Zauderer 
inapplicable to a mandatory labeling program for ``sexually explicit'' 
video games, since it found that such labels ``communicate[] a 
subjective and highly controversial message--that the game's content is 
sexually explicit.'' Entertainment Software Ass'n v. Blagojevich, 469 
F.3d 641, 652 (7th Cir. 2006).
---------------------------------------------------------------------------
    \18\ Part of the controversy is essentially descriptive and deals 
with how something is most accurately characterized. But another part 
is normative: do the benefits of informing the prospective ``consumer'' 
of speech about what that consumer will encounter outweigh the costs of 
lost surprise, often a key element in dramatic productions?
---------------------------------------------------------------------------
    Second, Zauderer has not been applied outside the commercial-speech 
context--where, as the Supreme Court has held, a lower standard of 
scrutiny may apply to speech that does ``no more than propose a 
commercial transaction,'' Pittsburgh Press Co. v. Pittsburgh Comm'n on 
Human Relations, 413 U.S. 376, 385 (1973)--but the vast majority of 
television programming to which mandatory ratings would be attached is 
not commercial speech. Television shows express ideas, they do not hawk 
wares.
    Because strict scrutiny applies here, the availability of less 
restrictive means for the government to achieve its ends--namely, the 
existing voluntary ratings system, and the growing arsenal of voluntary 
blocking technologies--weighs heavily against the permissibility of a 
mandatory ratings system. The FCC Report gives two reasons for finding 
these other means ineffective: first, parents do not understand the 
voluntary system; and second, the ratings are often inaccurate. FCC 
Report at 15. The first problem cannot justify avoiding a less 
restrictive means; under Playboy, as discussed above, the government 
can respond to parental ignorance with a publicity campaign. One 
possible model is a cross-industry public education campaign on 
parental controls and ratings, brought in 2006 by a wide spectrum of 
content creators and broadcast/cable/satellite operators, that utilized 
public service announcements and educational websites such as 
TheTVBoss.org. The government could easily engage in a similar campaign 
here--and, under the First Amendment, Congress must exhaust that option 
before turning to content regulation. The Seventh Circuit relied on 
this reasoning to strike down the state law in Blagojevich: although 
the state attempted to justify mandatory labels by arguing that the 
game industry's voluntary rating system was not widely understood, the 
court held that the state was required to adopt the less restrictive 
means of ``a broader educational campaign about the [voluntary] 
system.'' 469 F.3d at 652.
    The second asserted problem--allegedly inaccurate ratings--also 
cannot justify a more restrictive mandatory ratings system.\19\ For one 
thing, nothing about the centralized or governmentally dictated nature 
of a mandatory ratings system ensures that it will be more accurate--
and, indeed, the FCC Report acknowledges that a government-run ratings 
system might not improve on accuracy. FCC Report at 17. The FCC Report 
also does not explain why cooperation with the industry--or even 
encouraging alternative ratings from private institutions--could not 
increase the accuracy of ratings. Moreover, parents need not rely 
simply on published ratings to protect their children. As noted above, 
available technologies allow parents to block specific programs and 
specific channels based on their own viewing of the content, on 
descriptions of the shows in TV channel listings, or on descriptions 
from friends or other sources.
---------------------------------------------------------------------------
    \19\ There is considerable doubt, to say the least, about whether 
parents in fact perceive ratings to be inaccurate. The Kaiser Family 
Foundation Survey cited by the FCC, see FCC Report at 16-18, states 
that ``about half (52 percent) of those who have used the ratings 
saying that most shows are rated in a way that accurately reflects 
their content,'' and further notes that ``[t]he vast majority of 
parents who have used the TV ratings say they find them useful,'' 
Kaiser Family Foundation, Parents, Media and Public Policy, at 5 (Fall 
2004).
---------------------------------------------------------------------------
    Finally, even assuming that a mandatory ratings system would be 
considered content-neutral, it would still violate the First Amendment 
because it would not be narrowly tailored to the government's concerns. 
Rather than limiting the scope of its burdens to conveyers of violent 
television programming, a mandatory ratings system would compel speech 
from all speakers--even those who generate and distribute no violent 
content. For example, a content provider may be required to say that a 
program is ``appropriate for children,'' even if the provider is afraid 
that this description will unfairly (and inaccurately) cause viewers to 
believe that the program is white-washed, infantile, or of little 
interest to adults. Whatever the government's power to compel speech 
from providers of violent content, the First Amendment prohibits it 
from imposing such burdens on the free speech of other content 
providers who do not do anything remotely objectionable.

           3. Mandatory Unbundling.

    The FCC Report's final legislative proposal is for Congress to 
require cable and satellite operators to unbundle channels and to offer 
individual consumers the option to choose which channels they will 
receive. This unbundling could take one of two general forms. First, 
cable/satellite operators could provide consumers with a full slate of 
programming as a default, but empower consumers to ``opt out'' of any 
channels they do not wish to receive. Under this proposal, consumers 
either would not have to pay for opt-out channels, or would receive a 
refund for those channels. Alternatively, cable/satellite operators 
could reserve certain channels (such as those with violent content) or 
all channels (as in a complete a la carte regime) and require 
subscribers to ``opt in'' to those specific channels that they wish to 
receive. Both of these mandatory unbundling alternatives fail strict 
scrutiny.

              a. First Amendment strict scrutiny applies to mandatory 
        unbundling.

    It is tempting to think of any unbundling requirement as a purely 
economic restriction not based on speech, but that view is flatly 
incorrect. Any unbundling requirement would be a speech-based and even 
a content-based regulation subject to strict scrutiny. The Supreme 
Court has recognized that ``[c]able programmers and cable operators 
engage in and transmit speech, and they are entitled to the protection 
of the speech and press provisions of the First Amendment.'' Turner 
Broadcasting Sys., Inc. v. FCC, 518 U.S. 622, 636 (1994). ``[T]hrough 
original programming or by exercising editorial discretion over which 
stations or programs to include in its repertoire, [cable/satellite 
operators] seek[] to communicate messages on a wide variety of topics 
and in a wide variety of formats.'' Los Angeles v. Preferred Commc'ns, 
Inc., 476 U.S. 488, 494 (1986); see also Hurley, 575 U.S. at 570 
(``Cable operators . . . are engaged in protected speech activities 
even when they only select programming originally produced by 
others.''). More specifically, Turner recognized that requiring cable 
operators to bundle certain channels against their will ``interfere[d] 
with [their] editorial discretion.'' 512 U.S. at 643-44. Forbidding 
them from bundling certain channels--especially if the decision is 
driven by the content of those channels--would have a similar effect: 
an operator's decision to include particular channels is at least as 
expressive as its decision to exclude others. Hurley, 575 U.S. at 570 
(holding that ``[t]he selection of contingents to make a parade'' is 
First Amendment speech).
    In this regard, cable/satellite providers are no different from 
other speakers. A decision to combine or package expressive materials 
is a speech act distinct from the decisions to distribute its 
individual components, separately considered. For example, Tim 
O'Brien's The Things They Carried is ostensibly a collection of 
vignettes about the Vietnam War, each of which can be read and 
understood separately. Together, however, their cumulative effect is a 
devastating exploration of the effects of combat on young soldiers. 
Unlike a disaggregated set, a combination of materials allows direct 
comparisons between the individual pieces; it allows meaning to be 
created through repetition and parallelism; and it allows expression 
that derives from the very act of combination or juxtaposition. It 
makes no difference that--as some people undoubtedly believe--no 
distinct message can be attributed to cable/satellite providers' 
aggregation of channels. ``[A] narrow, succinctly articulable message 
is not a condition of constitutional protection.'' Hurley, 515 U.S. at 
569-70. Otherwise, Congress could force newspapers to distribute by the 
section and forbid recording companies from packaging different songs, 
artists, albums, or genres into a single compilation. Nor does it make 
a difference that cable operators combine not just their own content 
but also content provided by others. Speakers often speak by invoking 
the words of others, but doing so does not jeopardize their First 
Amendment rights. See Hurley, 515 U.S. at 570 (noting that newspaper 
editorial pages, like parades, are also ``compilation[s] of speech 
generated by other persons'').
    It is true that in Turner, the Supreme Court applied only 
intermediate scrutiny--a standard lower than strict scrutiny--to uphold 
the must-carry provisions of the Cable Television Consumer Protection 
and Competition Act of 1992, which required cable operators to carry 
the signals of certain local broadcast stations. But for a number of 
reasons the must-carry provisions are distinguishable from the 
unbundling proposed by the FCC Report.
    First, the Supreme Court applied intermediate scrutiny in Turner 
because it found that the must-carry provisions were imposed ``without 
reference to the content of speech''; not only was the statute content-
neutral on its face, but Congress's manifest purpose was simply to 
``preserve access to free television programming.'' 512 U.S. at 643, 
646. The various unbundling schemes proposed by the FCC Report and by 
earlier studies are quite different. Some past unbundling proposals 
have suggested requiring ``themed tiers''; i.e., each bundle of 
channels would be defined by a certain type of content, such as 
``sports,'' ``news,'' or--for our purposes--``violent content.'' 
Legislation mandating such unbundling would be content-based on its 
face--since it would expressly premise cable/satellite operators' 
obligations upon the content of the channels they carried--and thus 
would be subject to strict scrutiny.
    Even if the relevant bundles are defined in a content-neutral way, 
the purpose behind requiring bundling would render the law content-
based. The FCC Report expressly recommends unbundling as a way to 
reduce the availability of violent television programming. FCC Report 
at 21. This purpose requires evaluating even ostensibly content-neutral 
unbundling under strict scrutiny. ``[E]ven a regulation neutral on its 
face may be content-based if its manifest purpose is to regulate speech 
because of the message it conveys.'' Turner, 512 U.S. at 645. This is 
not to say that troublesome motives expressed by individual Members of 
Congress can serve to invalidate a statute under the First Amendment if 
the statute is content-neutral on its face and serves content-neutral 
ends. See United States v. O'Brien, 391 U.S. 367, 382-83 (1968). But 
when the ``asserted interest'' offered to justify a specifically 
speech-burdening regulation is itself related to the suppression of 
that speech--as is the case here--strict scrutiny is appropriate even 
for facially content-neutral laws. See United States v. Eichman, 496 
U.S. 310, 315 (1990) (striking down flag-burning statute when 
Congress's purpose was to suppress that form of expression).
    Second, the Court in Turner found that requiring the bundling of 
broadcast channels would not ``force cable operators to alter their own 
messages'' because ``there appears little risk that cable viewers would 
assume that the broadcast stations carried on a cable system convey 
ideas or messages endorsed by the cable operator.'' Id. at 655. 
Mandatory unbundling, however, raises distinct concerns because it 
directly intrudes upon a cable operator's speech by precluding speech 
achievable only by combining channels. For example, a cable operator 
may wish to provide a public service by bundling C-SPAN or local 
public-access channels with more popular fare such as ESPN. Similarly, 
a cable operator's decision to include adult channels--as much as 
another operator's decision to exclude those channels--is an exercise 
of its core editorial discretion. Although the must-carry provisions at 
issue in Turner did not block this type of editorial control, 
unbundling legislation would. Mandatory unbundling also interferes with 
the speech rights of content providers in ways that the mandatory 
bundling in Turner did not. If cable/satellite operators are forbidden 
from transmitting certain content in a bundle, then content providers 
are concomitantly forbidden from offering that content in combination: 
e.g,, a media company that wants to package a family-friendly channel 
(which contains no violent programming) with a sports channel or a 
young adult channel (both of which contain some violent programming). 
By contrast, the must-carry provisions in Turner did not prevent 
content providers from packaging their products in this manner.
    Finally, Turner relied in part on the special nature of the cable 
industry at the point in time when the opinion was decided. But the 
fact that cable providers bundle content does not in any way 
distinguish them from other forms of media. Bundles are ubiquitous in 
the marketplace of ideas, as in every other marketplace: musicians 
package songs into albums (including ``greatest hit'' albums that have 
no central theme or concept); authors collect volumes of short stories 
or essays; and newspapers include multiple unrelated sections (not to 
mention hundreds of unrelated articles) in a single issue. Many 
consumers would undoubtedly prefer to purchase such items piecemeal--
and, under certain circumstances, the market has responded to give them 
that option, as with the iTunes Store--but a la carte consumption is 
hardly the rule, and I am aware of no law requiring these other forms 
of media to distribute their speech piece by piece. Moreover, no 
``monopoly power'' possessed by cable providers distinguishes them from 
other forms of media. In many areas, for example, the realities of the 
marketplace allow only one newspaper to operate--but nobody proposes 
requiring such newspapers to sell their issues article by article, or 
section by section. Thus, imposing an unbundling requirement on cable 
providers would burden their editorial discretion through a regulatory 
regime to which no other medium is subject, even though the reasons for 
imposing unbundling rely upon no distinctive feature of cable. Absent a 
``special characteristic'' that would justify differential treatment, 
``[r]egulations that discriminate among media . . . often present 
serious First Amendment concerns'' and are generally subject to strict 
scrutiny. Turner, 512 U.S. at 659-60.

              b. The First Amendment scrutiny of unbundling is 
        unaffected by the involvement of money.

    Proponents of mandatory unbundling have at times suggested that 
unbundling can avoid strict scrutiny so long as it is only focused on 
the compensation that cable/satellite operators can hope to receive, 
rather than the content that they are empowered to convey. Thus, for 
instance, an opt-out unbundling program would allow cable/satellite 
operators to provide bundles however they saw fit, but it would 
simultaneously obligate them to return a portion of a consumer's 
subscription costs if the consumer decided to opt out of receiving 
certain channels.
    Such a proposal cannot escape strict scrutiny. The freedom to speak 
is inseparable from the freedom to decide whether to charge for that 
speech or, instead, to distribute it without financial remuneration. To 
put the point another way, ``freedom of speech'' encompasses not only 
the right to make one's speech available without charge; it encompasses 
as well the right to decide for oneself whether to seek financial gain 
from one's speech by offering it at a price, or instead to provide 
one's own speech free of charge. This principle recognizes that, given 
the necessities of speakers' lives and business operations, speech will 
often be stillborn as a practical matter absent the concomitant 
opportunity to profit from speaking. Granting government the power to 
control compensation for specific types of speech would let the 
government drive speech from the marketplace--and hence from the public 
sphere--by removing one of the principal enablers for speaking or 
publishing. In this sense, one's right to profit from speech is similar 
to one's right to seek financial reward for one's labor, as protected 
by the Thirteenth Amendment's prohibition on slavery, or to use one's 
private property for financial gain, as protected by the Takings and 
Due Process Clauses of the Fifth and Fourteenth Amendments. The right 
to speak--or work, or own property--would be altogether hollow if the 
government could force people to give up any hope of compensation when 
engaging in these constitutionally protected activities.
    The Supreme Court has recognized these basic principles. In New 
York Times v. Sullivan, 376 U.S. 254, 266 (1964), the Court held that 
the First Amendment fully protected statements made in a commercial 
advertisement in The New York Times, even though the Times had been 
paid to publish that advertisement. Subsequent cases have directly 
recognized that the First Amendment protects the right to profit from 
speech as much as it protects the right to speak at all. For example, 
in Simon & Schuster, Inc. v. Members of New York State Crime Victims, 
502 U.S. 105 (1991), the Supreme Court found ``presumptively 
inconsistent with the First Amendment'' a state statute that denied 
accused or convicted criminals the income from works describing their 
crimes. Id. at 115. Similarly, in United States v. National Treasury 
Employees Union, 513 U.S. 454 (1995), the Court struck down a Federal 
law forbidding certain Federal employees from accepting payment for 
speech unrelated to their employment. Nor should any of this seem 
surprising. After all, the First Amendment is most commonly invoked, 
not by uncompensated pamphleteers, but by the publishing industry and 
by journalists and authors who are paid for what they write and 
distribute.
    Like the laws struck down in these cases, an unbundling requirement 
would operate to bar cable/satellite operators and content providers 
from deriving income from speech whose content is composed of bundles 
of distinct channels. Congress can no more impose such a burden than it 
could mandate that newspapers refund subscribers for any portion of the 
paper that they do not wish to receive, or require musicians to refund 
their fans for any songs on an album that they dislike. Because the 
ability to profit from speech is joined at the hip with the production 
of speech, regulations of such income abridge First Amendment rights. 
See McConnell v. FEC, 540 U.S. 93, 251 (2003) (Scalia, J., concurring) 
(``The right to speak would be largely ineffective if it did not 
include the right to engage in financial transactions that are the 
incidents of its exercise.'').
    Some proposals have suggested that the government implement an 
unbundling requirement not by directly requiring unbundling but by 
withholding certain government benefits--such as approval of certain 
changes in media ownership--from cable/satellite operators who do not 
unbundle. Such a strategy would impose unconstitutional conditions on 
the exercise of operators' First Amendment rights to bundle content and 
to charge for that bundling. ``[C]onditions upon public benefits cannot 
be sustained if they so operate, whatever their purpose, as to inhibit 
or deter the exercise of First Amendment freedoms.'' Sherbert v. 
Verner, 374 U.S. 398, 405 (1963). In Speiser v. Randall, 357 U.S. 513 
(1958), for example, the Supreme Court held that the government could 
not condition a tax exemption on an individual's agreement not to 
advocate the overthrow of the government. ``To deny an exemption to 
claimants who engage in certain forms of speech is in effect to 
penalize them for such speech. Its deterrent effect is the same as if 
the State were to fine them for this speech.'' Id. at 518. The 
withholding of government benefits to discourage First Amendment speech 
is no different from and no more constitutional than the direct 
impediment of that speech.

              c. Unbundling's burdens on First Amendment rights cannot 
        be justified.

    The burdens imposed by an unbundling requirement cannot be 
justified by the government's alleged interest in protecting children 
from televised violence. Indeed, unbundling is a singularly ineffective 
tool for achieving this end. For unbundling to be even arguably 
effective at shielding children from televised violence, violent 
content and non-violent content would have to be segregated into 
different channels. But they are not: as the broad examples given by 
groups like the Parents Television Council show, material which has 
been criticized as objectionably violent can be found on almost all 
cable/satellite channels, in the form of police procedurals, medical 
dramas, science fiction, physical comedy and cartoons, music videos, 
movies, and much else. Moreover, because an unbundling requirement 
would apply only to cable/satellite programming, it would leave 
untouched the many other media avenues by which children can become 
exposed to violent content--most prominently, the Internet. Thus, 
unbundling cannot effectively address the government's purported 
interest in limiting children's access to violent content.
    Even if unbundling were effective, it would still impose an 
unjustifiable burden on First Amendment rights in light of better 
tailored and less restrictive means for the government to achieve its 
goals. In Denver Area, the Supreme Court specifically recognized the 
existence of such ``significantly less restrictive'' alternatives--
including the V-chip--in striking down the unbundling statute at issue 
in that case, 518 U.S. at 756, and I have already highlighted the ever-
increasing number of ways that parents can protect their children. By 
contrast, an unbundling requirement would impose restrictions on all 
channels and all cable/satellite operators, whether or not they 
contained or transmitted violent content. In light of less restrictive 
alternatives that are readily available, the First Amendment does not 
permit unbundling as a response to violent television programming.
    As an economic matter, bundling allows at least some cable/
satellite providers to promote new channels that have yet to find an 
audience and to support niche channels that have a devoted but 
numerically insignificant following. In this way, many believe, cable/
satellite providers can ensure the continued existence of channels that 
would not, by themselves, justify their costs. This type of cross-
subsidization and cross-marketing is common: magazines such as Vanity 
Fair use glossy spreads to support in-depth reporting; many newspapers 
undoubtedly rely on the greater popularity of sections such as sports 
and entertainment to prop up less popular sections; and musicians 
invariably leverage popular singles into sales for more obscure songs 
on their albums. From the perspective of some cable/satellite 
providers, being forced to unbundle would spell an end to their ability 
to engage in these salutary practices, potentially dooming untested or 
niche channels even if those channels contain no content that is in the 
least objectionable.
    But the validity of this economic argument is beside the point of 
my First Amendment analysis. The crucial focus, rather, is on who 
decides whether and when to unbundle--on who chooses whether to link 
Content A with Content B in the marketplace of ideas, information, and 
expression. It is not simply the fact that unbundling might reduce the 
quantity and diversity of speech that puts mandatory unbundling on a 
collision course with the First Amendment. Even if, on balance, 
unbundling could be shown to increase that quantity and diversity, it 
is emphatically the centralized governmental compulsion to unbundle 
that the First Amendment forbids when, as here, there is no close fit 
to a compelling governmental objective. And this prohibition is 
underscored, not ameliorated, by the undeniable circumstance that this 
centralized determination is being driven in large part by a viewpoint-
discriminatory and paternalistic concern with expressive content, 
rather than by content-neutral economic considerations, as in the case 
of the anti-tying prohibitions of the antitrust laws. The First 
Amendment does not tolerate such a legislated shift from individualized 
determination of proper expression. Any regulation of television 
content must recognize that our system of government rightfully places 
this determination in the hands of individual families and parents, not 
those of Big Brother.
IV. Appendix
    The Ad Hoc Media Coalition Motion Picture Association of America, 
National Association of Broadcasters, National Cable & 
Telecommunications Association, ABC, Inc., CBS Corporation, Fox 
Entertainment Group, NBC Universal, Inc./NBC Telemundo License Co.

    Senator Rockefeller. Thank you, Mr. Tribe.
    It's interesting, because I've heard these comments so 
often, for so many years, ``Let's figure out a way to do this 
fairly, let's get the industry cooperating, let's''--I, myself, 
thought that Jack Valenti's $250 million advertising program 
was a gigantic joke, because it does nothing, it means nothing. 
Mailings to parents mean nothing. If parents don't have V-Chip 
equipment on their pre-2000 television set, it means nothing. 
If parents do have that, but, themselves, are watching the 
program, because they choose to, and their children are 
watching with them, all of this means nothing.
    So, to me, as always, the question is, if you simply find a 
way to cause the media to not put this content on, to the 
extent that they do, that solves the problem, solves all of the 
problem. But they won't do that, because they can't do that, 
because they have sweeps, they've got to make money, they're in 
desperate competition, there are too many of them in the first 
place, you know, one almost doesn't watch television anymore, 
because there is such a proliferation.
    In any event, I do think that there is a solution for this, 
and I do think that just saying, ``We've got to teach the 
parents how to do better,'' is a real cop-out. I don't argue 
that it's very--it's extremely important. I'm just saying that 
there are many, many parents who don't do that, or who do have 
double jobs, who don't get home on time, and--so that the tenor 
of most of this has been we've been through this for a very 
long time now, without any improvement.
    And I'll just say, for the entire panel, excluding you, Mr. 
Tribe, what you said, Mr. McIntyre, and that is the U.S. 
Surgeon General--I guess it was you, Dr. Kunkel--or, I guess it 
was you, Mr. Winter--the American Academy of Pediatrics, the 
American Psychological Association, and the American Medical 
Association, virtually every other leading medical scientific 
organization that has studied this issue have reached the same 
conclusion about the harmful impact of media violence on our 
children. Is there anyone on the panel who disagrees with this 
conclusion, that excessive and graphic violence is harmful to 
children?
    I'm asking for a yes-or-no answer.
    Mr. Liguori. Sir, the research, again, as the Government 
has----
    Senator Rockefeller. I'm asking for a yes-or-no answer.
    Mr. Liguori. No.
    Senator Rockefeller. Others?
    [No response.]
    Senator Rockefeller. All right. I believe the entertainment 
industry could change what we watch on television, but it 
chooses to--this is a general question for the panel--chooses 
to sell sex and violence instead. I reject the notion that 
television merely reflects our society, the appetites that 
Senator Lautenberg was referring to, but, rather, I believe 
that television can and should be something of a positive 
force--a productive force. If television merely reflects 
society, it would appear that our own society consists of 
nothing but sexually promiscuous 20-year-olds and serial 
killers. I know that this statement is an exaggeration, but 
it's not far off from the overwhelming majority of prime-time 
shows, in my view.
    So, my question is, does anyone wish to comment on this 
statement? I would like to understand the process that networks 
and other content producers use to determine what goes on the 
air, and why more family oriented programming is not given a 
chance to build an audience.
    I guess that would go to you, wouldn't it?
    Mr. Liguori. Yes, it would.
    First of all, let's discuss the process by which 
programming reaches our air. We, at FOX--and so do my other 
network heads--have broadcast standards departments. Again, 
when a show is submitted, we, at the initiation of that show, 
from script to shooting script to rough cut to revision to 
final version, put those shows through our broadcast standards 
systems. Those broadcast standards look both at what the 
industry is doing, as well as our own internal standards. From 
that point, what we do is rate that show and make sure that 
that rating is in place for parents to decide what is 
appropriate and not appropriate for their homes.
    Second, beyond the prima facie rating of TV-G, TV-PG, TV-
14, we also look to have descriptors, which further a parent's 
understanding as to why that show is rated. Now, we in the 
industry are taking a--yet another look at how to create more 
consistency of those descriptors and enrich those descriptors. 
We, at FOX, tend to be fairly generous with it.
    When you have a show like ``24''--which, again, we want to 
absolutely make sure parents know what type of programming 
they're going to get--we start that show off with a 4-second 
full-screen advisory, our star reads that advisory, it's 
followed by a 15-second bug, and then, coming out of each 
commercial break, we put that ratings bug up again. So, again, 
there is a system, and there is information that--we make sure 
they both are in place so parents can make an informed decision 
as to what shows are appropriate for their family.
    Senator Rockefeller. My time is up.
    Vice Chairman Stevens?
    Senator Stevens. Well, thank you very much, Mr. Chairman.
    You know, Mr. Winter, I've met Mr. Spielberg, and I 
appreciate what you said, but we have to keep in mind that the 
``Band of Brothers'' was banned from being shown on television. 
I think there are--sometimes people go to extremes. I certainly 
believe that a historical movie such as that is something that 
young children should see, but, beyond that----
    Mr. Tribe, where do we go, have you heard, and I'm sure you 
know, that the tremendous pressures that we all feel about this 
subject of trying to provide protection. We've tried to do it 
from a point of view of the time of day. We had a--``8 o'clock 
in the morning until 9 o'clock at night'' concept that we were 
looking at, in terms of content, and having other content be 
more permissible after 9 p.m. Does that cross the lines of 
constitutionality, to you?
    Mr. Tribe. I'm afraid it does, Senator Stevens. It just 
means, first of all, that there is an absolute ban, except 
during a certain time. That is, time channeling that provides a 
safe harbor doesn't solve the problem of vagueness, it doesn't 
solve the problem of viewpoint discrimination, it doesn't solve 
the problem that, at other times, adults are being reduced to 
what is appropriate for children, it doesn't solve the problem 
that the Supreme Court will strike it down, because it has said 
that segregating indecent sexual programming to a certain time 
is a kind of absolute ban on one slice of time. So, although 
time channeling is tempting, it's only voluntary, industry-
based, parent-organization-based or nongovernmental-
organization-based solutions that are going to pass muster.
    Senator Stevens. Well, if that one scene, where that 
policeman was having the act performed from--was done on the 
corner of Fifth Avenue in New York, that could be punished for 
being a lewd and lascivious act in public, right?
    Mr. Tribe. Well, in fact, that scene was probably 
``obscene'' by the Supreme Court's standards. But that is a 
very different regime of applicable law. Under decisions like 
Miller v. California and Paris Adult Theatre, obscene, 
explicit, graphic depictions of sexual acts that are patently 
offensive and lack any serious scientific or literary merit are 
unprotected speech. But ever since 1948, the Supreme Court has 
made clear that violence and obscenity are very different. 
Violence--of the sort that we see every night in coverage about 
the war in Iraq--is pervasive in public display and literature 
throughout history, and the attempt to use the violent element, 
as opposed to the sexual element, as a basis for either 
prohibition or time channeling or segregation onto particular 
slices of the spectrum or particular channels is just not going 
to wash with the Supreme Court.
    Senator Stevens. Well, is there--is it possible at all to 
draw a constitutionally safe line, in terms of what we're 
dealing with here today?
    Mr. Tribe. I think, in terms of defining ``violence,'' 
there is no safe line that can be drawn, other than empowering 
parents.
    Senator Stevens. Well, could we----
    Mr. Tribe. I don't think it's a coincidence----
    Senator Stevens.--could we empower parents to have a 
special suit against any entity that displayed something like 
that, that we saw? That is--that is within the Supreme Court's 
definition of really ``obscene'' and ``lewd and lascivious.'' 
Can't--could we give parents more protection by individual 
right of action against them?
    Mr. Tribe. If it's obscene by the Court's definition, and 
not protected speech, you could certainly give parents the 
right to sue.
    Senator Stevens. Is that protected speech?
    Mr. Tribe. I think, probably not.
    Senator Stevens. Yes, so do I.
    Mr. Tribe. But an awful lot of grotesque, violent stuff is 
not obscene or sexual, and it's something that we can try to 
protect our kids from and that we can encourage people not to 
produce. Senator Rockefeller, before he left, said, ``This 
whole problem could just be solved if we'd go to the source and 
we don't produce it.'' But, as you pointed out, Senator, when 
it's pervasively produced throughout the world--available on 
the Internet, available to be downloaded on iPods, available in 
video games--the idea that we can simply wipe it out at the 
source is, I think, an illusion, and we fool ourselves if we 
don't admit that the reason we've struggled with these problems 
for so long without making more than incremental headway is 
that they are fundamentally intractable to government 
resolution. These are problems of deficient and inadequate 
parenting, and I'm not talking about blaming parents, I'm 
talking about doing whatever we can to empower them.
    When Senator Rockefeller says, ``Well, some parents have 
televisions that were made before the year 2000, they don't 
have the V-Chip,'' well, that's a self-limiting problem. It's 
going to go away. It's a diminishing percentage of----
    Senator Stevens. Well, my----
    Mr. Tribe.--televisions.
    Senator Stevens.--time's up, Professor.
    Let me just give you an example. I took my youngest 
daughter to a movie one Saturday afternoon, to see a Western 
movie that I thought would be perfectly acceptable. She sat 
there about 20 minutes and said, ``Dad, I'm going home.'' 
Someone had called a woman in that show a whore, and she said, 
``I'm not going to listen to something like that.'' So, we got 
up and left. Now, I would say that came from her mother's 
influence, obviously, and it's the proper way to get the 
discipline into the young people, is through the influence of 
parents. Would you agree?
    Mr. Tribe. I agree, that's admirable parenting, Senator.
    Senator Stevens. Thank you.
    Thank you.
    [Laughter.]
    Senator Stevens. One parent was wrong, right?
    [Laughter.]
    Senator Rockefeller. Senator Lautenberg?
    Senator Lautenberg. Yes, turn back the clock, so we can 
have an even start, please. Thank you.
    Mr. Winter, have there been any studies on the effect on 
children of violent news--the war--as opposed to violent 
entertainment? Are you aware of any?
    Mr. Winter. Not to my knowledge, Senator. I would have to 
defer to those scientists here on the panel.
    Senator Lautenberg. Anybody--Dr. Kunkel?
    Dr. Kunkel. Yes, there certainly have, and they pose risks 
of harm from--children's exposure to those types of portrayals, 
as well.
    Senator Lautenberg. How would we control--would it be 
suggested that we can control that kind of thing?
    Dr. Kunkel. I think it's a challenge to craft measures that 
address the type of concerns raised by----
    Senator Lautenberg. So----
    Dr. Kunkel.--TV violence. But I must say----
    Senator Lautenberg. OK.
    Dr. Kunkel.--that I'm troubled--in Professor Tribe's 
statement, you are----
    Senator Lautenberg. Well----
    Dr. Kunkel.--you receive one perspective, and that is the 
legal challenges that are posed in crafting a----
    Senator Lautenberg. Well, we're----
    Dr. Kunkel.--regulatory solution.
    Senator Lautenberg. You're getting me into a discussion 
that you may want to have with Dr. Tribe when you have a 
moment.
    Dr. Kunkel. It's a central issue----
    Senator Lautenberg. He's a----
    Dr. Kunkel.--for this Committee----
    Senator Lautenberg.--distinguished----
    Dr. Kunkel.--to confront the harm----
    Senator Lautenberg.--legal scholar, and I sometimes call 
him for advice, not related to this subject, but constitutional 
matters, and I appreciate----
    Let me ask you this, any one of you. Is wrestling 
considered tea and crumpets in our society, or is wrestling a 
form of violent exercise that attracts more and more and more 
audiences all the time? I was more of a sports fan in an 
earlier life than I am now, but when they took the gloves off 
hockey, hockey became a more popular sport. And we see evidence 
of violence, even in this place. Even in this place. If you 
check the language, the vituperation and so forth, it is a form 
of violence. How about violence in the homes? Do you know, I 
wrote a law that banned spousal abusers from getting gun 
permits. I had to sneak it through on a piece of must-carry 
legislation. It wouldn't have stood there on its own. 150,000 
permits have been denied since 1996, when I wrote that law. 
Now, we know very well that the incidence of murder and harm is 
much greater in a house where there is a gun available. And 
yet, the NRA controls so much of the thinking that we go 
through in this House--we can't pass sensible gun legislation, 
because we dishonor those, purportedly under the Second 
Amendment. And so, honestly, my friends, if I look a little 
enraged, I hate that kind of stuff that we just saw, that evil 
stuff, that viewing. And I don't want my grandchildren to be 
subjected to that, and I don't want anybody's grandchildren to 
be subjected to that stuff.
    But don't we, in a way, in--the way we conduct things, set 
an example that isn't true at all, and increases, I think, 
violent attitudes between one another? We took away a mentoring 
program that I had introduced. It was so good. An hour or two a 
week, at the most, mentor a child, talk to him, pat him on the 
head, say it's good--it leads to remarkable behavioral changes. 
And it was done away with due to--budget reductions.
    So, when I asked, What can we do? Is there a constitutional 
way to regulate violent entertainment while protecting the 
independence of news organizations? Dr. Tribe, is there any way 
that you can think of that would do that?
    Mr. Tribe. Senator Lautenberg, I hate repeating myself. The 
only way that I know, under the Constitution, is to look at 
what it is that prevents kids from getting better supervision 
by their parents, which is not necessarily a national 
responsibility, but often a State and local one, and often a 
matter of an inadequate economic base. If you asked me whether 
I believe that funding some program for patting a little kid on 
the head will do more good in the long run in terms of violence 
than grandstanding on this subject or more good than passing a 
law that then is struck down so you can point at the courts and 
say it's their fault, then yes, I think it would do more good 
to spend a little money on programs that are designed to 
substitute when the kid doesn't have good parenting at home.
    Senator Lautenberg. It's amazing how neglectful parents are 
when they're poverty stricken and out to try and get a job, so 
that they can't sit and regulate the programs, or supervise the 
programs that their children are watching.
    Mr. Chairman, thanks for conducting this hearing.
    Senator Rockefeller. Thank you, Senator Lautenberg.
    Senator Klobuchar?
    Senator Klobuchar. Thank you very much, Mr. Chairman.
    Thank you, witnesses.
    Mr. Liguori, you talked about your TV rating system, that 
there are proposals that you're considering, to make it better. 
Could you discuss those?
    Mr. Liguori. Yes, I can. And I actually thank Mr. Winter 
for actually citing an example of where the industry needs to 
do better; namely, I think it was the ``NCIS'' show that failed 
to have the rating. Look, it does seem fairly obvious that that 
was a pretty good example of a show that required a V rating. 
Again, the goal of the rating is twofold. One, very simply, on 
its face, if one were to see a TV-G, TV-PG, TV-7 or TV-14, that 
they should immediately--a parent should immediately know that 
that may not be appropriate programming for their child. And, 
when one programs their V-Chip or their cable or satellite 
controls, those ratings are, in fact, easy to set your TV to.
    The second level is descriptors. We should have a--as 
consistent as possible, given the difficulties in defining 
``violence''--but, nonetheless,--in a preventative measure, it 
is a little easier to say, ``Yes, this show has a depiction of 
violence or sexual content or, potentially, aggressive dialogue 
or language.'' And those descriptors would be attached to that 
rating, so, in fact, there is an explanation.
    It also serves as a second filter for parents to block. You 
could block one of two ways. You could block via ratings, or 
you could block via descriptors. And so, again, it serves not 
only as an informational tool, but as a blocking tool, so that 
parents could deem what is and isn't appropriate for their 
particular family.
    Senator Klobuchar. You know, Senator Rockefeller was asking 
about the ad campaign, the PSA campaign, and I think I saw some 
polls showing it hadn't really increased V-Chip use. Do you 
dispute that? And can you think of other ways to----
    Mr. Liguori. Well----
    Senator Klobuchar.--change this?
    Mr. Liguori.--this is--this is where we're at with the ad 
campaign. Currently, we've spent about $146 million of the $300 
million that Mr. Valenti raised. A couple of key facts. First, 
there is 77 percent awareness of this--of these PSAs. And, just 
by way of example, when we, at FOX, and some of the--of our 
other networks, were to look at awareness of a PSA--typically 
awareness of a PSA is anywhere between 50 and 55 percent--the 
Ad Council would agree that 77 percent is astounding--really 
effective awareness of the campaign.
    Now, there are some preliminary results that show that the 
campaign is beginning to take effect. Early indications show 
that parents have gone from a benchmark of 79 percent saying 
they have a lot of control over their kids' use of TV, to 
almost 85 percent. When you look at total control, it's gone up 
from about 25 percent to about 30 percent. So, in fact, the 
campaign, which is just about halfway through, is, in fact, 
starting to take root.
    Senator Klobuchar. Was there some Zogby poll--maybe I'll 
ask Mr. Winter to comment, though--that just showed--and I want 
this to work, and, obviously, I think the other issue, of 
course, is, there are some parents that are just not going to 
be able to have the time to deal with all this technology, and 
I hope we can find ways to do it more simply. But I think there 
was some poll that just showed it had gone up 1 percent, or 
something like that.
    Mr. Winter. Yes, Senator, it did not move outside of the 
margin of error of the study, over the course of several 
months--actually, 9 months.
    Senator Klobuchar. So, are you hopeful that, when the 
campaign gets completed, we'll see a change? I'm just looking 
at ways for the parents that aren't going to be able to do this 
and have the time and resources to figure it out--this is to 
Mr. Liguori--that we're going to see better increases in the 
use of the V-Chip. But then, for these other parents, that I 
saw a lot when I was a prosecutor, who were just in poverty, it 
was difficult for them, their kids were home alone after 
school, they didn't have the resources--just what we're going 
to do to try to protect those kids is what I'm looking at, and 
I'm trying to find something that's constitutional, but that 
also is--and maybe with some new technology. And that's what I 
want to hear about some ideas here.
    Anything more you have, Mr. Liguori? I have 36 seconds 
left.
    Mr. Liguori. Well, first of all, I share your hope. And, 
second, again, further education is probably the single best 
step that we can take here. We want to continually make sure 
that parents have aware--are aware of the controls that are 
available to them.
    And, look, I also think, partly, we should be applauding 
some parents here. There are many, many parents who are 
monitoring their kids' TV use. Seventy-three percent of parents 
monitor their kids' TV use, 84 percent of parents with kids 
under 10 monitor their children's TV use. It's not 100 percent. 
My goal would be to get it to be 100 percent. But I don't think 
we can discount the most widely used and effective method 
available: parents themselves.
    Senator Klobuchar. Thank you.
    Senator Rockefeller. Senator Dorgan?

              STATEMENT OF HON. BYRON L. DORGAN, 
                 U.S. SENATOR FROM NORTH DAKOTA

    Senator Dorgan. Mr. Chairman, thank you very much.
    Mr. Tribe, I, frankly, wasn't pleased with the implication 
of your suggesting that what this Committee is doing is, quote, 
``grandstanding.'' Senator Rockefeller has brought to this 
Committee, I think, a serious issue.
    Let me read to you what I wrote 8 years ago, in 1999. 
Senator Hollings, myself, and others were engaged in this issue 
then. Since that time, this problem has gotten worse.
    Let me quote what was in the letter. ``We recognize parents 
bear the primary responsibility for monitoring their child's 
entertainment and television viewing, but television executives 
must also bear some of the responsibility for the programs they 
produce and promote. We're not asking them to replace parents, 
but, rather, to help parents, to make their job a bit easier by 
reducing the amount of violence, sex, and language in 
television shows.'' We suggested the reinstating of the family 
hour, which you have talked about.
    You know, look, in this country, there is no accounting for 
bad taste. I turn on television, don't leave it on long, when I 
see someone eating a bowl of maggots in some reality television 
show, apparently for entertainment purposes. I don't suggest 
that we prohibit someone from eating maggots on television. I 
just think that's bad taste. But people have a right to do 
that, I guess, and a right to film it and show it.
    But I think a consensus with respect to this issue that 
we're discussing today is the following, that the menu of sex 
and violence on television is harming children. That was the 
consensus of this panel, except for one person. And, second, it 
is not only harming children, it is increasing. And, with 
respect to Mr. Tribe's position, there is nothing we can do 
about it, or at least little we can do about it, except to say 
to parents, ``We hope you'll do a better job.''
    Now, I don't quite understand the circumstance here. The 
airwaves over which the television programs are broadcast 
belong, not to Big Brother, Mr. Tribe, but to the American 
people. And your reference to Big Brother, I suspect, is that 
instrument the American people control, called ``We, the 
people''--it's the Federal Government. The airwaves belong to 
the American people. The conditions under which those airwaves 
are used by people to whom we license those airwaves, seems to 
me, is a perfectly appropriate thing for us to discuss. I'm not 
a big fan of censorship at all. I think it moves in the wrong 
direction. But I do think that we ought to think seriously 
about, what are the conditions that attach to licensing the 
airwaves for free use by broadcasters? Should there be a period 
of time in which you can expect the television menu presented 
in that home living room, when children are present, would have 
material that is appropriate for that? I think it's perfectly 
appropriate for us to be considering that. It is not 
grandstanding. It's been going on in this Committee for about 
10 to 15 years, with virtually no progress. And I commend my 
colleague for raising it once again, because I think this is a 
serious issue.
    I might just make one other observation. My understanding 
was, the last time we discussed this, when Teenage Mutant Ninja 
Turtles was a very popular program in this country, it was 
filmed two separate ways. Teenage Mutant Ninja Turtles was 
filmed, for American viewing audiences, with all of the blows 
and all of the swinging of clubs and whatever they did, and 
then it was filmed a second way, with most of that, or much of 
that, excised, with a much less violent content to it, because 
that's what was required for it to be aired in Europe, 
particularly Great Britain.
    So, you know, my point--I've not asked questions here, but 
I've listened attentively, I've read all of the statements. I 
think this is a constructive panel. I think it's an important 
subject. I don't think it is easy to solve.
    Mr. Tribe, I have long, long, long respected you and all of 
the work you do with respect to the First Amendment, but you 
will, I hope, understand my concern about an implication of 
this Committee grandstanding when we deal with an issue of this 
importance, an issue in which all of us--almost all of us agree 
is harming children, and one in which we wish we could find a 
way, and we hope to continue to search for a way, to ask those 
who portray this material on television to be thoughtful, 
rather than thoughtless.
    Now, Mr. Tribe, I'll give you a chance to respond.
    Mr. Tribe. Thank you, Senator.
    First of all, I would certainly apologize if I was 
understood to be saying that this Committee is grandstanding. 
This Committee is treating this issue with utmost seriousness, 
and I respect it for doing that.
    What I'm concerned about is a lot of people who are in 
favor of doing something whether it survives in the court or 
not, and who, unlike this Committee, are not going to dig 
seriously into the merits and into the constitutional issues, 
and who are therefore not doing their job, in the way that this 
Committee is doing it.
    As far as Big Brother is concerned, I certainly agree that 
the public airwaves are a public resource, and that licensing 
the public airwaves through the FCC is an important process, 
but it's not a process that gives license to the Government to 
engage in the censorship that I think you and I both agree is 
dangerous.
    If we were to engage in censoring the free, over-the-air 
broadcast system without a similar program for dealing with 
newspapers, video games, and cable, we would be touching so 
small a part of the problem that we would really be making a 
symbolic gesture that wouldn't affect the large flow of 
material that our children see.
    Senator Dorgan. Mr. Tribe, let me ask you a question. What 
if, tomorrow, there were a public hanging in this country that 
had been through the court system and a defendant was ordered 
hanged, and it was all right for that jurisdiction for it to be 
televised? And do you suspect that we would have a rush of 
those who wished to televise it? And do you think it would 
capture a large audience? And do you think it would be 
appropriate?
    Mr. Tribe. It certainly wouldn't be appropriate. I hope it 
wouldn't capture a large audience. But I have asked a final 
exam question on whether, under current law, it would be 
permissible to black it out, and I don't really know what the 
answer is.
    Senator Dorgan. Would free speech----
    Mr. Tribe. It would be implicated.
    Senator Dorgan. Would----
    Mr. Tribe. But I don't know the answer to your question.
    Senator Dorgan. If this country decided, ``You know what, 
we don't want to televise hangings,'' would that be censorship?
    Mr. Tribe. Well, if the country decided to prevent the 
distribution of pictures of Saddam Hussein's hanging, I suppose 
it would be a form of censorship. It's a hard question.
    Senator Dorgan. You understand why I'm asking the question. 
The Federal Communications Commission and the Congress have 
some circumstances under which we can establish conditioning of 
licenses over which the airwaves----
    Mr. Tribe. Right. But if The New York Times chose to----
    Senator Rockefeller. I have to----
    Mr. Tribe.--run the picture on the front page----
    Senator Rockefeller.--interrupt, at this point. Senator 
Dorgan, your time is gone over, and Senator Thune has yet to 
speak.
    Senator Dorgan. Mr. Chairman, you're absolutely right I was 
doing such a great job of----
    Senator Rockefeller. You were.
    Senator Dorgan.--defending your position, I thought----
    Senator Rockefeller. You were.
    Senator Dorgan.--you would want me to go on.
    [Laughter.]
    Senator Rockefeller. I'm trying to be fair.
    Senator Thune?

                 STATEMENT OF HON. JOHN THUNE, 
                 U.S. SENATOR FROM SOUTH DAKOTA

    Senator Thune. I was just entertained listening, Mr. 
Chairman, so----
    Mr. Chairman, thank you for holding this hearing.
    And I want to thank the witnesses for taking time out of 
your schedules to share your thoughts with us on the issue of 
violence in the media.
    I remember--it was sort of self-regulating when I was 
growing up in western South Dakota. We got one TV station. We 
got the CBS network affiliate. And so, ``Gunsmoke,'' ``The 
Wild, Wild West,'' were the shows that we watched--and ``Bob 
Newhart,'' and the edgier ones, like ``M*A*S*H''--at that time 
was considered edgy--or ``Hawaii 5-0,'' which, at that time, we 
thought was a little on the edge, in terms of violence, and 
now, you look back on it, and it looks like child's play 
compared to what we're dealing with today. And it almost seems 
like, since that time, there has kind of been a race to the 
bottom, in terms of what's acceptable and the kind of content 
that we're exposed to today, and the coarsening that's occurred 
in our culture.
    According to the Kaiser Family Foundation, 81 percent of 
children ages 2 through 7 sometimes watch television without 
adult supervision, 91 percent of children ages 4 through 6 have 
turned on the television by themselves. And I guess my question 
is, where are the parents in this equation? Because I 
wholeheartedly agree with those who say that there is way too 
much that comes across the airwaves that is too violent for the 
eyes and minds of our children, yet I also come back to the 
basic premise that there is no substitute for a responsible 
parent.
    And, I guess, as we enter into this debate and try and 
determine how best to address, and whether or not there is a 
role for the Government to regulate this sort of thing, and how 
it fits within the framework of the First Amendment, these are 
all challenging and complex questions, and I appreciate some of 
the light that's been shed on those questions today.
    I would like to ask--pose a question of Mr. Tribe, and pick 
up on some of the line of questioning that you've responded to 
already. But Congress asked the FCC to look into the issue of 
media violence, and, at that time, my understanding was that 
one of the duties they tasked the FCC with was to come up with 
a definition of ``violence'' that would pass constitutional 
muster. In the recent April FCC report on violence, the FCC 
basically pushed that task back to the Congress. What is the 
likelihood of FCC or Congress coming up with a definition of 
``violence,'' for regulatory purposes, that survives in the 
courts? And, second, how much different would this definition 
have to be than the definitions television content providers 
are using in the current television rating system?
    Mr. Tribe. Senator, I don't think it's likely that a 
collective body like Congress can do a better job than the FCC 
when it was tasked by Congress to come up with proposed 
definitions of violence. So, although it may seem like a kind 
of pingpong match, I think that one possibility is to ask the 
FCC to do what it claimed it thought was doable, but just 
didn't want to try doing. It said, ``We know it's difficult to 
come up with a definition, but we think it can be done.'' And I 
think there is nothing like demonstrating that it can be done 
to satisfy the curiosity of those of you who think there may be 
a constitutional definition.
    So far, I have to say, every definition that I've seen is 
subject to several attacks, all of which, I think, are likely 
to succeed in the courts. First, every definition I've seen is 
still too vague for ordinary people to understand what it 
means, what it covers, and what it doesn't cover. Does it cover 
a certain scene from ``24''? Does it cover the landing scenes 
in ``Saving Private Ryan''? Second, every definition is over 
broad, in that it's going to encompass a great many things that 
are not hardcore enough to pass muster with the Supreme Court. 
Third every definition has internal inconsistencies. We hear 
that the more sanitized and the more trivialized a depiction of 
violence is--so that kids don't know how harmful violence can 
be--the more it's likely to get imitated. On the other hand, if 
you make these depictions really gruesomely realistic, children 
are going to have nightmares, and that causes another set of 
problems, sort of frightening our kids to death.
    And so exceptions get made, or the definition is like Swiss 
cheese, or we exempt news--like the coverage of a public 
hanging, if it happens to be news--and we exempt wrestling and 
violent sports. And once we exempt it all, then our kids are 
going to see violence anyway, and we're not going to make much 
of a dent. And the Supreme Court has said that, when you're 
dealing with speech, you've got to prove that you're going to 
make a real dent in the problem in order for it to pass muster.
    So based on any definition I've seen, I honestly think the 
likelihood of solving the constitutional problem through the 
route of centralized government control is extremely low. But 
at least the FCC could try to come up with something that you 
could look at and test, rather than this abstraction of saying, 
``It's difficult, but you guys try. ``
    Senator Rockefeller. Senator----
    Senator Thune. Yes, sorry. My time up?
    Senator Rockefeller. Your--it is.
    Senator Thune. All right. Thank you, Mr. Chairman. Then, I 
would thank, again, the panel for their testimony.
    Senator Rockefeller. Senator Thune, if you want to ask 
another question, go ahead.
    Senator Thune. Well, I was just going to ask a question, if 
I could, for Mr. Winter.
    And this is sort of a broad question, and I don't--I'd--in 
the interest of time--but, how would you improve the current 
rating system and its application, if you could do that?
    Mr. Winter. Thank you, Senator, for the question.
    The inherent problem today with the rating system is that 
those who are tasked with its success are actually financially 
motivated for its failure.
    The conversation here today has centered on something that 
I think is inaccurate. The viewer is not the consumer. The 
viewer is the product. The network sells the viewer's eyeballs 
to an advertiser. The advertiser is truly the consumer when it 
comes to broadcast television, sir.
    Anything that could possibly limit the number of people who 
are watching a show at any one point in time limits the amount 
of revenue that the broadcast network can earn. I spent most of 
my career, Senator, in the broadcast industry. It is a 
wonderful industry. But when you have clearly, here, an example 
of the fox guarding the henhouse, the rating system, as it's 
currently structured, cannot work. We did a study, this last 
April, that found, between 60 and 80 percent of the time, the 
ratings are wrong. Their language descriptors, the violence 
descriptors that I mentioned earlier, are inaccurate. We 
believe they're inaccurate because there is financial 
motivation, by those who are rating their own programs, to 
underrate them. It prevents a viewer from turning it off, and 
it prevents an advertiser, who may be mindful of what a program 
rating is before they sponsor it, to steer away.
    I believe that there needs to be an independent rating 
system. I believe it needs to be transparent. The stuff that we 
saw here on this monitor this morning may be rated TV-14. It 
may have a V descriptor. But what we saw here is not made clear 
to a parent, with a little V on the box that comes out of a TV 
commercial. I believe there needs to be a universal rating 
system. Parents are supposed to understand what a rating system 
is when they go to a movie, versus when they turn on the 
television, versus when they turn on the Internet, versus when 
they buy a video game, versus when they buy a music CD.
    And I believe, Senator, there should be a consequence for 
inaccurately rating a program. Currently, there is no 
consequence whatsoever for--either intentionally or 
accidentally--inaccurately rating a program.
    Senator Thune. Thank you.
    Thank you, Mr. Chairman.
    Senator Rockefeller. No, thank you very much, Senator 
Thune.
    I'm going to ask to be entered into the record a statement 
of Professor Kevin W. Saunders, Ph.D., Michigan State 
University College of Law, to the U.S. Senate Committee on 
Commerce, on June 26, 2007.
    And I, again, want to treat Mr. Tribe with respect but when 
I said ``consultant to,'' I deliberately left out the word 
``paid,'' and I'm now going to read it--I'm going to insert 
that word, because you said, ``I'm speaking from my heart,'' 
but you are being paid, by cable, network, and movies, to be 
here. And you're not an officer of the Cabinet, so that you're 
not being censored by OMB, you're not being told what can be 
said. But that needs to be on the record. And, for that reason, 
I want this and do say it without dissent, that an view of 
another law professor will be placed in the record.
    [The information previously referred to follows:]

    Prepared Statement of Professor Kevin W. Saunders, J.D., Ph.D., 
                Michigan State University College of Law
    I want to thank the Committee for this opportunity to share my 
thoughts on the protection of children from violent television 
programming. I am Senior Associate Dean for Academic Affairs and 
Professor of Law at Michigan State University College of Law, where I 
specialize in constitutional law and in particular the First Amendment. 
I have spent the past dozen years studying the constitutional issues 
surrounding attempts to limit the access of children to depictions of 
violence and to other negative media influences. I am the author of two 
books addressing the topic, Violence as Obscenity: Limiting the Media's 
First Amendment Protection \1\ and Saving Our Children from the First 
Amendment,\2\ and numerous law review articles.
    I will discuss the issue in the context of the Federal 
Communications Commission's April, 2007 Report.\3\ The Report first 
recognizes the impact of violent media on children, and recognizes that 
despite criticism from media groups and a small number of scientists, 
the scientific and health community has concluded that there is a 
negative impact. This sort of evidence has not yet convinced courts 
that a complete ban on children's access to violent video games is 
justified, with the courts often demonstrating a skepticism regarding, 
or an inability to understand, statistical studies. In the context of 
the broadcast media, the test may be less stringent. As the FCC notes 
in its Report, the Supreme Court has stated a test for broadcast 
regulation that seems somewhat short of the strictest scrutiny. In FCC 
v. League of Women Voters the Court said regarding television 
``restrictions have been upheld only when we were satisfied that the 
restriction is narrowly tailored to further a substantial governmental 
interest, such as ensuring adequate and balanced coverage of public 
issues.'' \4\ Thus, scientific results found insufficient in one 
context might be seen as sufficient in the arena of the broadcast 
media.\5\
    Rather than take that approach, I will discuss the recommendations 
that violent programming be channeled into hours when children are less 
likely to be in the audience in comparison to the FCC's limitations on 
sexual indecency. The foundational case in this area is FCC v. Pacifica 
Foundation,\6\ which grew out of an afternoon broadcast of humorist 
George Carlin's ``Filthy Words'' monologue, words Carlin said you could 
never, ever say on the air. The FCC took the position not that the 
words could never be said but that they could only be used in hours 
when children are less likely to be listening. The Supreme Court found 
statutory authority to require this channeling of indecent material and 
also found no violation of the First Amendment. The broadcast media 
were seen to enjoy lesser First Amendment protection than other media, 
because of the pervasive presence of the broadcast media, the fact that 
the broadcast media confront us in our homes and not just in public, 
and the accessibility of broadcasts to youth, even to children too 
young to read. Warnings were seen as inadequate for those who tuned in 
after they were broadcast, and turning off the broadcast after hearing 
the indecent material was said not to be an adequate remedy. The only 
solution was channeling. In a series of cases, the United States Court 
of Appeals for the District of Columbia Circuit eventually established 
limits that channel indecency into the period of 10 p.m. to 6 a.m.\7\
    The major issue raised by an attempt to protect children from the 
broadcast of violent programming is whether Pacifica addresses only 
sexual indecency or may apply to violence as well. The language of the 
statute at issue in Pacifica may be broad enough to include violence. 
The statutory prohibition was against the broadcast of ``indecent'' 
material. While Pacifica Foundation maintained that ``indecent'' meant 
``obscene,'' the Court said that ``indecent'' meant not in conformance 
with ``accepted standards of morality.'' \8\ Under such a broad 
reading, indecency can include violence, at least if the material does 
not conform to generally accepted standards of morality. In any case, 
legislation authorizing the FCC similarly to limit violence would 
resolve any statutory issue.
    In addition to the statutory concerns growing out of Pacifica, 
there is the important issue of whether the First Amendment analysis 
that justified the decision there carries over to violence. The 
pervasiveness, presence in the home and accessibility to children that 
spoke in favor of limiting sexual indecency are of equal concern when 
the material is violent. The argument that Pacifica can not carry over 
to violence finds its best statement in an article by Professors 
Krattenmaker and Powe published shortly after the Pacifica decision.\9\ 
They concluded that Pacifica must be limited to sexual material. They 
examined the decision against a background of Supreme Court cases 
regarding the First Amendment rights of children and concluded that, 
unless the Court was implicitly overruling several of those decisions, 
the indecency the First Amendment allows the FCC to regulate must be 
conceptually related to obscenity. For them the material subject to 
channeling must have the character of obscene material without 
necessarily reaching the level of explicitness and offensiveness needed 
to be legally obscene. Thus, in their view, Pacifica is limited to 
sexual material.
    There are two responses to Krattenmaker's and Powe's argument. The 
first is to conclude that, while the Court may not have intended to 
overrule the decisions Krattenmaker and Powe cite at the time of 
Pacifica, the strength of those decisions has lessened to the point 
that Pacifica can now apply to violence. The major case recognizing 
First Amendment rights in children, and one heavily relied on in the 
article, is Tinker v. Des Moines Independent Community School 
District.\10\ That case did recognize that children have First 
Amendment rights and that those rights even apply, with certain 
limitations, in school. Krattenmaker and Powe saw Tinker as limiting 
the application of case law approving restrictions on the distribution 
of material to children to sexual material.\11\
    Tinker may no longer have the vitality it had at the time 
Krattenmaker and Powe wrote their article. While the Court upheld 
student, and hence child, speech rights in the political context of a 
Vietnam War protest there, in later cases the Court has allowed 
restrictions in the schools.\12\ Tinker may be seen as a high point for 
the First Amendment rights of children, with any retreat by the Court 
weakening the argument offered by Krattenmaker and Powe. In Saving Our 
Children from the First Amendment, I argue that Tinker was actually 
about not allowing the schools to be used to skew a real debate in the 
adult community. One side in the Vietnam War debate could not be 
allowed to express its view while not allowing expression by the other. 
When it came to a nomination speech full of sexual innuendo in Bethel 
School District v. Fraser \13\ or what the principal saw as unsuitable 
articles on divorce and teenage pregnancy in Hazelwood School Dist. v. 
Kuhlmeier,\14\ children's rights did not prevail. To the degree that 
the combination of plurality, concurring and dissenting opinions in 
Island Trees Union Free School Dist. v. Pico \15\ provide guidance, 
that guidance again focuses on political skewing in the choice of books 
to be removed from the school library.
    If Tinker has eroded or is limited as suggested above, the argument 
that Pacifica is limited to material that approaches being obscene is 
weakened. Even if Krattenmaker and Powe were correct at the time of 
their article, it may now be constitutional to limit the access of 
minors to violence by requiring the channeling of broadcast violence. 
The discussion of the Tinker line of cases is only one part of Saving 
Our Children from the First Amendment, and the entirety of the book's 
argument speaks to the issue before the Committee. The thesis of the 
book is that there should be a two tier First Amendment. The protection 
of expression between adults should be fully robust, perhaps more 
robust than it is at present. At the same time, adult expression rights 
do not include the right to express oneself to other people's children.
    Free expression certainly has great value. It is essential to self-
government. It also is a part of the protection of the individual's 
autonomy interests in choosing the sort of person he or she wants to 
be. There are, of course, also costs. The violence concern has already 
been discussed, but there are also concerns over racist or sexist 
expression and over the effects of advertising. On balance, the dangers 
of government interference in the political process and our beliefs 
regarding autonomy lead to the conclusion that adult to adult 
expression should be strongly protected.
    The balance should be different for children. The costs when 
children are involved are greater. Children are still in the process of 
developing. Neuroscientists are learning that even teenagers are 
undergoing structural changes in the area of the brain that governs 
judgment and inhibition. Negative influences of media on children may 
then be far stronger than any negative effects experienced by adults.
    The benefits of free expression are also lessened when the issue is 
the availability of expression to children. Children don't play the 
same active role in self-governance that adults do, so free expression 
for them is not crucial to the political system. Children will 
eventually need to be competent voters, and as they approach majority, 
they should have more access to information and must learn to 
participate in political debate. But, these training interests should 
not have the same dimensions as adult interests in free expression. 
There is also less commitment to autonomy for children; we simply do 
not assume them competent to make all their own life style decisions. 
We limit their access to cigarettes and alcohol, while allowing adults 
to decide for themselves whether or not to smoke or drink. Even the 
founding libertarian John Stuart Mill recognized that children are 
different. He gave as a reason why the state should not punish adult 
self-regarding behavior the fact that the state had all of the person's 
childhood to instill rules of proper behavior and should not punish 
those it failed to teach.\16\
    If the First Amendment rights of children are weaker than those of 
adults, the government should have the right to limit their access to 
depictions of violence. Channeling of violent broadcasts would be an 
appropriate mechanism in furtherance of that interest. Pacifica 
recognized channeling as a proper balance of adult rights to hear the 
indecent material at issue there. If there is the same right to limit 
access to violence, the same balancing should allow channeling 
requirements for violence.
    The particular relevance to this issue of Violence as Obscenity: 
Limiting the Media's First Amendment Protection is as a response to 
Krattenmaker and Powe, if they are correct in their conclusion that the 
indecency the FCC may require channeled must be related to the obscene. 
The thesis of that book is that the focus of the obscenity exception to 
the First Amendment on sexual depictions is too narrow. It is the 
product of Victorian Age concerns over sex, and an analysis of the 
concept, a longer term view of the case law, and an examination of the 
policy arguments that justify the obscenity exception all speak just as 
well to violence as to sex. If violence, regardless of sexual content, 
may be obscene, lesser degrees of violence may be indecent, as the term 
is used in Pacifica, and may be channeled.
    It is important to note that the Supreme Court has never stated 
that obscenity may not be based on violence, independently of sex. 
There is language in cases involving sexual material that says for such 
material to be obscene it must be erotic. But, in those cases the Court 
was concerned with distinguishing sexual depictions that are obscene 
from other sexual depictions or from the use of words that may have a 
sexual use in other contexts.\17\ The relevance of those cases to 
violence is minimal. The only Supreme Court case directly addressing 
the regulation of violence is Winters v. New York.\18\ There the Court 
found the statute at issue unconstitutionally vague but specifically 
warned against reading the result as a conclusion that violence could 
not be regulated under a properly drawn statute.
    Turning to the ordinary language concept of the obscene, the 
extension of the word is clearly broader than sex, reaching even such 
uses as a corporation making ``obscene profits.'' A reasonable limiting 
construction that still includes violence is found in a suggested 
derivation of the word from ab scaena or ``off the stage,'' referring 
to material that cannot be shown on stage. Viewed from that perspective 
and over the long term, violence has as much claim to the label as sex. 
The classical Greek theater prohibited the depiction of homicide on 
stage.\19\ While a killing that occurred off stage could be described 
in great deal on stage and a person could die of natural causes or be 
struck down by the gods or commit suicide, homicide could not be shown 
on the stage. At the same time, there was a toleration of sexual 
dialogue and the on-stage portrayal of sexual excitement and 
nudity.\20\ The theater of early Rome shared these Greek values, and 
while later Roman theater allowed violence to the degree of actual 
killings, it also allowed the actual performance of on-stage sexual 
acts.\21\ The relative treatment of sex and violence has varied from 
age to age. While the Middle Age mystery plays were quite violent, in 
some eras entertainment was very sexual, extending to animal and even 
human copulation for the entertainment of an audience.\22\ 
Historically, sex has no exclusive claim to the label ``obscene.''
    Ordinary language analysis only takes us so far, and what is of 
real historical importance is the law's treatment of the obscene in 
constitutionally relevant eras. When the Supreme Court first recognized 
the obscenity exception it cited a long history of cases and statutes 
dating back to the constitutional era.\23\ In that history it is 
important to note the lack of a focus on sex. In Professor Schauer's 
review of the history of obscenity law,\24\ he concludes that in 
American law the sole focus of obscenity on sex did not develop until 
the 1986 Supreme Court decision in Swearingen v. United States.\25\ 
This Victorian Era, post-14th Amendment focus is the product of a 
constitutionally irrelevant period. If the law in the constitutional 
era and 14th Amendment era left obscene material unprotected, as the 
Court concluded, it should be what was considered obscene in those 
eras, and not the more limited Victorian concept, that is denied First 
Amendment protection.
    It is also interesting to note that the late 1800s limitation on 
the use of the word ``obscene'' was not accompanied by a change in the 
desire to regulate other depictions that would formerly have been 
labeled ``obscene.'' The New York organization established by the anti-
obscenity crusader Anthony Comstock also led the effort to prohibit the 
distribution of ``any book, newspaper or other printed paper devoted to 
the publication, or principally made up of criminal news, police 
reports or accounts of criminal deeds or pictures and stories of deeds 
of bloodshed, lust or crime.'' \26\ While this was the statute Winters 
held unconstitutionally vague, it does reflect a concern that was 
shared by a majority of the states in that era, as shown by nineteen 
nearly identical and four substantially similar statutes.\27\ The 
history of denying protection to violent material is then, until the 
most recent era, as long as that for sexual material. If legal history 
justifies the obscenity exception, it justifies an exception that 
reaches violence as well as sex.
    It is also important to examine briefly the policies offered as 
justification for the First Amendment and the obscenity exception. If 
the amendment protected only political speech or material advocating 
social change, the exception both with regard to sex and to violence 
would be justified, since material with serious value cannot be 
considered obscene. Professor Schauer's ``Free Speech Principle'' is 
broader but still requires communication, and he justifies placing the 
hardest core pornography in the obscenity exception because he says it 
is noncommunicative, is nonspeech, and is no more worthy of First 
Amendment protection than would be a mechanical sex aid.\28\ His 
objection to protecting sexually obscene materials appears to be that 
the brain is not their real audience. They have a visceral, rather than 
a cognitive or emotional, response. Music and romantic literature may 
stimulate, but they do so through the higher order functions of the 
brain. He views the brain as a superior audience to the genitals. The 
brain should also be considered a superior audience to the adrenals, 
and there seems to be no reason to prefer one portion of the endocrine 
system over the other. If depictions arc violent enough to have a 
hormonal effect, Schauer's analysis would seem also to exclude them 
from the First Amendment's protection.
    There are First Amendment theories that argue against the existence 
of the obscenity exception. But since the obscenity exception is a part 
of the law, the more interesting theories are those that justify it. 
Each of those theories also justifies an exception for violent 
obscenity.\29\ Given the legal history, the ordinary language concept, 
and the inability to distinguish the two under First Amendment theory, 
the law should allow a refocusing of the obscenity exception to include 
violence. That recognition of violent obscenity should be accompanied 
by a further recognition that violent material may also be indecent. As 
such, it can come within the analysis of Pacifica, and the FCC may be 
authorized or directed to channel it into hours when children are less 
likely to be in the television audience.
    It must be admitted that this obscenity argument has enjoyed only 
limited success since being offered in Violence as Obscenity. In a 
recent case growing out of an Indianapolis attempt to prevent minors 
from playing violent games in video arcades, the Federal district 
court, in American Amusement Machine Ass'n v. Kendrick,\30\ used the 
theory in refusing to enjoin enforcement of the ordinance. However, 
when the District Court decision was appealed to the United States 
Court of Appeals for the Seventh Circuit, an opinion by Judge Posner 
rejected the inclusion of depictions of violence within the category of 
the obscene, concluding that the two are ``distinct categories of 
objectionable depiction,'' \31\ and other courts have followed Judge 
Posner. In Judge Posner's view, obscenity is restricted because the 
community finds it offensive, while there is not a similar 
offensiveness in violent material and restrictions are motivated by 
concern over dangerousness. It is, however, not at all clear that those 
concerned over sexually obscene materials are concerned solely out of 
some sense of offense. Furthermore, there would seem to be something 
flawed in a person or society offended by depictions of sexuality but 
failing to find any offense in explicit depictions of great violence. 
That is, however, not in fact our society.
    A study that exposed a population in the Memphis, Tennessee area to 
sexual and to violent films and surveyed their reactions speaks to the 
issue.\32\ The sexual films were selected based on obscenity 
prosecutions indicating prosecutor beliefs that the films violated 
community standards for offensiveness, and the violent films were of 
the ``slasher'' variety. The participants were asked to assess the 
films both in terms of whether they found the films acceptable and also 
whether they though the community found them acceptable. In summarizing 
the results, the study concludes that the adults found the sexual films 
not to be patently offensive, while the violent films were seen as 
exceeding their standards for offensiveness. What is particularly 
interesting is that, while the participants found the violent films 
offensive, they believed that others in the community tolerated the 
materials, while in another cited study the sample found the sexual 
materials not to be offensive but believed the community thought them 
to be offensive. If those results accurately represent the population, 
then the participants, and Judge Posner, must be wrong. People find 
violence offensive but think their community does not. But they are the 
community, or are representative of it, so the real situation is that 
the community in a sense finds violence offensive but thinks that it 
does not. That is, the average person finds the material offensive but 
believes himself or herself to be out of step with public sentiment. To 
the contrary with sexual material; the average person does not take 
offense but believes that other members of the community are offended. 
Judge Posner, whether he does or does not personally find violent 
depictions offensive, may have failed to recognize the degree to which 
the public does find such images offensive.
    Turning, last, to the issue of requiring that cable systems allow a 
channel by channel selection of the programming that parents allow into 
their homes, there would seem to be little in the way of First 
Amendment concern. Such a rule would be in the realm of business 
regulation and protects the consumer from a form of product tying that 
requires buying cable services in packages or tiers. It is not content 
based. Some will refuse to buy channels perceived as conveying more 
violent fare, others will choose not to receive sports programming, and 
others will reject decorating and home improvement programming. All the 
FCC proposes doing is to allow the individual consumer to determine 
what comes into hie or her home. The government offers no regulatory 
pronouncements as to what is suitable to what audience.
    While the case arose in the context of limits on mailing commercial 
material to recipients who found the material objectionable, the Court 
in, Rowan v. United States Post Office Dept.,\33\ offered insights that 
speak to this issue as well.

        736 [T]he right of every person `to be let alone' must be 
        placed in the scales with the right of others to communicate. . 
        . . Weighing the highly important right to communicate, but 
        without trying to determine where it fits into constitutional 
        imperatives, against the very basic right to be free from 
        sights, sounds, and tangible matter we do not want, it seems to 
        us that a mailer's *737 right to communicate must stop at the 
        mailbox of an unreceptive addressee. . . .

            To hold less would tend to license a form of trespass and 
        would make hardly more sense than to say that a radio or 
        television viewer may not twist the dial to cutoff an offensive 
        or boring communication and thus bar its entering his home. 
        Nothing in the Constitution compels us to listen to or view any 
        unwanted communication, whatever its merit; we see no basis for 
        according the printed word or pictures a different or more 
        preferred status because they are sent by mail. The ancient 
        concept that `a man's home is his castle' into which `not even 
        the king may enter' has lost none of its vitality, and none of 
        the recognized exceptions includes any right to communicate 
        offensively with another. . . .

            We therefore categorically reject the argument that a 
        vendor has a right under the Constitution or otherwise to send 
        unwanted material into the home of another. If this prohibition 
        operates to impede the flow of even valid ideas, the answer is 
        that no one has a right to press even `good' ideas on an 
        unwilling recipient. That we are often `captives' outside the 
        sanctuary of the home and subject to objectionable speech and 
        other sound does not mean we must be captives everywhere. . . . 
        The asserted right of a mailer, we repeat, stops at the outer 
        boundary of every person's domain.\34\

    While cable television is not commercial in the same sense as 
mailed advertisements, the reasoning rings true. The right of the cable 
system to provide channels ends at the viewer's cable box. So long as 
the government is not setting the limits, it may provide a mechanism by 
which the customer can.
Endnotes
    \1\ Kevin W. Saunders, Violence as Obscenity: Limiting the Media's 
First Amendment Protection (Duke Univ. Press, 1996)
    \2\ Kevin W. Saunders, Saving Our Children from the First Amendment 
(New York Univ. Press, 2003).
    \3\ Federal Communications Commission, In the Matter of Violent 
Television Programming And Its Impact On Children, MB Docket No. 04-261 
(April 6, 2007).
    \4\ 468 U.S. 364, 380 (1984).
    \5\ There are stronger reasons to be concerned over violence than 
over sexual indecency on television. There appears to be little 
evidence of physical or psychological harm growing out of the exposure 
of youth to sexual indecency. This lack of evidence is probably due to 
ethical, and legal, concerns over exposing children to such material to 
study the effects. In contrast, there is strong evidence of negative 
physical and psychological effects from exposure to violent material. 
There is a vast body of research demonstrating a connection between 
media violence and real world violence. Six major professional 
organizations in the health fields have found the science conclusive. 
In a joint statement to a July, 2000 congressional public health 
summit, the American Psychological Association, the American Academy of 
Pediatrics, the American Academy of Child and Adolescent Psychiatry, 
the American Medical Association, the American Academy of Family 
Physicians, and the American Psychiatric Association concluded that 
``well over 1,000 studies . . . point overwhelmingly to a causal 
connection between media violence and aggressive behavior in some 
children.'' American Academy of Pediatrics, et al., Joint Statement on 
the Impact of Entertainment Violence on Children, Statement to the 
Congressional Public Health Summit (July 26, 2000), available at 
www.aap.org/advocacy/releases/jstmevc.htm). While the entertainment 
industry may dispute the connection, as tobacco executives continued to 
deny the connection between tobacco and lung cancer, the scientific 
community has come to a conclusion. That conclusion provides more 
justification for concern over exposing children to violence than for 
exposure to sexual indecency.
    \6\ 438 U.S. 726 (1978).
    \7\ See Action for Children's Television v. Federal Communications 
Commission, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 116 
S.Ct. 701 (1966).
    \8\ 438 U.S. at 740. The Court cited Webster's Third New Int'l 
Dictionary (1996), which defined ``indecent'' as ``altogether 
unbecoming: contrary to what the nature of things or what circumstances 
would dictate as right or expected or appropriate: hardly suitable: 
unseemly . . . not conforming to generally accepted standards or 
morality.''
    \9\ See Thomas Krattenmaker & L.A. Powe, Jr., Televised Violence: 
First Amendment Principles and Social Science Theory, 64 Va. L. Rev. 
1123 (1978).
    \10\ U.S. 503 (1969).
    \11\ The case approving limits on distribution of sexually 
provocative material to minors was Ginsberg v. New York, 390 U.S. 629 
(1968).
    \12\ See Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988); 
Bethel School Dist. v. Fraser, 478 U.S. 675 (1986). Island Trees Union 
Free School Dist. v. Pico, 457 U.S. 853 (1982), is often seen as a 
second case affirming the First Amendment rights of children in 
schools. But, the procedural issue in the case, simply whether or not 
there was an issue to take to trial and the lack of a majority opinion 
make it difficult to draw much guidance from the case.
    \13\ 478 U.S. 675 (1986).
    \14\ 484 U.S. 260 (1988).
    \15\ 457 U.S. 853 (1982).
    \16\ See John Stuart Mill, On Liberty ch. 4 (London, 1859)
    \17\ See, .e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 
213 n.10 (1975); Cohen v. California, 430 U.S. 15, 20 (1971).
    \18\ 333 U.S. 507 (1948).
    \19\ See, e.g., Peter D. Arnott, An Introduction to the Greek 
Theatre 22 (1959); Roy C. Flickinger, The Greek Theater and Its Drama 
130 (4th ed. 1936).
    \20\ See, e.g., Aristophanes, Lysistrata (Robert Henning Webb 
trans., 1963).
    \21\ See Richard C. Beacham, The Roman Theatre and Its Audience 
136-37 (1991).
    \22\ See Eberhard & Phyllis Kronhausen, Pornography and the Law: 
The Psychology of Erotic Realism and Pornography 66-67 (1964).
    \23\ See Roth v. California, 354 U.S. 476, 482-83 (1957).
    \24\ See Frederick F. Schauer, The Law of Obscenity 7 (1976).
    \25\ 161 U.S. 446 (1986).
    \26\ N.Y. Penal Law  380 (1884).
    \27\ See Winters, 333 U.S. at 522-23 (Frankfurter, J., dissenting).
    \28\ See Frederick Schauer, Free Speech: A Philosophical Enquiry 
ch. 12 (1982).
    \29\ Other theories justifying the obscenity exception and their 
application to violence are discussed in Kevin W. Saunders, supra note 
1, at 135-60.
    \30\ 115 F.Supp.2d 943 (S.D. Ind. 2000), rev`d, 244 F.3d 572 (7th 
Cir. 2001), cert. den., 122 S.Ct.462 (2001).
    \31\ American Amusement Machines Ass'n v. Kendrick, 244 F.3d 572, 
574 (7th Cir. 2001), cert. den., 122 S.Ct. 462 (2001).
    \32\ See Daniel Linz, Edward Donnerstein, Bradley J. Shafer, 
Kenneth C. Land, Patricia L. McCall & Arthur C. Graesser, Discrepancies 
Between the Legal Code and Community Standards for Sex and Violence: An 
Empirical Challenge to Traditional Assumptions in Obscenity Law, 29 Law 
& Soc'y Rev. 127 (1995).
    \33\ 397 U.S. 728 (1970).
    \34\ Id. at 736-38.

    Senator Rockefeller. This, to me, has been an interesting 
session--I'm going to come to you, Senator Klobuchar--
interesting session, because it's exactly like all the other 
ones we've heard. All the questions have gone to Mr. Tribe, 
which I think, is predictable. The questions that have gone to 
you, Mr. Liguori, I could have answered the questions as you 
did, because I knew exactly what you were going to say, because 
that's what you've got to say. The people who deal--in a sense, 
this has almost wandered away from a hearing about children, 
you know, it's become sort of a discussion of American society. 
It is not. This is a hearing about the effect of violence and 
indecency, all the rest of it, on small children. And that's 
only what it's about. People have had a chance to talk about a 
lot of other things, among those being parental responsibility.
    And, of course, I agree with parental responsibility, and 
what I think--and I think that Senator Klobuchar was thinking 
of some of this. Our only daughter is a special-ed teacher, and 
she has been working in Jackie Robinson Junior High School, on 
116th Street in New York, at a junior high school there, and--
that's a 100 percent nonwhite student body--and they did a very 
interesting thing, because a lot of the children were 
disruptive in class, and they wanted to know why. So, rather 
than punishing the student on the spot, they made each of the 
teachers, on a monthly basis for a period of at least a year, 
go to the homes of those individual students, where, for the 
most part, teachers found no parents, parents who were strung 
out on drugs, parents who were engaged in other activities, for 
the most part, parents who simply were not there. That's a 
dramatic inner city example.
    I don't know if any of you gentlemen have ever been to West 
Virginia before, but one does not find an abundance of either 
broadband or many other things that are part of the larger 
urban world, especially in the rural parts of West Virginia. I 
was a VISTA volunteer there for 2 years. And, granted, that was 
some time ago, but the whole concept of a parent being able to 
enforce a V-Chip, had there been one at the time, is absolutely 
absurd. It's absolutely absurd. Parents don't take the time to 
do that, because parents are under unbelievable pressure in 
their lives. And often, parents are watching with the children, 
which brings in another dimension about parental 
responsibility.
    I agree with parental responsibility, but unless you can 
show that parental responsibility works, then, it seems to me, 
we have to try something else.
    Now, the answer here, roundly, with the exception of 
several of our witnesses, has been that there is nothing, 
really, we can do. And the difference between--what was it--
causal effect and--whatever the other legal term was. And so, 
we immediately get lost into the world of, ``What can we do?'' 
There can be no answer that will pass muster in the Supreme 
Court, or in the courts.
    And, see, that's been the pattern. I was with Senator 
Dorgan, working on this, starting a dozen years ago, with 
Senator Hollings. And I continue working on it, and I'll 
continue--I'll keep on, for as long as I'm here. It's a 
devastating problem. To point at parents, and to have the head 
of FOX--or whatever your position is, Mr. Liguori--to say that 
the problem is the parents, strikes me as an inordinately 
repulsive statement. You're the one--and I think that, Mr. 
Winter, you've hit it on the nail--his audience is not the 
child, his audience is the advertiser. He's got to sell the 
program to the advertiser to make sure that the advertiser puts 
up the money so he can put the program on. And I think that's 
the history of television.
    Television used to self-regulate quite well, up until about 
1992, and then, all of a sudden it just went straight downhill, 
and it has stayed so.
    And so, I will conclude my statement with the statement 
that Eddie Fritts, then head of the National Association of 
Broadcasters, said, 3 years ago: ``The National Association of 
Broadcasters believes that voluntary industry initiatives are 
preferable to government regulation when dealing with the 
program issues, just releasing a number''--et cetera, et 
cetera, et cetera.
    Well, of course that's what he's going to say. Of course 
that's what he's going to do--going to promulgate. Of course 
Jack Valenti's farcical $250 million--which was not, 
incidentally, money, but it was just money taken away from 
television advertising, so it wasn't even a donation, which it 
was made out to be. It doesn't have any effect. Americans don't 
remember things for long periods of time, and they don't know 
technology well.
    To me, the saddest part about what I think has been a very 
interesting hearing, but very frustrating, from my point of 
view, has been that the three people who have studied this 
from--in terms of Mr. Winter, Dr. Kunkel, Mr. McIntyre--who 
have studied this from the point of view of the effects, on 
children, of violence and indecency, has been relatively not 
discussed. You have discussed it. Others have not. The panel 
has relatively not discussed it.
    That's what we're talking about. We're not talking about 
30-year-olds or 60-year-olds or whether Senator Lautenberg is 
repulsed or not, or whether Senator Sununu thinks that putting 
something on at 10:35, which--at least it got our attention, 
that was the point of it--the point is, it's about little 
children, whose brains are entirely formed by the time they are 
5 years old, and whose habits are clearly forming as they enter 
into their teen years. This is exactly what we're talking 
about, and only what we're talking about. So that the three 
people, I think, who know the most about that are the three 
people who received the fewest questions. And I think that is, 
in a sense, symbolic of the race for the bottom and the race 
for the dollar in our society.
    Senator Klobuchar?
    Senator Klobuchar. Thank you, Senator Rockefeller.
    And thank you, to our panelists.
    I will say that I'm focused here on some of these kids 
whose parents might not have the resources to figure out the V-
Chip. I'll tell you, in my own life, my husband and I have--our 
TV, the volume is so low, we can't get it higher, that we have 
to turn the air-conditioning off to watch it, and we don't have 
time to fix it yet. It's been like that for about a month. And 
I think about these other parents who have a lot less resources 
than us. So, I struggle here with trying to help these parents, 
and--who I think want to be responsible for their kids--to find 
the easiest way to do this.
    And the answer, to me, is that we have to educate, as much 
as possible, and then we have to see if we can be creative 
about doing this in the right way, because I really don't want 
to pass something that we believe is going to be thrown out in 
court, just to do that.
    And so, I'm, you know, looking at this a la carte option, 
which I think is problematic. I think you kind of squeeze one 
end of the water balloon, and then you have problems on the 
other end. I know there are concerns from the religious and 
minority broadcasters on this, and that's why I keep going back 
to push Mr. Liguori and the industry on the technological 
possibilities that we could put in place here to help parents; 
to make it easier when they order their systems or whether they 
know for sure there is a certain time band. And I know that 
this has been tried before, and found unconstitutional. But I 
just ask--this is my first hearing on this subject, I know 
there have been a lot of other ones in the past--but we are a 
smart country, we've been able to develop things. We know that 
violence has this effect on kids. I've seen it, as a 
prosecutor. We'd always use the statistic--and I'd see it in 
the kids of offenders that would come through the system, that 
kids that grow up in a home where there is violence--I'm not, 
here, talking about TV violence, I'm talking about watching 
their own parents--are 76 times more likely to become 
offenders, themselves. That's a statistic that isn't about TV 
violence, but I've seen it in my own life, with the kids that 
we see.
    So, anything that we can do--and I think we need to measure 
the effect of some of these things, which are of good merit--to 
allow parents to take more control, see if they're working, and 
then, if they're not working, to look at other ways that we can 
make it easier and easier for parents, especially those that 
are not of means, to try to limit what their kids watch.
    So, I want to thank you for being here. We look forward to 
working with all of you.
    Thank you very much.
    Senator Rockefeller. Thank you.
    And I also thank you.
    And this hearing is adjourned.
    [Whereupon, at 12 p.m., the hearing was adjourned.]
                            A P P E N D I X

 Prepared Statement of Hon. Daniel K. Inouye, U.S. Senator from Hawaii
    Television plays a formidable role in our lives. In the average 
American household, the television is on more than 8 hours a day. 
American children watch 28 hours of television programming each week. 
By the time most children begin the first grade, they will have spent 
what amounts to three school years in front of the television set.
    Television programming can be a tool for enlightenment, education, 
and discovery. But television programming also can impart more 
troubling lessons. Too often, for children, these lessons are violent 
ones.
    Based on decades of research, authorities such as the Surgeon 
General, the American Medical Association, the American Psychological 
Association, and the American Academy of Pediatrics have concluded that 
viewing television violence can lead to increases in aggressive 
attitudes, values, and behavior in children. More troubling, still, is 
that despite this conclusion, children today are exposed to more 
violence on television than ever before. In a survey of primetime 
programming, a recent study found that between 1998 and 2006, 
depictions of violence increased by 45 percent in the 8 p.m. ``Family 
Hour.''
    Television is a powerful medium, and those who control its 
programming have powerful responsibilities. Given the problem of 
television violence and the harm that can come from children viewing 
this violence, I hope we can encourage parents, industry, and 
government to act together to lessen children's exposure to television 
violence.
    I would like to thank Senator Rockefeller for his leadership on 
this issue. I look forward to the testimony from today's witnesses.
                                 ______
                                 
   Prepared Statement of Hon. Mark Pryor, U.S. Senator from Arkansas
    Senator Rockefeller, thank you for requesting this important 
hearing.
    Over the past decade there has been literally thousands of studies 
and reports on the impact of media content on children. The vast 
majority of these studies conclude that children are indeed vulnerable 
to the message conveyed in TV shows, movies, and games--and that the 
impact can be harmful.
    I agree with these studies. I believe that television programming, 
music, and video games have a strong influence on children, including a 
child's perception of safe and reasonable behavior.
    I believe that there is a compelling government interest to 
understand and protect children from manipulative and destructive 
content.
    And, I believe that it is good business for business to develop 
content that is appropriate for kids.
    I hope that this hearing will start debate on meaningful 
initiatives to protect children from harmful content. I further hope 
that industry and advertisers will take proactive steps to reforming 
the current trends in violent and sexual content.
    I look forward to hearing from the witnesses on this pressing 
issue.
                                 ______
                                 
      Prepared Statement of Hon. Michael J. Copps, Commissioner, 
                Federal Communications Commission (FCC)
    Mr. Chairman, Mr. Vice-Chairman, Members of the Committee, while my 
duties at the FCC unfortunately prevented me from being in two places 
at once on the day of your hearing, I thank you for the opportunity to 
provide the Committee with my written testimony on a subject that is so 
important to the future of our country: our children and the need to 
better protect them from the ever-increasing violence they see on 
television. Let me also just take a moment to personally thank Senator 
Rockefeller whose unwillingness to accept business as usual when it 
comes to the media's constant barrage of violent programming at our 
children is a lesson in leadership that I greatly admire and from which 
the country greatly benefits.
    I know this because as I travel across the country talking with 
people about our Nation's media, I consistently hear from parents about 
what their children are seeing on television. I hear many voices but 
one common refrain--parents are afraid of many of the images television 
sends, upset at the kinds of behavior certain programming seems to 
condone, and totally turned off by the extraordinary and escalating 
violence being broadcast into our living rooms. Television is perhaps 
the most powerful force at work in the world today. When used for good, 
it can enlighten minds, convey powerful ideas, educate, and lay the 
foundation for human development. But when it is used to mislead, 
misrepresent and distort, it can--it does--inflict lasting harm.
    Most of the evidence amassed over the past half century indicates a 
relationship between gratuitous violence and harmful effects--personal, 
psychological and social. The facts are extraordinary and alarming. 
Children watch on average between two and 4 hours of television every 
day; young children are masters of the remote control; and they often 
watch television unsupervised. The research taken as a whole strongly 
suggests that children's constant exposure to violence on television 
can be desensitizing, damaging and even devastating to them and to 
society-at-large. While research continues on how precisely children 
are affected by what they watch, it strikes me as already well-
established that unfortunate and negative outgrowths result from the 
spreading virus of broadcast violence.
    It is certainly the case that there is an important role for all of 
us to play when it comes to protecting our children from violent 
programming--parents, industry, the FCC, and Congress. Parents are of 
course the first line of defense, and without their active involvement 
it is difficult to envision a successful cure for the violence virus. 
Yet significant evidence indicates that no tools thus far available 
have been successful in containing the epidemic. This would include the 
V-chip, other control technologies and the existing television program 
ratings system. Industry's efforts have obviously not solved the 
problem and the preoccupation of some media--especially large national 
conglomerates often more interested in selling products to young people 
than in removing violence from the airwaves--does not provide much 
confidence that it will move to solve the problem. Given the impact of 
gratuitous violence on children and the pervasiveness of this kind of 
programming in our homes, it becomes altogether appropriate for 
Congress and the Commission to address the issue.
    As you know, Members of Congress requested the FCC to report on 
this issue and to develop some options for you to consider. The 
recently-submitted FCC violence report was the Commission's response to 
that request. It surveys the problem, presents our considered ``take'' 
on the issue and develops several options for Congress to consider 
should it decide to develop legislation on the matter. It tees up such 
options as time channeling, viewer initiated blocking and mandatory 
ratings, as well as a la carte or bundling approaches in the cable and 
DBS context. Congress retains, of course, the prerogative to act. The 
FCC violence report married no one approach but instead responded to 
the request for analysis and options. In my view, this is the right 
approach and one that should be expected of the Commission more often. 
The Commission utilized its expertise and experience to develop a 
number of options in addressing this issue in order to assist Congress 
in making informed choices as part of its own deliberations.
    To this end, the Commission unanimously concluded that it is 
appropriate for Congress to entertain taking action against program 
violence. Congress has the opportunity, should it choose to do so, to 
establish innovative, meaningful, and constitutional ways for 
safeguarding our children from violent programming when they are most 
likely to be in the viewing audience. I for one proceed acutely 
sensitive to the need for a carefully crafted approach. I want to see a 
solution that solves the problem without creating others. I recognize 
that it is not an easy challenge to develop rules that pass 
constitutional muster, but given what amounts to a public health crisis 
at hand, I believe it is a challenge that must be met. Serious and 
festering problems require solutions, so the question here is not 
whether we should address the issue, but how we should address it. 
Working together--citizens, industry and government--there is simply no 
reason why we should not be able to find workable solutions.
    I hope and trust that the Commission's report and this hearing are 
the beginning drum beats of a march toward better safeguarding our 
children from excessively violent television programming.
                                 ______
                                 
                        Association of National Advertisers
               American Association of Advertising Agencies
                            American Advertising Federation
                                                      June 25, 2007
Hon. Daniel K. Inouye,
Chairman,
Commerce, Science, and Transportation Committee,
U.S. Senate,
Washington, DC.

    Dear Chairman Inouye:

    The American Advertising Federation, the American Association of 
Advertising Agencies, and the Association of National Advertisers, Inc. 
are writing to express our deep concern about and opposition to 
sweeping proposals to extend the FCC's authority to regulate broadcast 
indecency to include depictions of violence. Among other things, we 
believe that neither the FCC nor Congress have begun even to address 
the many difficult policy and constitutional issues that would 
necessarily attend such a vast expansion of the Commission's authority 
over programming content. A thorough review of the evidence and growing 
body of case law demonstrates conclusively that the First Amendment 
problems of such a radical change in the law would be insurmountable.
    On April 25, the Federal Communications Commission issued its long-
awaited report entitled Violent Television Programming And Its Impact 
of Children, _ FCC Rcd. _, FCC 07-50 (rel. April 25, 2007). The FCC 
stated that, ``[g]iven the findings in this Report, we believe action 
should be taken to address violent programming,'' and that Congress 
could craft rules to regulate ``excessively violent'' television 
programming consistent with judicial precedent. The FCC, however, did 
not attempt to define what it meant by ``violent programming,'' as it 
promised to do. Instead, it merely acknowledged that ``developing a 
definition would be challenging'' and concluded only that ``we believe 
Congress could do so.'' The Commission's admission that the task is 
``challenging'' is a vast understatement, and its Report provides no 
basis for believing that Congress could do what the agency evidently 
could not. However, all existing precedent demonstrates that rules 
regulating images of violence on television would not survive judicial 
scrutiny.
    We believe the FCC's superficial analysis failed to provide 
Congress with the guidance it requested in 2004 and neglected even to 
answer the questions set forth in the Notice of Inquiry. Moreover, the 
Report, while ostensibly unanimous, did not reflect the views of a 
unified agency. In this regard, Commissioners Jonathan Adelstein and 
Robert McDowell both issued skeptical assessments of the bottom line 
conclusions. As Commissioner Adelstein acknowledged, ``[t]he difficult 
question is precisely which violent programming, if any, the government 
can regulate in the interest of protecting children. That question--the 
most challenging Congress faces--is never answered here.'' He compared 
the Report to ``a financial consultant who advises a client that he 
could win the lottery'' in that it ``discusses an optimal conclusion 
but does not provide a complete analysis or a sound plan.'' 
Commissioner McDowell similarly discounted the Report, saying ``I am 
disappointed that this Report does not provide more than a cursory 
mention of these important legal issues.'' He added that ``today's 
parents have at their disposal more choices in parental controls and 
blocking technologies than ever before. Never have parents been more 
empowered to choose what their children should and should not watch.'' 
With this fact in mind, Commissioner McDowell called it ``unfortunate'' 
that ``this Report does not sufficiently brief Congress on the full 
range of tools available or what can be done to mobilize parents in 
this pursuit.''
    It is a particular shortcoming of the Commission's violence Report 
that the FCC's ultimate analysis fails to reflect the extensive record 
the agency compiled in response to the Notice of Inquiry. The agency 
sought--and received--numerous comments from interested parties, yet 
its final Report did little more than restate its original questions in 
the form of conclusions. A reader of the FCC's Report would not know, 
for example, that each of the FCC's original questions prompted the 
submission of a great deal of data and critical analysis, and almost 
none of it was reflected in the final product.
    Because Congress is now considering whether to embark on the 
dangerous and unconstitutional path of regulating images of violence, 
it is imperative that it be fully informed of the daunting hurdles it 
would need to overcome, such as the fact that no attempt to regulate 
programming that depicts violence has ever survived constitutional 
scrutiny. As the United States Court of Appeals for the Seventh Circuit 
has observed, ``violence on television . . . is protected speech'' and 
that ``[a]ny other answer leaves the government in control of all the 
institutions of culture, the great censor and director of which 
thoughts are good for us.'' American Booksellers Ass'n, Inc. v. Hudnut, 
771 F.2d 323, 330 (7th Cir. 1985), aff'd mem., 475 U.S. 1001 (1986). 
Moreover, in striking down restrictions on renting to minors videotapes 
that depict violence, the Eighth Circuit confirmed that violent video 
programming is entitled to ``the highest degree of First Amendment 
protection.'' Video Software Dealer's Ass'n v. Webster, 968 F.2d 684, 
689 (1992).
    Since the FCC Report avoided discussing these critical issues, we 
are forwarding along with this letter a copy of the comments submitted 
to the FCC on our behalf.\1\ The comments were written by well-known 
First Amendment attorney Robert Corn-Revere of Davis Wright Tremaine 
LLP and include an analysis of the relevant social science data by the 
noted expert Jonathan Freedman, Professor of Psychology at the 
University of Toronto.
---------------------------------------------------------------------------
    \1\ A copy of the comments, including the appendix and exhibits, is 
retained in Committee files. The comments otherwise may be accessed 
online at http://gullfoss2.fcc.gov/prod/ecfs/
retrieve.cgi?native_or_pdf=pdf&id_document=6516732888, and the appendix 
and exhibits may be accessed at http://gullfoss2.fcc.gov/prod/ecfs/
retrieve.cgi?native_or_pdf=pdf&id_docu
ment=6516732889.
---------------------------------------------------------------------------
    The comments make a number of points, including the following:

   Any attempt by the Commission to regulate such programming 
        would face insurmountable First Amendment hurdles. As the 
        Tennessee Supreme Court has noted, ``every court that has 
        considered the issue has invalidated attempts to regulate 
        materials solely based on violent content, regardless of 
        whether that material is called violence, excess violence, or 
        included within the definition of obscenity.'' (See pp. 28-65 
        of the attached comments)

   Regulation of televised violence would impose either 
        wholesale censorship or an incomprehensible standard. As one 
        study reported, if all violence were eliminated, viewers would 
        be unable to watch historical dramas like Roots, theatrical 
        films like Schindler's List, or a documentary on World War II. 
        If, on the other hand, Congress or the Commission attempted to 
        distinguish ``good'' depictions of violence from ``bad'' 
        depictions, the resulting vague standard would impermissibly 
        chill speech and would give the government too much discretion 
        to curb disfavored expression. (See pp. 41-55)

   A failure to adequately define ``violence'' is fatal to any 
        attempt to impose regulations in this area. What exactly is 
        meant by the term ``violent programming'' bears on every aspect 
        of the inquiry, from the amount of such programming that 
        exists, to questions of its purported impact, and to whether 
        the Congress or the FCC could adopt any regulations that are 
        consistent with the First Amendment. (See pp. 1-4)

   Reports of studies and media effects from ``violent 
        programming'' have been vastly misrepresented and exaggerated. 
        Professor Freedman published an exhaustive review of all of the 
        research on this topic and concluded that ``evidence does not 
        support the hypothesis that exposure to film or television 
        violence causes children or adults to be aggressive.'' Nor do 
        claims of ``desensitization'' have any demonstrated connection 
        to real world violence. (See pp. 5-20 & appendix)

   Actual experience with real-world aggression and violent 
        crime provides an important reality check against claims that 
        pictures of violence produce aggressive acts in real life. By 
        almost any measure, we are living in a less violent society 
        than in years past. Violent crime rates declined about 55 
        percent between 1994 and 2003, and a September 2004 Justice 
        Department report found that the crime rate is at its lowest 
        level since it began conducting the survey in 1973.\2\ (See pp. 
        21-24)
---------------------------------------------------------------------------
    \2\ Since these comments were submitted to the FCC there have been 
minor variations in the crime statistics, but they were insufficient to 
alter the trend toward reduced violence. For example, the FBI's Uniform 
Crime Report indicated a 1.3 percent increase in violent crime in 2005-
2006, but the amount of forcible rape declined by 1.9 percent and 
aggravated assault dropped by 0.7 percent. Overall, despite recent 
minor upward fluxuations in some categories, the FBI reported a 3.4 
percent decrease in violent crime over the past 5 years and a 17.6 
percent decrease over the past 10 years. FBI, Crime in the United 
States (www.fbi.gov/ucr/05cius/offenses/violent_crime/index.html).

   Regulation is unnecessary where technology provides 
        individuals with the capacity to select which programs they 
        wish to receive or exclude. As the Commission itself has 
        observed, the modern media marketplace has greatly evolved, and 
        ``new modes of media have transformed the landscape, providing 
        more choice, greater flexibility, and more control than at any 
---------------------------------------------------------------------------
        other time in history.'' (See pp. 24-28)

   In addition to the V-Chip that was implemented pursuant to 
        the Telecommunications Act of 1996, myriad market-based 
        technologies give television viewers a high degree of control 
        over programming. These marketplace developments empower 
        individuals and parents to accept or reject programming of 
        their choice. Some types of parental controls are provided 
        along with video service. Satellite customers have access to 
        parental control technology, and analog cable subscribers can 
        use their set-top boxes, or can lease or purchase a ``lockbox'' 
        to lock specific channels so that the programming cannot be 
        viewed.\3\ Digital cable subscribers can use their digital 
        cable box to restrict viewing by rating, by program title, by 
        time or date, or completely lock out certain channels or 
        programs. Such blocking options allow parents to control 
        programming in their homes without infringing others' 
        rights.\4\ (See pp. 24-28)
---------------------------------------------------------------------------
    \3\ The cable industry has adopted a program in which any 
subscriber who currently lacks the technical capability to block 
unwanted programming may upgrade his or her equipment without charge to 
incorporate parental controls.
    \4\ Two-thirds of parents ``closely monitor'' their children's 
media use, according to a new study released by the Kaiser Family 
Foundation on June 19, 2007. KFF, Parents, Children & Media (June 2007 
at 7. While 43 percent of parents surveyed are aware that their 
television sets come equipped with V-Chip technology, according to 
Kaiser, almost half of those parents (46 percent) report having used 
the V-Chip. Significantly, of those parents who have used the V-Chip, 
89 percent found it to be useful in blocking shows they don't want 
their children to watch (and 71 percent described it as ``very 
useful''). In addition, the Kaiser report found that 44 percent of 
parents say they have used other parental controls on their 
televisions, such as those provided by their cable or satellite 
companies. It also found that the vast majority of parents who have 
used any of the media ratings find them useful. Importantly, the Kaiser 
report found that most parents are confident that they already do 
enough to monitor their children's media use.

    Without fully addressing these critical issues, the Commission's 
Report blithely assumes that the broadcast indecency standard simply 
could be expanded to include programming that depicts violence. While 
the Commission was unable even to propose what a definition of violent 
depictions might include, it suggested that Congress could define which 
violent imagery should be considered ``patently offensive to 
contemporary community standards'' when viewed ``in context.'' However, 
the Report did little more than present its bare conclusion that 
Congress could dramatically expand content regulation. The FCC, 
however, is wrong. No judicial precedent supports the conclusion that 
programs that depict violence could be regulated as the Commission now 
suggests.
    Even if the Report's analysis is limited to the broadcast medium, 
its conclusion flies in the face of the June 4, 2007 decision by the 
United States Court of Appeals for the Second Circuit in Fox Television 
Stations v. FCC, _ F.3d _, 2007 WL 1599032 (2d Cir. June 4, 2007). 
Although the case was not decided on First Amendment grounds, the court 
devoted over nine pages to discussing the constitutional implications 
of any attempt to expand the definition of indecency beyond its 
original narrow construction. The court explained that ``[w]e can 
understand why the Networks argue that FCC's `patently offensive as 
measured by contemporary community standards' indecency test coupled 
with its `artistic necessity' exception fails to provide the clarity 
required by the Constitution, creates an undue chilling effect on free 
speech, and requires broadcasters to `steer far wider of the unlawful 
zone.' '' Id. At *15 (quoting Speiser v. Randall, 357 U.S. 513, 526 
(1958)). Citing the Supreme Court's decision in Reno v. ACLU, the Court 
said: ``we are hard pressed to imagine a regime that is more vague than 
one that relies entirely on consideration of the otherwise unspecified 
`context' of . . . broadcast indecency.'' Id at *15. The Commission's 
unsupported assumption that Congress could expand the scope of the 
indecency rule to depictions of violence considered to be ``patently 
offensive'' in context is flatly inconsistent with the court's 
constitutional analysis.
    Our three associations, representing a broad spectrum of the 
advertising community, strongly believe that the Committee should 
reject outright the FCC's invitation that it participate in this 
radical and unconstitutional effort to expand the regulation of 
programming content.
            Sincerely,
                                           Daniel L. Jaffe,
                                          Executive Vice President,
                                   Association of National Advertisers.

                                        Richard F. O'Brien,
                                          Executive Vice President,
                          American Association of Advertising Agencies.

                                         Jeffry L. Perlman,
                                          Executive Vice President,
                                       American Advertising Federation.

    The Association of National Advertisers leads the marketing 
community by providing its members insights, collaboration and 
advocacy. ANA's membership includes 355 companies with 8,500 brands 
that collectively spend over $100 billion in marketing communications 
and advertising. The ANA strives to communicate marketing best 
practices, lead industry initiatives, influence industry practices, 
manage industry affairs and advance, promote and protect all 
advertisers and marketers. For more information, visit www.ana.net.
    The American Association of Advertising Agencies (AAAA), founded in 
1917, is the national trade association representing the American 
advertising agency businesses. Its nearly 500 members, comprised of 
large multi-national agencies and hundreds of small and mid-sized 
agencies, maintain 2,000 offices throughout the country. Together, AAAA 
member advertising agencies account for nearly 80 percent of all 
national, regional and local advertising placed by agencies in 
newspapers, magazines, radio and television in the United States. AAAA 
is dedicated to the preservation of a robust free market in the 
communication of commercial and noncommercial ideas. More information 
is available at www.aaaa.org.
    As the ``Unifying Voice for AdvertisingTM,'' the 
American Advertising Federation (AAF), headquartered in Washington, 
D.C., with a Western Region office in Newport Beach, California, is the 
trade association that represents 50,000 professionals in the 
advertising industry. AAF's 130 corporate members are advertisers, 
agencies and media companies that comprise the Nation's leading brands 
and corporations. AAF has a national network of 210 ad clubs and 
connects the industry with an academic base through its 210 college 
chapters. More information is available at www.aaf.org. 
                                 ______
                                 
    Prepared Statement of Joanne Cantor, Ph.D., Professor Emerita, 
University of Wisconsin-Madison; on Behalf of the Center for Successful 
                               Parenting
    Mr. Chairman and members of the Committee, thank you for holding 
this hearing on the impact of media violence on children. Since 1974, I 
have been a professor at the University of Wisconsin, focusing the 
greater part of my research on the impact of media violence on 
children's aggressive behaviors and their emotional health. I have 
published many articles in refereed journals on this topic as well as a 
parenting book, ``Mommy, I'm Scared'': How TV and Movies Frighten 
Children and What We Can Do to Protect Them and a children's book, 
Teddy's TV Troubles. I was a senior researcher on the National 
Television Violence Study, and I have testified several times before 
the U.S. House and Senate and the FCC on these issues.
    I have submitted my overall views on the impact of media violence 
to the FCC in response to their Notice of Inquiry in the Matter of 
Violent Television Programming and Its Impact on Children, and I attach 
a copy of those comments, which are also relevant to your hearing. 
Today, in my role as a Scientific Advisor to the Center for Successful 
Parenting, I am focusing specifically on brain research conducted by 
researchers at the Indiana University School of Medicine and supported 
by the Center. I alluded briefly to this research in my comments to the 
FCC.
    The research conducted at the Indiana University School of Medicine 
has contributed to the media violence issue in two innovative ways: by 
including children who are already experiencing problems with violence 
and by focusing on the functioning of the brain. First, a study by 
Kronenberger and associates (2005) looked at the relationship between 
media violence exposure and violent behavior in groups of adolescents 
whose levels of aggression are outside the normal range--those 
adolescents with Disruptive Behavior Disorder (DBD). This study 
demonstrated that adolescents with the diagnosis of DBD have 
significantly higher exposure to both television and video game 
violence than do normal adolescents, and this relationship is not due 
to differences in gender, age, or intelligence. A further study 
(Kronenberger et al., 2004) showed that media violence exposure is 
associated with poorer performance on tasks that involve the ability to 
both respond to stimuli and inhibit incorrect responses. More 
importantly, the IU Medical School studies on brain functioning show 
that both highly aggressive youth and youth with heavy exposure to 
media violence have brains that function differently from their less 
aggressive peers and differently from the brains of those who are less 
heavily exposed to media violence (Kalnin et al., 2005; Matthews et 
al., 2005; Wang et al., 2002).
    These researchers have conducted functional magnetic resonance 
imaging (fMRI) of adolescents' brains while they viewed images from 
violent video games and while they performed other tasks. fMRI measures 
the tiny metabolic changes that occur when a part of the brain is 
active. These changes appear as a brightly colored area on the MR 
image, indicating the part of the brain that is being used to process 
the task. The evidence suggests that teens diagnosed with DBD have less 
activity in their brain's frontal lobes while watching violent games 
than do those without the diagnosis. The frontal lobe is the area of 
the brain responsible for decision-making and behavior control, as well 
as attention and a variety of other cognitive functions. The 
researchers also found that among the nonaggressive adolescents (those 
without the DBD diagnosis) there were similar differences in brain 
activity as a function of the amount of violent media exposure they had 
had during the preceding year. Nonviolent adolescents who had more 
exposure to media violence showed lower activity in their brain's 
frontal lobes both while viewing violent video games and while 
performing a decision-making exercise. In other words, like teens with 
disruptive behavior disorder, teens with high media violence exposure 
had lower activity in the logical part of their brains. Although these 
studies do not prove a causal connection between media violence and 
reduced brain function--the most recent phase of this research does 
suggest a causal connection.
    The latest study (Matthews et al., 2006) found that adolescents who 
play violent video games may exhibit lingering effects on brain 
function, including increased activity in the region of the brain that 
governs emotional arousal and decreased activity in the brain's 
executive function, which is associated with control, focus and 
concentration. The study suggests that playing a violent video game may 
have different short-term effects on brain function than playing a 
nonviolent--but exciting--game.
    In the research, 44 adolescents were randomly assigned to play 
either a violent video game (Medal of Honor: Frontline) or a nonviolent 
video game (Need for Speed: Underground) for 30 minutes. The 
researchers then used fMRI to study brain function during a series of 
tasks measuring inhibition and concentration. One test used emotional 
stimuli and one did not. The two groups did not differ in accuracy or 
reaction time for the tasks, but analysis of the fMRI data showed 
differences in brain activation. Compared with the group that played 
the nonviolent game, the group that played the violent video game 
demonstrated less activation in the prefrontal portions of the brain, 
which are involved in inhibition, concentration and self-control, and 
more activation in the amygdala, which is involved in emotional 
arousal. In other words, during tasks requiring concentration and 
processing of emotional stimuli, the adolescents who had just played 
the violent video game showed distinct differences in brain activation 
from the adolescents who had played an equally exciting and fun--but 
nonviolent--game. Because of random assignment to the two different 
video games, the two groups should have been equivalent to begin with; 
therefore, the most likely factor accounting for these differences 
would be exposure to either the violent or nonviolent video game during 
the experiment. This design suggests a causal connection.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Functional MRI study of Counting Interference Task--violent and 
        non-violent game players.

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        
        Functional MRI study of Emotional Stroop Task--violent and non-
        violent game players.

    The bottom line is that in both controlled, short-term experimental 
studies and in longer-term studies of viewing habits, exposure to media 
violence has been associated with reduced function in the areas of the 
brain associated with impulse control and decision-making and increased 
activity in brain areas associated with emotion. These findings suggest 
that even beyond the long-established impact that exposure to media 
violence has on imitation, desensitization, hostility, and fear (see my 
attached comments), there may be serious consequences of media violence 
that affect young people's brain development and functioning. This 
makes the issue of the ongoing cultural experiment of immersing our 
children in a world of virtual violence even more urgent and critical.
References
    Kalnin, A.J., Wang, Y., Kronenberger, W.G., Mosier, K.M., Li, T.Q., 
Dunn, D.W., & Mathews, V.P. (2005, June). Effects of media violence in 
adolescents with disruptive behavior disorder: Emotional Stroop fMRI 
study. Paper presented at the 11th Annual Meeting of the Organization 
for Human Brain Mapping, Toronto, Ontario (NeuroImage, 26 (supplement 
1), S25).
    Kronenberger, W.G., Mathews, V.P., Dunn, D.W., Wang, Y., Wood, 
E.A., Giauque, A.L., Larsen, J.J., Rembusch, M.E., Lowe, M.J., & Li, T. 
(2004). Media violence exposure and executive functioning in aggressive 
and control adolescents. Journal of Clinical Psychology, 61, 725-737.
    Kronenberger, W.G., Mathews, V.P., Dunn, D.W., Wang, Y., Wood, 
E.A., Larsen, J.J., Rembusch, M.E., Giauque, A.L., Lurito, J.T., & 
Lowe, M.J. (2005). Media violence exposure in aggressive and control 
adolescents: Differences in self- and parent-reported exposure to 
violence on television and in video games. Aggressive Behavior, 31, 
201-216.
    Mathews, V.P., Kronenberger, W.G., Wang, Y., Lurito, J.T., Lowe, 
M.J., & Dunn, D.W. (2005). Media violence exposure and frontal lobe 
activation measured by fMRI in aggressive and non-aggressive 
adolescents. Journal of Computer Assisted Tomography, 29, 287-292.
    Matthews, V., Wang, Y., Kalnin, A., Mosler, K. Dunn, D., & 
Kronenberger, W. (2006, November). Short-term effects of violent video 
game playing: An fMRI study. Paper presented at the Annual Meeting of 
the Radiological Society of North America, Chicago, IL http://
rsna2006.rsna.org/rsna2006/v2006/conference/
event_display.cfm?id=66601&em_id=4433801.
    Wang, Y., Mathews, V.P., Lurito, J.T., Lowe, M.J., Dzemidzic, M., 
Phillips, M.D., Kronenberger, W., & Dunn, D. (2002, December). Effects 
of violent media exposure by adolescents with Disruptive Behavior 
Disorder as compared to control subjects: fMRI activation patterns in 
frontal lobe. Paper presented at the 88th Annual Meeting of the 
Radiological Society of North America, Chicago, IL. (Radiology, 225, 
132)
Attachment
    Comments of Joanne Cantor in Response to FCC Notice of Inquiry in 
the Matter of Violent Television Programming and Its Impact on Children

                            University of Wisconsin-Madison
                                                 September 15, 2004
    I thank the FCC for their Inquiry into the matter of ``Violent 
Television Programming and Its Impact on Children.'' Since 1974, I have 
been a professor at the University of Wisconsin, focusing the greater 
part of my research on the impact of media violence on children's 
aggressive behaviors and their emotional health. I have published many 
articles in refereed journals on this topic as well as a parenting 
book, ``'Mommy, I'm Scared': How TV and Movies Frighten Children and 
What We Can Do to Protect Them'' (Cantor, 1998) and a children's book, 
``Teddy's TV Troubles'' (Cantor, 2004b). I was a senior researcher on 
the National Television Violence Study, and I have testified several 
times before the U.S. House and Senate and the FCC on these issues.
(1) Effects of Violent Programming.
     Researchers know a lot about the effects of media violence. Study 
after study has found that children often behave more violently after 
watching media violence. The violence they engage in ranges from 
trivial aggressive play to injurious behavior with serious medical 
consequences. Children also show higher levels of hostility after 
viewing violence, and the effects of this hostility range from being in 
a nasty mood to an increased tendency to interpret a neutral comment or 
action as an attack. In addition, children can be desensitized by media 
violence, becoming less distressed by real violence and less likely to 
sympathize with victims. Finally, media violence makes children 
fearful, and these effects range from a general sense that the world is 
dangerous, to full-blown anxieties, nightmares, sleep disturbances, and 
other trauma symptoms. (See Cantor, 2002b, for a more thorough 
discussion of the media violence research findings.)
    The evidence about these effects of media violence has accumulated 
over decades. Meta-analyses, which statistically combine all the 
findings in a particular area, demonstrate that there is a consensus on 
the negative effects of media violence. They also show that the effects 
are strong--stronger than the well-known relationship between 
children's exposure to lead and low I.Q. scores, for example. These 
effects cannot be ignored as inconclusive or inconsequential. (See 
Bushman & Anderson, 2001.)
    Even more alarming, recent research confirms that these effects are 
long-lasting. A study from the University of Michigan shows that TV 
viewing between the ages of 6 and 10 predicts antisocial behavior as a 
young adult. In this study, both males and females who were heavy TV-
violence viewers as children were significantly more likely to engage 
in serious physical aggression and criminal behavior later in life; in 
addition, the heavy violence viewers were twice as likely as the others 
to engage in spousal abuse when they became adults. This analysis 
controlled for other potential contributors to antisocial behavior, 
including socioeconomic status and parenting practices (Huesmann et 
al., 2003; see also Johnson et al., 2002).
    The effects of media on fears and anxieties are also striking 
(Cantor, 2002a). Research shows that intensely violent images often 
induce anxieties that linger, interfering with both sleeping and waking 
activities, sometimes for years. Children's viewing of media and 
particularly media violence is associated with symptoms of 
posttraumatic stress and with sleep disorders (Singer, et al., 1998; 
Owens, et al., 1999). Long-term fear effects are also common 
consequences of exposure to violence in the news (Applied Research & 
Consulting, 2002; Cantor & Nathanson, 1996; Smith et al., 2002). Many 
young adults report that frightening movie images that they saw as 
children (often on television) have remained on their minds in spite of 
their repeated attempts to get rid of them. They also report feeling 
intense anxieties in nonthreatening situations as a result of having 
been scared by a movie or television program--even though they now know 
that there is nothing to fear (Harrison & Cantor, 1999; Cantor, 2004a). 
Findings are beginning to emerge from research teams mapping the areas 
of the brain that are influenced by violent images, and these studies 
suggest that the viewing of media violence is associated with changes 
in brain circuitry suggesting a predisposition to reduced impulse 
control and the long-term storage of violent images (See Center for 
Successful Parenting, 2003; Matthews, 2002; Murray, 2001a, 2001b; Wang 
et al., 2002).
    There is a broad consensus of scientific researchers that media 
violence exerts unhealthy effects on young viewers. One dissenting view 
of the issue comes from Jonathan Freedman (2002) whose book, ``Media 
Violence and Its Effect on Aggression,'' comes to the conclusion that 
the media violence research is flawed. Professor Freedman acknowledges 
that his review of research was funded by the Motion Picture 
Association of America. (See Cantor, 2002c, for a review of this book, 
which appeared in the Journalism and Mass Communication Quarterly).
(2) What Kinds of Programs are of Greatest Concern?
    To answer this question, one needs to specify which effects are at 
issue. Certain types of violent depictions increase the risk that a 
viewer will behave aggressively, while other types increase the risk of 
anxiety and sleep disturbances. For example, aggressive acts with 
attractive perpetrators who are rewarded for behaving aggressively, and 
for which the consequences to the victim are minimized are likely to 
promote imitation. This type of depiction is common in cartoons and 
slapstick fare and in many crime dramas. In contrast, graphic violence 
against an attractive target is more likely to promote fear. Many 
movies (which are frequently shown on television) contain this type of 
violence. Comic violence is likely to promote imitation and 
desensitization, but unlikely to provoke fear. Although violence that 
is perceived as realistic is generally more likely than fantasy 
violence to produce harmful effects, children up to the age of eight 
are unclear on the fantasy-reality distinction. Therefore, fantasy 
violence can be as harmful to young children as realistic violence. 
(Center for Communication and Social Policy, 1998).
    To give a concrete example of the difficulty of singling out 
depictions as more or less harmful, ``Schindler's List'' has 
appropriately been lauded as a film with an anti-violence theme, and 
one that is unlikely to promote aggression. However, this movie is 
likely to traumatize young viewers, who are not ready to assimilate 
such disturbing images and events. To help maintain their children's 
mental health, parents need as much warning about the presence of 
potentially traumatizing images as they do about aggression-promoting 
depictions. As another example, many people grew up enjoying classic 
cartoons like ``Woody Woodpecker'' and ``The Roadrunner.'' Although 
these cartoons may appear harmless on the surface and are rarely the 
cause of nightmares, research shows that they often prompt imitation 
and promote attitudes favoring violence in young children (Center for 
Communication and Social Policy, 1998).
    Because of the varied types of effects that different types of 
violent depictions have, it would seem difficult to define the types of 
violence that are of particular concern and thereby more subject to 
regulation than others. A more reasonable approach than trying to 
define the types of violence that might be restricted would be to 
provide valid and easily accessible information to parents and other 
consumers so that they might make informed choices, and so that they 
might enforce their choices either by rules within the home or by using 
filtering or blocking devices that would be both easy to program and 
effective.
(3) TV Parental Guidelines and the V-Chip.
    In theory, media ratings and blocking devices are the best ways to 
ensure that parents have the opportunity to exert control over their 
children's access to potentially harmful programs without violating the 
freedom of speech rights of other people. However, research shows that 
we have a long way to go before parents can use these tools 
effectively. Awareness of the TV rating system has declined steadily 
since it was introduced (Woodard, 2000). Many parents still do not 
understand the meanings of the TV ratings, especially those that 
signify violence in children's programs (Bushman & Cantor, 2003). 
Recent research shows not only that many parents who have V-chip-
equipped sets do not know that their set contains the device, but also 
that the V-Chip as currently configured is extremely difficult to 
program (see Jordan & Woodard, 2003, for the most recent data and 
Annenberg Public Policy Center, 2003, for the transcript of a more in-
depth discussion of these issues).
(4) Possible Regulatory Solutions.
    In the absence of a means of defining ``excessively violent 
programming that is harmful to children'' in a consistent way that 
conforms to research findings and is not overly broad, it seems to me 
that improvements in ratings and blocking technologies would be far 
preferable to instituting ``safe harbor'' legislation. To this end, the 
FCC and Congress should seek solutions with the following goals:

        (a) Creating or facilitating a rating system (or rating 
        systems) that accurately denotes problematic content in a way 
        that is easily understood by parents. One approach would be to 
        mandate such a universal rating system for all media. Another 
        approach would be to facilitate the development of multiple 
        rating systems that would allow parents to choose whichever 
        system they find most useful.

        (b) Modifying the V-Chip hardware so that it can accept 
        potential changes in the current rating system and so that it 
        can capacitate a variety of rating systems that might be 
        developed by independent groups.

        (c) Permitting blocking devices to block any type of violent 
        content that is harmful to children. In these days of incessant 
        terror warnings and other traumatic news events, parents should 
        have the option of blocking news programming, and especially 
        breaking-news bulletins and promotional announcements for 
        upcoming news stories. They should also have the option of 
        blocking advertisements for violent movies and other ads that 
        contain violence. This would protect children from being 
        ``ambushed'' by images and materials that even the most 
        vigilant parent would not be able to predict, without 
        interfering with other people's ``right to know.''

        (d) Providing funding for the promotion of information that 
        parents need to protect their children from the harms of media 
        violence, including information about media effects and 
        information about the meaning and use of rating systems and the 
        use of the V-Chip and other blocking technologies. It would 
        certainly be fair for this funding to come from license fees or 
        other charges to the television industry rather than from 
        general tax dollars.
(5) Conclusion.
    Media violence constitutes a severe health threat to our youth, and 
the FCC, acting in the public interest, should move to provide parents 
with the information and tools they need to shield their children from 
some of the harms that might otherwise occur in their own homes by 
exposure to television. The television industry which, along with other 
media industries, typically denies any links to harm and opposes 
measures that help parents protect their children from its products 
(see Cantor, 2002d), should be obliged to cooperate in this effort as 
part of its public interest responsibilities.
    These issues are important and complex, and I would be glad to 
provide further information or answer questions about my comments if 
the Members of the Commission are interested.
                                      Joanne Cantor, Ph.D.,
                                                 Professor Emerita,
                                       University of Wisconsin-Madison.
Sources Cited
    Annenberg Public Policy Center (2003). Television and children's 
media policy: Where do we go from here? Transcript of Roundtable 
Discussion. http://www.annen
bergpublicpolicycenter.org/05_media_developing_child/
childrensprogramming/2003ChildrensMediaPolicyConference_tr.pdf.
    Applied Research and Consulting, LLC, Columbia University Mailman 
School of Public Health, & New York State Psychiatric Institute (2002). 
Effects of the World Trade Center attack on NYC public school students. 
New York, NY: New York City Board of Education.
    Bushman, B.J., & Anderson, C.A. (2001). Media violence and the 
American public: Scientific facts versus media misinformation. American 
Psychologist, 56, 477-489.
    Bushman, B.J., & Cantor, J. (2003). Media ratings for violence and 
sex: Implications for policymakers and parents. American Psychologist, 
58, 130-141.
    Cantor, J. (1998). ``Mommy, I'm scared'': How TV and movies 
frighten children and what we can do to protect them. San Diego, CA: 
Harcourt.
    Cantor, J. (2002a). Fright reactions to mass media. In J. Bryant & 
D. Zillmann (Eds.), Media effects: Advances in theory and research (2d 
ed., pp. 287-306). Mahwah, NJ: Erlbaum.
    Cantor, J. (2002b). The psychological effects of media violence on 
children and adolescents. Paper presented at the Colloquium on 
Television Violence in Society, Centre d'Etudes sur les Medias, HEC 
Montreal, Montreal, Canada. http://joannecantor.com/
montrealpap_fin.htm.
    Cantor, J. (2002c). Review of ``Media Violence and Its Effect on 
Aggression: Assessing the Scientific Evidence'' Journalism and Mass 
Communication Quarterly, 2003, 80, 468. http://joannecantor.com/
freedmanreview.htm.
    Cantor, J. (2002d). Whose freedom of speech is it anyway? Remarks 
at Madison (WI) Civics Club, October 12, 2002. http://joannecantor.com/
Whosefreedom.html.
    Cantor, J. (2004a). ``I'll never have a clown in my house'': Why 
movie horror lives on. Poetics Today, 25, 283-304.
    Cantor, J. (2004b). Teddy's TV Troubles. Madison, WI: Goblin Fern 
Press.
    Cantor, J., & Nathanson, A. (1996). Children's fright reactions to 
television news. Journal of Communication, 46 (4), 139-152.
    Center for Communication and Social Policy, Ed. (1998). National 
television violence study. Thousand Oaks, CA: Sage Publications.
    Center for Successful Parenting (2003). Can violent media affect 
reasoning and logical thinking? http://www.sosparents.org/
Brain%20study.htm.
    Freedman, J. (2002). Media Violence and Its Effect on Aggression: 
Assessing the Scientific Evidence. Toronto: University of Toronto 
Press.
    Harrison, K., & Cantor, J. (1999). Tales from the screen: Enduring 
fright reactions to scary media. Media Psychology, 1 (2), 97-116.
    Huesmann, L.R., Moise-Titus, J., Podolski, C., & Eron, L. (2003). 
Longitudinal relations between children's exposure to TV violence and 
their aggressive and violent behavior in young adulthood: 1977-1992. 
Developmental Psychology, 39, 201-221.
    Johnson, J.G., Cohen, P., Smailes, E.M., Kasen, S., & Brook, J.S. 
(2002). Television viewing and aggressive behavior during adolescence 
and adulthood. Science, 295, 2468-2471.
    Jordan, A., & Woodard, E.H. (2003). Parents' use of the V-Chip to 
supervise children's television use. Presented at the Children and 
Television Media Policy Roundtable Discussion, Annenberg Public Policy 
Center. http://www.annenberg
publicpolicycenter.org/05_media_developing_child/childrensprogramming/
2003
_Parentsuseofvchip.pdf.
    [Matthews, V. P.] (2002). Violent video games trigger unusual brain 
activity in aggressive adolescents. http://jol.rsna.org/pr/
target.cfm?ID=94.
    Murray, J.P. (2001a, April). Children's Brain Response to TV 
Violence: Functional Magnetic Resonance Imaging (fMRI) of Video Viewing 
in 8-13 Year-Old Boys and Girls. Presentation at the Biennial Meeting 
of the Society for Research in Child Development.
    Murray, J.P. (2001b). TV violence and brainmapping in children. 
Psychiatric Times, XVIII (10).
    Owens, J., Maxim, R., McGuinn, M., Nobile, C., Msall, M., & Alario, 
A. (1999). Television-viewing habits and sleep disturbance in school 
children. Pediatrics, 104 (3), 552, e 27.
    Singer, M.I., Slovak, K., Frierson, T., & York, P. (1998). Viewing 
preferences, symptoms of psychological trauma, and violent behaviors 
among children who watch television. Journal of the American Academy of 
Child and Adolescent Psychiatry, 37 (10), 1041-1048.
    Smith, S.L., Moyer, E., Boyson, A.R., & Pieper, K.M. (2002). 
Parents' perceptions of their children's fear reactions to TV news 
coverage of the terrorists' attacks. In B. Greenberg, (Ed.), 
Communication and terrorism. (pp. 193-209). Cresskill, NJ: Hampton 
Press.
    Wang et al., (2002, December). Effects of violent media on 
adolescents with disruptive behavior disorder as compared to control 
subjects: MRI activation patterns in frontal lobe. Paper presented at 
the 88th Scientific Assembly and Annual Meeting of the Radiological 
Society of North America.
    Woodard, E.H. (2000). Media in the home 2000: The fifth annual 
survey of parents and children. Philadelphia: Annenberg Public Policy 
Center.
                                 ______
                                 
                             American Civil Liberties Union
                                                      June 26, 2007
Hon. Daniel K. Inouye,
Chairman,
Committee on Commerce, Science, and Education,
Washington, DC.

Hon. Ted Stevens,
Vice Chairman,
Committee on Commerce, Science, and Education,
Washington, DC.

     Re: Senate Hearing on The Impact of Media Violence on 
                                                   Children

Dear Senators Inouye and Stevens:
    On behalf of the American Civil Liberties Union (ACLU), and its 
hundreds of thousands of members, activists, and fifty-three affiliates 
nationwide, we urge you to reject any proposals that would allow the 
Federal Communications Commission to regulate violence on television. 
The FCC's recent report suggests taking that overwhelmingly parental 
right and placing it impermissibly in the hands of politicians.
    The American Civil Liberties Union is committed to preserving and 
protecting free speech and the First Amendment and strongly believes 
that the government should not replace parents as decisionmakers in 
America's living rooms. There are some things the government does well, 
but deciding what is aired and when on television is not one of them. 
Parents already have many tools to protect their children, including 
blocking programs and channels, changing the channel, or turning off 
the television. If we need to provide parents with more effective tools 
and/or a better understanding of how to use the tools that are 
available to them, our focus should be on making those educational 
opportunities available--not encouraging government to replace 
America's parents as the primary decisionmakers in their own homes. 
Government should not parent the parents.
    The Federal Communication Commission's April 2007 Report on Violent 
Television and its Impact on Children erroneously concluded that under 
Supreme Court precedent allowing regulation of indecency in the media, 
Congress has a legal basis to regulate violent television content. The 
Report further recommended that Congress take action to address violent 
programming, including limiting violence to specific hours of the day 
or forcing cable and satellite operators to sell their channels on an a 
la carte basis.\1\
---------------------------------------------------------------------------
    \1\ In the Matter of Violent Television Programming and Its Impact 
on Children, FCC 07-50, 22 FCCR 7929, MB 04-261 at 3 (April 25, 2007).
---------------------------------------------------------------------------
    The ACLU repeatedly has voiced its concern over both the 
constitutionality of governmental regulation of violent programming and 
the adequacy of the research that the FCC uses to justify regulation. 
Our concern is that imposing standards for television violence would be 
unconstitutional and damage numerous important values that define 
America: the right to a free and open media, the right to free speech 
and the right of parents to control the upbringing of their children.
Parents Have the Power to Control What Their Kids Watch
    Parents play a central role in the lives of their children. Today, 
they have unprecedented capability to control what comes into their 
homes and what media their children consume. Aside from the ability to 
just turn off the TV, parents can use the many forms of technology 
available to them to block channels and programs.
    The tools available to parents are many and varied. The most basic 
and user-friendly tool every parent has against unwanted media content 
is the ability to turn the television off, or to establish rules about 
where and when children may watch TV. Current technology augments 
parental ability to block unwanted content. Television ratings provide 
a baseline for predicting objectionable content in upcoming shows. The 
V-chip, a standard feature in all televisions 13 inches and larger 
since January 2000, allows viewers to block specific programs based on 
ratings; multiple websites, including the FCC's own site, provide 
detailed instructions and tutorials on how to use the V-chip. Cable and 
Satellite television subscribers can block individual channels using 
either analog or digital set-top boxes.
    Recent technology in digital boxes permits blocking by rating, 
channel, title, and even, in some systems, program description. Cable 
subscribers that do not have set-top boxes can simply ask their cable 
companies to block specific channels that they do not want in their 
homes. Additionally, a multitude of websites rate television shows, 
permitting parents to choose one that suits their individual taste and 
use those ratings to determine what their children watch.
    The Supreme Court has vigorously underscored the vital role parents 
play in determining what media content enters their homes. Importantly, 
the Court has emphasized that parental action and available technology 
do not have to be perfect to be preferable to governmental action, 
specifically stating that ``[i]t is no response that voluntary blocking 
requires a consumer to take action, or may not go perfectly every time. 
A court should not assume a plausible, less restrictive alternative 
would be ineffective; and a court should not presume parents, given 
full information, will fail to act.'' \2\ The Courts have recognized 
that parents already have all of the technology they need to block 
unwanted media content from their homes, and have made clear that the 
responsibility remains on the parents to actually use those controls 
available to them.
---------------------------------------------------------------------------
    \2\ United States v. Playboy, 529 U.S. 803, 824 (2000).
---------------------------------------------------------------------------
    Such technology enables and facilitates precision in parental 
efforts to monitor the media content that enters their home. 
Nevertheless, the FCC's Report declared current technology ineffective 
based on limited consumer use. However, limited consumer use of these 
technologies does not render the current technology unworkable or 
inadequate; rather, it indicates areas for more consumer education, 
awareness, and improvement.
    The government may have a role in educating parents about media 
literacy, and assisting them in finding tools that better help them 
analyze and evaluate what they see.
    Congress could consider passing legislation to better educate 
parents and children and ensure that parents are able to use the tools 
and the technologies that are already available to them. The solution 
is to teach parents to use the tools at their disposal more often and 
more effectively, as they see fit. If parents are upset by what they 
see on television, they have the power to change the channel, turn off 
the TV, or block the station. Monitoring television habits and 
determining what content is and is not appropriate should be made in 
the home, not by government officials in Washington, D.C.
Studies on Media Violence Causing Actual Violence Are, at Best, 
        Inconclusive
    The FCC's Report presents a slanted view of the studies on exposure 
to media violence to support its erroneous contention that there is a 
substantial governmental interest in regulating violence. Though the 
Report mentions the FTC's 2000 Report,\3\ the FCC fails to reference 
the Study's more important Appendix A, which reviewed and analyzed the 
available research on the impact of violence in the entertainment 
media. Regarding causation, the FTC noted that ``[m]ost researchers and 
investigators agree that exposure to media violence alone does not 
cause a child to commit a violent act, and that it is not the sole, or 
even the most important, factor in contributing to youth aggression, 
anti-social attitudes, and violence.'' Rather, the FTC stated that the 
research on causation had identified ``interacting risk factors, such 
as genetic, psychological, familial, and socioeconomic 
characteristics.''
---------------------------------------------------------------------------
    \3\ Marketing Violent Entertainment to Children: A Review of the 
Self-Regulation and Industry Practices in the Motion Picture, Music 
Recording & Electronic Game Industries: A Report of the Federal Trade 
Commission (Sept. 2000).
---------------------------------------------------------------------------
    Such a finding is in line with the brief submitted on behalf of 33 
media scholars in the case of Interactive Digital Software Association 
v. St. Louis in 2002, which the FCC never mentioned.\4\ Those scholars 
stated that ``[i]f one conclusion is possible, it is that the jury is 
not still out. It's never been in. Media violence has been subjected to 
a lynch mob mentality, with almost any evidence used to prove guilt.'' 
Actual violent crime statistics provide support for these findings and 
statements, and demonstrate that the conclusion that media violence 
causes actual violence is intuitively incorrect. While media violence 
was increasing, the violent crime rate--specifically the juvenile crime 
rate--was decreasing throughout the 1990s, according to FBI statistics. 
If media violence was a causative factor, one would expect to see a 
rise in violent crime, rather than a decrease.
---------------------------------------------------------------------------
    \4\ The brief was submitted to the FCC as an attachment to the 
ACLU's Comment on Notice of Inquiry, MB Docket No. 04-261; In the 
Matter of Violent Television Programming And Its Impact on Children, 
dated Spetember 14, 2004.
---------------------------------------------------------------------------
    Notably, courts examining allegations that violent video games 
cause actual violence have been unconvinced by the data, holding laws 
restricting minors' ability to obtain violent video games 
unconstitutional.\5\ State efforts to restrict youth's access to 
violent video games attempted to use a similar framework as that 
recommended by the FCC for media violence: equate violence with 
indecency. The courts, however, have insisted that violence and 
indecency are distinct types of speech. \6\
---------------------------------------------------------------------------
    \5\ See e.g., Kendrick, 244 F.3d at 575 (``[N]o showing has been 
made that games of the sort found in the record of this case have [the 
effect of inciting youthful players to breaches of the peace]''.).
    \6\ Id. at 574.
---------------------------------------------------------------------------
    It has become clear that there is no one single factor that causes 
violence; the causes of violence are many and varied and the problem is 
complex. We urge Congress to reject any proposals that would allow the 
Federal Communications Commission to regulate violence on television. 
Any attempt to force ``violence'' into a ``safe harbor'' would be 
unwise, unconstitutional and would ignore the root causes of violence.
    There is a long history of using the media as a scapegoat for 
society's problems. At one time or another, books, movies, opera, jazz, 
blues, rock `n roll, heavy metal and rap music, comic books, and video 
games have all been accused of causing antisocial or violent behavior 
among minors and adults. Crime statistics do not support these claims. 
Despite the explosive growth of the media in the 1990s, which included 
allegedly increased violence on television and in video games, crime in 
general (and youth crime in particular) declined.
    It would be virtually impossible for the government to create a 
definition of violence that would allow ``acceptable'' violence and 
would restrict ``unacceptable'' violence.
    Assumptions about the negative effects of viewing violence ignore 
the positive societal value of certain violent programs that teach us 
important lessons about history or call attention to problems society 
must address. ``Roots'' was a national television event of enormous 
educational value that necessarily showed the brutality of the 
institution of slavery. The made-for-television movie ``The Burning 
Bed'' was credited with bringing about reform of existing spousal-abuse 
laws and included what some would call disturbingly violent scenes. 
``Saving Private Ryan'' was a powerful move about the horrors of war, 
and included many disturbing scenes to illustrate that point.
    Shielding children from all violence ignores reality and ill-
prepares them for participation in a world that embraces violence. As 
one court striking down regulations of violent video games wrote, 
history, most notably ``the murderous fanaticism displayed by young 
German soldiers in World War I'', aptly illustrates the danger of 
allowing the government to control children's access to information and 
opinion, depriving them of the ``freedom to form their political views 
on the basis of uncensored speech'' before they turn eighteen and are 
able to vote.\7\ ``People are unlikely to become well-functioning, 
independent-minded adults and responsible citizens if they are raised 
in an intellectual bubble. . . . To shield children right up to the age 
of 18 from exposure to violent descriptions and images would not only 
be quixotic, but deforming; it would leave them unequipped to cope with 
the world as we know it.'' \8\
---------------------------------------------------------------------------
    \7\ American Amusement Machine Ass'n v. Kendrick, 244 F.3d 572, 
576-577 (7th Cir. 2001).
    \8\ Id. at 577.
---------------------------------------------------------------------------
    Since not all portrayals of violence are bad, the government would 
have insurmountable difficulty defining what is ``good'' violence and 
``bad'' violence. Even those who research this issue use inconsistent 
definitions of violence. If the researchers cannot concur on an 
objective definition, then will any regulations or ratings provide 
truly objective results that please all parents?
    Similar to concerns about the feasibility of defining violence, one 
court noted that the FCC's indecency test was ``undefined, 
indiscernible, inconsistent, and consequently, unconstitutionally 
vague.'' \9\ Specifically, the court used the example of ``Saving 
Private Ryan'', in which repeated use of four letter words was not 
considered indecent, profane, or gratuitous. In comparison, a single 
use of those same words was considered ``shocking and gratuitous'' when 
used at the Golden Globes.\10\ The inconsistent standard in defining 
``indecency'' created an impermissible ``chilling effect on free 
speech.'' \11\ Likewise, adequately defining ``violence'' will present 
similar unconstitutional chilling effects.
---------------------------------------------------------------------------
    \9\ Fox Television Stations, Inc. V. Federal Commc'n Comm'n, No. 
06-1760-AG (L), 2007 WL 1599032, at *15 (2d Cir. June 4, 2007). Note 
that the indecency regime that the court found impermissibly vague was 
the basis for the FCC's conclusion it had the authority to regulate 
violence on television. Thus, that conclusion is also suspect.
    \10\ Id.
    \11\ Id. at *15-16.
---------------------------------------------------------------------------
    It would be virtually impossible for the government to create a 
definition of violence that would allow ``acceptable'' violence and 
would restrict ``unacceptable'' violence. Any such definition likewise 
would be indiscernible and inconsistent, and would chill speech by 
requiring broadcasters to ``steer far wider of the unlawful zone'' and 
would thus violate the First Amendment.\12\
---------------------------------------------------------------------------
    \12\ Speiser v. Randall, 357 U.S. 513, 526 (1958).
---------------------------------------------------------------------------
FCC Recommendations for Regulation Violate Constitutionally Protected 
        Expression
    Courts have found that violent speech and violent depictions are 
protected by the First Amendment.\13\ The Supreme Court has determined 
in several cases that ``speech that many citizens find shabby, 
offensive, or even ugly'' is still protected. The First Amendment makes 
it clear that the government should have no power to restrict 
expression because of its messages, its ideas, its subject matter, or 
its content.\14\ Moral and aesthetic judgments are for the individual 
to make, not the government, even with a mandate or approval of a 
majority.\15\
---------------------------------------------------------------------------
    \13\ FCC Report at 11 (citing Winters v. New York, 333 U.S. 507, 
510 (1948)).
    \14\ Police Dep't v. Mosley, 408 U.S. 92, 95 (1972).
    \15\ Playboy, 529 U.S. at 818.
---------------------------------------------------------------------------
    The overriding justification for regulation of television violence 
``is the concern for the effect of the subject matter on young 
viewers.'' \16\ Clearly, any such regulation by the government would be 
content-based. Content-based speech restrictions are subject to strict 
scrutiny. Strict scrutiny requires that any content-based speech 
regulation must be narrowly tailored to promote a compelling government 
interest. If a less restrictive alternative would serve the 
Government's purpose, it must use that alternative.\17\
---------------------------------------------------------------------------
    \16\ Id. at 811.
    \17\ Id. at 813.
---------------------------------------------------------------------------
    The FCC's reliance on the 1978 decision in FCC v. Pacifica 
Foundation as authority to regulate media violence is outdated. The 
Pacifica Court premised its holding on reduced First Amendment 
protection for broadcasting, permitting restrictions based on 
substantial--not compelling--governmental interests. The Pacifica Court 
reasoned that the lower standard was proper because of the medium's 
``uniquely pervasive'' presence in the lives of all Americans'' and on 
its accessibility to children, coupled with the government's interests 
in the well-being of children and in supporting parental supervision of 
children.'' \18\
---------------------------------------------------------------------------
    \18\ FCC v. Pacifica Found., 438 U.S. 726, 748-50 (1978).
---------------------------------------------------------------------------
    A recent Second Circuit Court decision rejected the FCC's 
continuing reliance on Pacifica in light of the substantial 
advancements in technology. The court went so far as to state that it 
would be ``remiss not to observe that it is increasingly difficult to 
describe the broadcast media as uniquely pervasive and uniquely 
accessible to children.'' \19\ The proliferation of satellite channels, 
cable television channels, and the Internet ``ha[ve] begun to erode the 
`uniqueness' of broadcast media.'' \20\ At the same time, ``blocking 
technologies such as the V-Chip have empowered viewers to make their 
own choices about what they do, and do not, want to see on 
television.'' \21\
---------------------------------------------------------------------------
    \19\ Fox v. FCC, 2007 WL 1599032, at *17.
    \20\ Id. at *18.
    \21\ Id.
---------------------------------------------------------------------------
    Similarly, the Supreme Court's Playboy decision distinguished 
Pacifica on the grounds that ``[c]able systems have the capacity to 
block unwanted channels on a household-by-household basis.'' Therefore, 
``the option to block reduces the likelihood, so concerning to the 
court in Pacifica, that traditional First Amendment scrutiny would 
deprive the Government of all authority to address this sort of 
problem.'' The FCC's regulatory powers are bounded by the Constitution, 
and the Courts have recognized that technology has changed the role 
Government can play.
    The Supreme Court has specifically recognized that cable technology 
permits a level of control over media content that was not contemplated 
by the Pacifica Court. The Court in Playboy dealt with a statute 
requiring cable providers either to completely scramble sexually 
explicit or indecent channels or limit the programming on such channels 
to a 10 p.m. to 6 a.m. ``safe harbor'' time period in order to shield 
children.\22\ The Supreme Court struck down these provisions of the 
statute because less restrictive alternatives allowing consumers to 
block those channels existed, stating that ``targeted blocking is less 
restrictive than banning, and the Government cannot ban speech if 
targeted blocking is a feasible and effective means of furthering its 
compelling interests.\23\ The Court stated that ``these judgments are 
for the individual to make, not for the Government to decree, even with 
the mandate or approval of a majority. Technology expands the capacity 
to choose; and it denies the potential of this revolution if we assume 
the Government is best positioned to make these choices for us.'' \24\
---------------------------------------------------------------------------
    \22\ Playboy, 529 U.S. at 806.
    \23\ Id. at 809-810, 815.
    \24\ Id. at 818.
---------------------------------------------------------------------------
    Courts have rejected the FCC's very arguments regarding the 
ineffectiveness of current technology as a reason to impose further 
regulation. In Fox, the FCC argued that the V-Chip was an ineffective 
alternative, because ``in its view, few televisions feature a V-Chip, 
most parents do not know how to use it, programs are often inaccurately 
rated, and fleeting expletives could elude V-Chip blocking even if the 
show during which they occurred was otherwise accurately labeled.'' 
\25\ The Court concluded that ``[i]f the Playboy decision is any guide, 
technological advances may obviate the constitutional legitimacy of the 
FCC's robust oversight.'' \26\
---------------------------------------------------------------------------
    \25\ Fox v. FCC, 2007 WL 1599032, at *18.
    \26\ Id.
---------------------------------------------------------------------------
Conclusion
    Parents have the tools they need to protect their children. If the 
government steps in and regulates the content of television shows or 
relegates certain shows to a late-night or early morning hour, it steps 
over the line and begins to parent the parents--replacing parents as 
the ultimate decisionmakers in their children's lives.
    The FCC's findings on violence provide a disputable basis for a 
governmental interest in regulation. Recent court decisions, ignored by 
the FCC in its report, clearly show that in light of the current 
technologies enabling parents to control content precisely and through 
a variety of mechanisms, the government will need to demonstrate a 
compelling basis before it can regulate media content [note that the 
FCC didn't ignore the Fox v. FCC decision--it came out June 4 (and its 
statements on constitutionality are dicta)--LB]. In addition, the means 
of regulation will have to be narrowly tailored. It is obvious that the 
time channeling and a la carte solutions suggested by Congress are 
neither the most effective ways of protecting children nor the most 
narrowly tailored means of achieving protection constitutionally.
    The most effective and most precise mechanisms are those already 
available to all parents. The power to control the upbringing of their 
children, including what they watch should remain in the most capable, 
effective, and constitutional hands possible: the parents'.
    If you have any questions, please do not hesitate to call Terri 
Schroeder.
            Sincerely,
                                      Caroline Fredrickson,
                                                          Director.
                                           Terri Schroeder,
                                                   Senior Lobbyist.
                                 ______
                                 
     Prepared Statement of the National Association of Broadcasters
    The National Association of Broadcasters (``NAB'') submits for the 
record this statement concerning the constitutionality of potential 
legislation restricting programming with violent content on broadcast 
television. NAB is a trade association that advocates on behalf of more 
than 8,300 free, local radio and television stations and also broadcast 
networks before Congress, the Federal Communications Commission and 
other Federal agencies, and the Courts.
Introduction and Summary
    While NAB and its member stations understand that some television 
viewers do not want to see certain violent content and also that some 
violent images may not be appropriate for young children, we 
respectfully urge Congress to resist calls to adopt legislation barring 
broadcast of some violent content except during late night hours. As 
the courts have concluded in numerous contexts, governmental attempts 
to censor violent content are fraught with constitutional problems 
under the First Amendment, the bedrock of our democracy. Thus, there 
are competing principles at stake, and Congress must be especially 
careful to avoid overreaching in this constitutionally sensitive area. 
Specifically, Congress must recognize that this is an area where 
parents are much better positioned than the government to decide what 
kinds of television programs are appropriate for their children.
    Currently, a broad and growing range of tools are available to help 
parents guide their children's television-viewing habits. The 
television industry is, moreover, now conducting an extensive campaign 
to educate parents on how they can use these many tools to control 
effectively their children's television consumption. Adopting 
legislation directly regulating violent material on television--
especially at a time when consumers have unprecedented control over the 
video programming that enters their homes--would impermissibly 
substitute the government's judgment for that of parents, while also 
interfering with the right of adults to watch what they want.
    A law dictating that certain violent content may not be broadcast 
on television except late at night is very likely to be struck down by 
the courts. To begin with, it is virtually impossible to formulate a 
constitutionally acceptable definition of the type or types of violent 
programming that should be banned from television during most hours. It 
is not an accident that no law on the books in any state or at the 
Federal level restricts violent content. Every attempt to do so--in the 
context of videos, trading cards, books, and video games--has been 
struck down by the courts, in part because every definition of targeted 
violent content runs into problems with vagueness and overbreadth. 
Regulations targeting depictions of violence--which are fully protected 
speech under the First Amendment--would meet the same fate.
    Leaving aside the definitional problem, a law regulating depictions 
of violence on broadcast television would single out a particular 
category of protected speech for disfavored treatment. That kind of 
discriminatory burden on speech is directly at odds with fundamental 
First Amendment principles, and courts have consistently subjected 
content-based laws to the strictest form of constitutional scrutiny. 
The justifications for regulation that could be offered here are far 
too weak to satisfy such scrutiny. Prior cases, principally involving 
attempts to regulate distribution of violent video games to minors, 
illustrate the problem: the social scientific studies on the effects of 
exposure to violent material are far too thin a reed to justify 
content-based regulation of fully protected speech.
    Some have suggested that the government may nevertheless impose 
content-based restrictions in the context of over-the-air television 
broadcasts, citing to the Supreme Court's decision in Pacifica. But 
that decision has never been expanded beyond the narrow context of so-
called ``indecent'' programming, and provides no support for the 
government to take the unprecedented step of censoring images of 
violence. Indeed, there are serious questions about whether Pacifica is 
viable anymore, even in the context of indecency. There remains little, 
if any, reason to treat the content of broadcast television programs 
differently, in terms of First Amendment protection, from the content 
of other programming delivered alongside broadcast stations over cable 
and satellite systems. To the contrary, courts are likely to conclude 
that broadcast television is entitled to the same level of strong First 
Amendment protection. And there is no question that proposed 
restrictions on televised depictions of violence would fail strict 
First Amendment scrutiny.
    In short, we understand parents' desire to ensure that their 
children are not exposed to televised content, including violent 
images, they believe inappropriate. But particularly in light of the 
myriad technological and other alternatives for consumers to control 
the television programming entering their homes, the Constitution 
forbids Congress from seeking to empower parents by censoring speech.
Analysis
I. Any Attempt to Define a Regulated Category of Violent Depictions 
        Will Prove 
        Unworkable and Thus Unconstitutional
    In a recent report, the Federal Communications Commission suggested 
``that developing an appropriate definition of excessively violent 
programming would be possible.'' \1\ Notably, the FCC itself did not 
propose a definition, despite having considered the issue for 3 years. 
This is not surprising, because court after court has rejected state 
and local laws regulating depictions of violence, in part because of 
the definitional problem. As these courts have recognized, attempts to 
define the kind of violence that the government thinks may be harmful 
inevitably result in overbroad and vague laws. As applied to 
television, such definitions would produce a chilling effect on 
valuable expression that legislators did not intend to affect.
---------------------------------------------------------------------------
    \1\ Violent Television Programming And Its Impact On Children, 
Report, FCC 07-50 at  44 (rel. April 25, 2007) (``Report'').
---------------------------------------------------------------------------
    Under the well-established vagueness doctrine, statutes must be 
drafted with ``sufficient definiteness that ordinary people can 
understand what conduct is prohibited.'' Kolender v. Lawson, 461 U.S. 
352, 357 (1983); see Grayned v. City of Rockford, 408 U.S. 104, 108 
(1972). Where protected expression is regulated, the Constitution 
requires special precision, because of the potential for chilling 
speech. See Reno v. ACLU, 521 U.S. 844, 871-72 (1997); NAACP v. Button, 
371 U.S. 415, 433 (1963). The First Amendment overbreadth doctrine, 
moreover, prohibits broadly-worded laws that restrict a substantial 
amount of protected speech. See Reno, 521 U.S. at 874; Ashcroft v. Free 
Speech Coalition, 535 U.S. 234, 254-55 (2002).
    Proponents of regulating violence on broadcast television will 
certainly argue that it is possible to define violent content in a way 
that passes constitutional muster. But the clear judicial record shows 
otherwise. The courts have unanimously rejected attempts to censor 
violent content despite numerous approaches to defining such content.
    Winters v. New York. Judicial rejection of state attempts to 
regulate violent content began nearly 60 years ago, when, in Winters v. 
New York, 333 U.S. 507 (1948), the Supreme Court struck down as vague a 
law restricting ``true crime'' novels. In so ruling, the Court stated 
that violent speech is ``as much entitled to the protection of free 
speech as the best of literature.'' Winters, 333 U.S. at 510. The Court 
found the New York statute's terms--which prohibited tales of criminal 
deeds of bloodshed and lust `` `so massed as to become vehicles for 
inciting violent and depraved crimes against the person,' '' id. at 
518-19--to be ``too uncertain and indefinite.'' Id. at 519. The Court 
noted that the statute could be used to punish valuable stories and 
photographs, and that it would be impossible for people to determine 
which types of stories were banned by the law. Id. at 519-20.
    Modified Obscenity Standards. More recently, the courts have 
rejected laws regulating violence using terms modeled on the doctrine 
of obscenity. Sexual speech may be regulated as ``obscene'' if (1) it 
predominantly appeals to the prurient interest; (2) it depicts sexual 
conduct specifically defined by the applicable law in a manner that is 
patently offensive; and (3) taken as a whole, it lacks serious 
literary, artistic, political, or scientific value. Miller v. 
California, 413 U.S. 15, 24 (1973). In addition, a similar ``harmful to 
minors'' standard permits the government to restrict minors' access to 
certain sexually explicit speech. See Ginsberg v. New York, 390 U.S. 
629, 638 (1968).
    The FCC Report suggested that images of violence on broadcast 
television may be regulated using at least some of the parts of the 
obscenity standard. See Report  44. But, that suggestion is at odds 
with the Supreme Court's decision in Winters v. New York, which stated 
that violent material is not ``indecen[t] or obscen[e] in any sense . . 
. known to the law.'' 333 U.S. at 519. And numerous recent attempts to 
restrict violent video games and other materials using a modified 
obscenity approach have been rejected by the courts. See Interactive 
Digital Software Ass'n v. St. Louis County, 329 F.3d 954 (8th Cir. 
2003) (``IDSA'') (striking down law that restricted video games deemed 
``harmful to minors,'' defined according to the three-part test for 
obscenity as to minors); American Amusement Mach. Ass'n v. Kendrick, 
244 F.3d 572, 574-75 (7th Cir. 2001) (``AAMA'') (rejecting video game 
law's attempt to ``squeeze the provision on violence into a familiar 
legal pigeonhole, that of obscenity''); Eclipse Enterprises, Inc. v. 
Gulotta, 134 F.3d 63, 67 (2d Cir. 1997) (rejecting attempt to restrict 
trading cards depicting ``heinous crimes'' under a harmful to minors 
standard, holding that ``the standards that apply to obscenity are 
different from those that apply to violence'' because ``[o]bscenity is 
not protected speech.''); Video Software Dealers Ass'n v. Webster, 968 
F.2d 684, 687 (8th Cir. 1992) (striking down ban on violent videos that 
incorporated definition for obscenity, holding that law violated First 
Amendment and was unconstitutionally vague); Entertainment Software 
Ass'n v. Foti, 451 F. Supp. 2d 823 (M.D. La. 2006) (striking down as 
unconstitutionally vague violent video game law that incorporated 
three-part harmful to minors standard); Entertainment Software Ass'n v. 
Granholm, 426 F. Supp. 2d 646, 652, 655 (E.D. Mich. 2006) (invalidating 
violent video game law as vague and not governed by the harmful to 
minors standard of Ginsberg).
    There is no reason to expect a different result when it comes to 
televised violence. In contrast to the age-old concern with limiting 
depictions of obscene sexual images, ``[t]he notion of forbidding not 
violence itself, but pictures of violence, is a novelty.'' AAMA, 244 
F.3d at 575-76; see also IDSA, 329 F.3d at 958; Webster, 968 F.2d at 
687; Gulotta, 134 F.3d at 67; Granholm, 426 F. Supp. 2d at 652. 
Moreover, as a practical matter, the attempt to solve the vagueness 
problem by using obscenity phraseology does not work. In Webster, for 
instance, the Eighth Circuit held that the terms used in the harmful-
to-minors standard had no definite meaning in the context of depictions 
of violence, such that video dealers could only guess at which videos 
were subject to the law's restrictions; 968 F.2d at 687; accord Foti, 
451 F. Supp. 2d at 836 (striking down as vague a video game statute 
employing a harmful-to-minors standard, because the statute ``fails to 
provide specific definitions of prohibited conduct: many of its terms, 
such as `morbid interest,' have no clear meaning; and there is no 
explanation of crucial terms such as `violence' ''); Granholm, 426 F. 
Supp. 2d at 648-49, 655-56.
    Specifying Particular Depictions. Courts have also rejected 
attempts to create a workable definition of proscribed ``violent'' 
content by enumerating the specific depictions of violence that are 
forbidden. Thus, in Granholm, the Michigan district court held that a 
law restricting video games containing ``graphic depictions of physical 
injuries or physical violence against parties who realistically appear 
to be human beings'' was unconstitutionally vague; 426 F. Supp. 2d at 
655; see also Entertainment Software Ass'n v. Blagojevich, 404 F. Supp. 
2d 1051, 1077 (N.D. Ill. 2005). These decisions cast serious doubt on 
the Report's suggestion that a regulation could be created that 
restricted only patently offensive depictions of ``severed or mutilated 
human bodies or body parts,'' for example. Report  42. To begin with, 
there is no empirical support for the proposition that these depictions 
are especially harmful as compared with other violent images. Moreover, 
the terms suggested by the Report are necessarily vague and raise even 
more questions. For instance, would such a regulation apply to 
documentaries or news programs demonstrating medical procedures or 
depicting amputees? What about cartoons showing ``severed'' body parts, 
where the fictional character is put back together again? What about 
news depictions of war or suicide bombings? Would it prohibit the 
televising of Shakespeare's plays, such as King Lear, which include 
this type of violence?
    Adding Adjectives. Nor does the use of certain adjectives, such as 
``extensive or graphic'' or ``realistic,'' Report  44, solve the 
vagueness problems. These terms can only leave broadcasters guessing. 
Does ``graphic'' include a nature program's images of a lion killing 
its prey? What about footage from the Iraq war? And does ``realistic'' 
violence include professional football, hockey or boxing telecasts? 
Does it include humorous footage of a fight shown on America's Funniest 
Home Videos? \2\ Questions like these have prompted courts to strike 
down laws using similar adjectives to define the category of violence 
being regulated. See Software Dealers Ass'n v. Maleng, 325 F. Supp. 2d 
1180, 1190-91 (W.D. Wash. 2004) (lack of clarity as to when a game was 
``realistic'' or when conflict was sufficiently ``aggressive''); 
Granholm, 426 F. Supp. 2d at 655 (invalidating a statute restricting 
video games containing ``extreme and loathsome violence'').
---------------------------------------------------------------------------
    \2\ See Parents Television Council, Dying to Entertain: Violence on 
Prime Time Broadcast Television 1998 to 2006 at 8 (Jan. 2007) (citing 
episode of America's Funniest Home Videos as violent content).
---------------------------------------------------------------------------
    Incorporating Voluntary Ratings. Finally, attempting to incorporate 
the broadcasters' own voluntary rating system as a way to define what 
kinds of programs may be regulated would not solve the constitutional 
problems. The existing rating system is intended as a guide for parents 
and viewers--not as a basis for government regulation. And 
incorporating a rating system only raises other constitutional 
problems, as it improperly delegates government authority to private 
organizations. Thus, a recent attempt by Minnesota to ban minors from 
purchasing video games rated ``M'' or ``AO'' by the video game 
industry's voluntary rating board was struck down because, among other 
things, it improperly delegated authority to ``a private body with no 
duty to answer to the public.'' Entertainment Software Ass'n v. Hatch, 
443 F. Supp. 2d 1065, 1070 (D. Minn. 2006). And earlier attempts to 
incorporate the MPAA's movie rating system into laws regulating speech 
were similarly invalidated. E.g., Swope v. Lubbers, 560 F. Supp. 1328, 
1334 (W.D. Mich. 1983); Engdahl v. City of Kenosha, 317 F. Supp. 1133 
(E.D. Wisc. 1970); Motion Picture Ass'n of Am. v. Specter, 315 F. Supp. 
824 (E.D. Pa. 1970). Further, any requirement that broadcasters submit 
their programs to a ratings board before they can be screened would be 
a classic example of a ``prior restraint,'' which is constitutional in 
only the most limited circumstances. See, e.g., Freedman v. Maryland, 
380 U.S. 51, 57-60 (1965).
          * * * * * * *
    In short, it is not surprising that the FCC was not able to come up 
with even a proposal of how to define the violent content to be 
regulated, as every previous attempt has been rejected by the courts as 
hopelessly vague and overbroad. This is not simply a matter of a 
failure of imagination. Rather, it illustrates the inherent problem 
with having the government try to pick and choose what kind of 
television shows--or movies or video games or novels--people are 
permitted to watch or read. As Commissioner Adelstein observed, quoting 
an article by then-D.C. Circuit Chief Judge Harry Edwards, `` `any 
regulation of television violence confronts an inherent tradeoff 
between precision and effectiveness,' and `any restriction in this area 
that is neither overbroad nor vague will leave unregulated so much 
violent programming that it will no longer accomplish a compelling 
interest.' '' Report at 32 (statement of Commissioner Adelstein, 
approving in part and concurring in part) (quoting Harry T. Edwards & 
Mitchell N. Berman, Regulating Violence on Television, 89 Nw. U.L. Rev. 
1487, 1502-03, 1555 (1995)).
II. Even Apart From the Definitional Issues, Restrictions on Violent 
        Television 
        Programming Would Not Survive Constitutional Scrutiny
    Even if Congress somehow managed to define restricted violence in a 
manner that was neither vague nor overbroad (and as just discussed, it 
cannot), the restrictions would still be almost certain to fail 
substantive constitutional scrutiny.

        A. Restrictions on violent television programming would be 
        subject to exacting scrutiny by the courts.

    As a threshold matter, televised depictions of violence are fully 
protected speech. The protections of the First Amendment extend to all 
expressive forms of entertainment. See, e.g., Schad v. Borough of Mount 
Ephraim, 452 U.S. 61, 65 (1981); Hurley v. Irish-American Gay, Lesbian 
& Bisexual Group of Boston, 515 U.S. 557, 569 (1995). Moreover, violent 
speech is not one of the few enumerated categories of speech (such as 
obscenity) that receive no First Amendment protection. It could hardly 
be otherwise, given the pervasiveness of violence in classic film 
(Saving Private Ryan, Raging Bull), theater (A Streetcar Named Desire; 
Oedipus Rex), and literature (War and Peace; The Iliad). Thus, the 
Supreme Court has stated that, as a general matter, violent speech is 
``as much entitled to the protection of free speech as the best of 
literature.'' Winters v. New York, 333 U.S. 507, 510 (1948). Indeed, 
even express advocacy of violent action can be regulated under only the 
narrowest of circumstances. See Brandenburg v. Ohio, 395 U.S. 444, 447 
(1969).
    The Commission is therefore incorrect that ``if properly defined, 
excessively violent programming, like indecent programming, occupies a 
relatively low position in the hierarchy of First Amendment values 
because it is of `slight social value as a step to truth.' '' Report  
25 (citations omitted). That is not the law. It follows that any 
regulation targeting depictions of violence would be content-based, and 
thus would ordinarily be subject to strict scrutiny. See, e.g., United 
States v. Playboy Entm't Group, 529 U.S. 803, 813 (2000).\3\ and laws 
rarely, if ever, survive strict scrutiny under the First Amendment.\4\
---------------------------------------------------------------------------
    \3\ The fact that the goal is to protect minors would not lower the 
applicable level of scrutiny. See, e.g., Erznoznik v. City of 
Jacksonville, 422 U.S. 205, 214 (1975); Sable Commc'ns. of California, 
Inc. v. FCC, 492 U.S. 115, 126-27 (1989) (using strict scrutiny to 
analyze effort to protect children from dial-a-porn messages); Reno, 
521 U.S. at 868, 879 (``most stringent review'' applies to 
Communications Decency Act's provisions, including proscription of 
transmission of ``indecent'' communications to minors). Outside the 
extremely narrow context of sexual speech considered ``harmful to 
minors,'' see Ginsberg, 390 U.S. at 638, the Supreme Court has never 
held that the interest in protecting children warrants reduced 
scrutiny.
    \4\ Indeed, if the government were to define violent programming in 
a way that discriminated against a particular viewpoint--for example, 
by restricting the showing only of ``glorified'' violence--the 
regulations would be even harder (if not impossible) to justify. See 
RAV v. City of St. Paul, 505 U.S. 377, 391-92 (1992); American 
Booksellers Ass'n v. Hudnut, 771 F.2d 323, 328 (7th Cir. 1985).
---------------------------------------------------------------------------
    The FCC in its report nevertheless suggests that Congress could 
validly restrict violent television programming, based on FCC v. 
Pacifica Foundation, 438 U.S. 726 (1978). See Report  22-25. In 
Pacifica, the Supreme Court arguably applied something less than strict 
scrutiny when it upheld the FCC's authority to sanction a radio station 
for its daytime broadcast of an ``indecent'' monologue; 438 U.S. at 
745.\5\ As explained below, restrictions on violent television 
programming are unlikely to survive even a lower level of scrutiny for 
a number of reasons. But in any event, Pacifica has absolutely no 
application outside the narrow context of ``sexual or excretory 
speech.'' Id. at 743. Again and again, the Court has declined to extend 
Pacifica to new factual settings, stressing the narrowness of the 
case's holding. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 
74 (1983); Sable, 492 U.S. at 128; Reno, 521 U.S. at 875; Playboy, 529 
U.S. at 815.
---------------------------------------------------------------------------
    \5\ We note, however, that the D.C. Circuit has interpreted 
Pacifica as requiring strict scrutiny, ruling in the context of the 
FCC's time-channeling of indecent programming. See Action for 
Children's Television v. FCC, 58 F.3d 654, 660 (D.C. Cir. 1995).
---------------------------------------------------------------------------
    Indeed, Pacifica itself was careful to emphasize the narrowness of 
its holding. See Pacifica, 438 U.S. at 743. The Court there reasoned 
that ``sexual and excretory speech'' is ``at the periphery of First 
Amendment concern,'' id., and ``offend[s] for the same reasons that 
obscenity offends,'' id. at 746. Violent speech fits neither of these 
descriptions. Far from lying ``at the periphery of First Amendment 
concern,'' speech containing violent content is fully protected by the 
Constitution.
    In any event, there are serious reasons to doubt the continuing 
validity of Pacifica's rationale even in the context of indecency. 
Pacifica, decided in 1978, cited the ``uniquely pervasive presence'' of 
broadcast media and stressed that broadcast programming was ``uniquely 
accessible to children.'' Id. At 748. Today, broadcast programming is 
far from ``unique'' in these respects. Of greatest relevance, nearly 86 
percent of television households now receive television via cable, 
satellite, or broadband provider.\6\ Likewise, widespread Internet 
access did not take hold until a decade and a half after the Court 
decided Pacifica. The Supreme Court has applied strict scrutiny to 
attempts to restrict ``indecent'' speech on both the Internet and cable 
television. See Reno, 521 U.S. at 868, 879; Playboy, 529 U.S. at 813. 
Given the absence of any meaningful difference in the ``pervasiveness'' 
or ``accessibility'' of broadcast television versus these other media, 
broadcast television must be entitled to the same level of First 
Amendment protection. In view of the protection the Court has afforded 
these media, which share the very attributes that Pacifica identified, 
it would likely not extend that case to a new factual setting, such as 
violence. Cf. Fox Television Stations, Inc. v. FCC, No. 06-1760, 2007 
WL 1599032, at *17-*18 (2d Cir. June 4, 2007) (describing how Playboy 
and ``today's realities'' have undermined Pacifica).
---------------------------------------------------------------------------
    \6\ See FCC, Annual Assessment of the Status of Competition in the 
Market for the Delivery of Video Programming, Twelfth Annual Report, 21 
FCC Rcd 2503, 2506 (2006) (Twelfth Annual Competition Report).
---------------------------------------------------------------------------
    Finally, even if Pacifica were to remain good law at least to some 
extent, the level of review would remain stringent. The Supreme Court 
has clarified that even Pacifica permits speech restrictions only if 
they are ``narrowly tailored to further a substantial governmental 
interest.'' FCC v. League of Women Voters, 468 U.S. 364, 380-81 (1984). 
This level of ``intermediate'' scrutiny is not easy to satisfy. See 
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665-66 (1994) (``Turner 
I'') (government ``must demonstrate that the recited harms are real, 
not merely conjectural, and that the regulation will in fact alleviate 
these harms in a direct and material way''). As explained below, 
legislation restricting depictions of violence on television would fail 
both intermediate and strict scrutiny.

        B. Restrictions on violent programming would fail strict 
        scrutiny.

    Under strict scrutiny, to justify any restriction of violent 
television programming, the government would be required to (1) 
articulate a compelling state interest; (2) prove that the restriction 
is ``necessary'' to serve that interest (i.e., prove that the asserted 
harms are real and would actually be alleviated by the regulation); and 
(3) show that the restriction is narrowly tailored, and is the least 
restrictive alternative available, to serve that interest. RAV, 505 
U.S. at 395; Turner I, 512 U.S. at 664-65. For the reasons set forth 
below, restrictions on violent programming would fail each prong of the 
strict scrutiny test.
    There are inherent problems with the rationales offered as a basis 
for regulation of violent content. The FCC Report identified the 
alleged harm to minors from viewing violent content as the basis for 
restricting violent television programming. In effect, the Report 
identifies two different types of harm: an increase in minors' 
aggressive behavior, at least in the short term, and an increase in 
negative (and particularly aggressive) thoughts and feelings. See 
Report  7-12. While the impulse to protect minors is certainly 
understandable, neither of these concerns is a legitimate, much less a 
compelling, basis for the government to restrict protected expression.
    The first purported government concern--and a key focus of research 
cited by the Commission--is that minors will become more aggressive as 
a result of being exposed to media violence. However, under controlling 
Supreme Court precedent, the government may not restrict speech in the 
name of preventing violence unless it can meet the stringent test set 
by the Court in Brandenburg. It is well settled that the government may 
not restrict speech to prevent violent behavior by recipients except 
where the targeted expression `` `is directed to inciting or producing 
imminent lawless action and is likely to incite or produce such 
action.' '' Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002) 
(quoting Brandenburg, 395 U.S. at 447) (emphasis added). Lower courts 
have applied this principle to hold that manufacturers of videotapes 
and video games containing violent content may not be sued based on the 
alleged tendency of those materials to encourage violent activities 
over a long period of time. See James v. Meow Media, Inc., 300 F.3d 
683, 699 (6th Cir. 2002); Sanders v. Acclaim Entm't, Inc., 188 F. Supp. 
2d 1264, 1280-81 (D. Colo. 2002). Likewise, in cases challenging the 
constitutionality of laws restricting violent video games to minors, 
courts have viewed this ``violence-prevention'' rationale as 
illegitimate. See Blagojevich, 404 F. Supp. 2d at 1073; AAMA, 244 F.3d 
at 575; Granholm, 426 F. Supp. 2d at 652; Foti, 451 F. Supp. 2d at 831; 
Maleng, 325 F. Supp. 2d at 1186-87.
    Given that depictions of violence in the media are plainly directed 
at either informing or entertaining viewers, rather than incitement, 
and are viewed daily by millions who do not engage in anti-social 
behavior, it is inconceivable that a court would say they may be 
regulated as works that are intended to incite imminent lawlessness and 
likely to do so. As a result, any effort to justify a law based on the 
behavioral effects of violent content would have to begin by finding a 
way to evade the governing legal standard.
    The second of the government's purported interests is that children 
will be become ``desensitiz[ed]'' or experience ``increased fear'' 
because of exposure to violent images. Report  7. Although framed as a 
concern about ``psychological harm'' to minors, this justification is 
essentially an argument that government may restrict speech in order to 
affect how minors think or feel. However, the notion that protected 
speech may be restricted because of how it affects the thoughts or 
personality of listeners is utterly foreign to the First Amendment. As 
the Supreme Court held in Ashcroft, ``[t]he government `cannot 
constitutionally premise legislation on the desirability of controlling 
a person's private thoughts.''' 535 U.S. at 253 (quoting Stanley v. 
Georgia, 394 U.S. 557, 566 (1969)); see also AAMA, 244 F.3d at 577 
(noting ``danger of allowing government to control the access of 
children to information and opinion,'' as ``[p]eople are unlikely to 
become well-functioning, independent-minded adults and responsible 
citizens if they are raised in an intellectual bubble''). For these 
reasons, courts have struck down attempts to restrict minors' access to 
violent video games, finding them to amount to impermissible thought 
control. See Foti, 451 F. Supp. 2d at 831; Blagojevich, 404 F. Supp. 2d 
at 1074.
    The social science cited by the FCC and those who support 
regulation is fundamentally flawed as a justification for restricting 
speech. Under strict scrutiny, the government has the burden of showing 
``substantial evidence'' of a harm addressed by a speech restriction, 
that the harm must be ``real, not merely conjectural'' and the 
regulation must ``in fact alleviate these harms in a direct and 
material way.'' See Playboy, 529 U.S. at 818, 822; RAV, 505 U.S. at 
382; Turner I, 512 U.S. at 664. The evidence purporting to show that 
minors are harmed by exposure to depictions of violence is flawed and 
cannot meet the ``substantial evidence'' standard.
    There are a number of weaknesses in the media violence research on 
which the FCC Report relies. First, there is little or no evidence of a 
causal relationship between exposure to media violence and real-world 
aggressive behavior. Some cross-sectional surveys show a correlation 
between the two, but ``it is impossible to know which way the causal 
relationship runs: it may be that aggressive children may also be 
attracted to violent [media].'' Blagojevich, 404 F. Supp. 2d at 1074. 
Second, much of the experimental research focuses on proxies for 
aggression, such as ``aggressive play'' or noise blasts, rather than 
evidence of actual real-world aggression. However, there is no 
established relation between those proxies and a propensity for actual 
violence. Third, assuming the studies are accurate, the effect sizes 
they find are quite small, and other risk factors are much more 
important causes of youth violence. Fourth, even if the studies show 
some short-term effect on youth aggression, they do not show anything 
about long-term violence. And, of course, there are additional 
criticisms of various types of studies. See, e.g., Jonathan L. 
Freedman, Television Violence and Aggression: Setting the Record 
Straight (2007); Jonathan L. Freedman, Media Violence and Its Effect on 
Aggression: Assessing the Scientific Evidence (2002).
    Indeed, the flaws with the media violence research are apparent in 
the FCC Report. Although the FCC Report reaches the conclusion that 
``there is strong evidence that exposure to violence in the media can 
increase aggressive behavior in children, at least in the short term,'' 
the Report's discussion of the findings of existing research points to 
evidence that is far more equivocal. Report  5. Indeed, the FCC Report 
quotes a 2000 Federal Trade Commission report reviewing the relevant 
research and stating that, while there appeared to be correlation 
between exposure to media violence and acceptance of violent behavior, 
``[r]egarding causation . . . the studies appear to be less 
conclusive,'' and that ``[m]ost researchers and investigators agree 
that exposure to media violence alone does not cause a child to commit 
a violent act, and that it is not the sole, or even necessarily the 
most important, factor contributing to youth aggression, antisocial 
attitudes, and violence.'' Report  10.
    The Report also relies heavily for its conclusions about media 
violence on a 2001 report issued by the Surgeon General entitled Youth 
Violence: A Report of the Surgeon General, but the FCC Report 
substantially overstates the Surgeon General's conclusions. The Surgeon 
General's report does not focus predominantly on media violence nor 
consider it to be a predominant cause of youth violence. And although 
the report finds that exposure to media violence is correlated with and 
may cause short-term aggression, it is circumspect about finding that 
media violence actually causes real-world violence. In particular:

   The report describes media violence as having a ``relatively 
        small effect size[]'' on actual youth violence. Chapter 4.

   The report finds that ``the preponderance of evidence 
        indicates that violent behavior seldom results from a single 
        cause; rather, multiple factors converging over time contribute 
        to such behavior. Accordingly, the influence of the mass media, 
        however strong or weak, is best viewed as one of the many 
        potential factors that help to shape behavior, including 
        violent behavior.'' Appendix 4-B (emphasis added).

   The report identifies the unresolved problem of determining 
        what kinds of violent media content are actually harmful to 
        minors: ``Despite considerable advances in research, it is not 
        yet possible to describe accurately how much exposure, of what 
        types, for how long, at what ages, for what types of children, 
        or in what types of settings will predict violent behavior in 
        adolescents and adults.'' Appendix 4-B.

   Ultimately, the report concludes that there is a small 
        effect of media violence on short-term aggression, but not 
        necessarily on long-term propensity to violence. Appendix 4-B.

    Additionally, evidence similar to that cited by the Report has been 
uniformly rejected by courts in the context of challenges to laws 
restricting violent video games to minors. For example, the Report 
heavily relies on studies by Dr. Craig Anderson. See Report  8. But 
courts have criticized Dr. Anderson's and similar work in the context 
of violent video games as failing to constitute ``substantial 
evidence'' of harm to minors. See AAMA, 244 F.3d at 578-79; IDSA, 329 
F.3d at 959; Blagojevich, 404 F. Supp. 2d at 1059-63; Granholm, 426 F. 
Supp. 2d at 652-54; Maleng, 325 F. Supp. 2d at 1188; Foti, 451 F. Supp. 
2d at 832; Hatch, 443 F. Supp. 2d at 1069-70. In particular, Dr. 
Anderson's research was carefully examined and rejected in a case 
challenging an Illinois video games restriction. In that case, Dr. 
Anderson testified at trial and admitted that the supposed ``effects'' 
of exposure to ``violent'' video games, if any, are purely 
correlational, not causal, and are quite small. See Blagojevich, 404 F. 
Supp. 2d at 1060-61, 1063. The same shortcomings identified in Dr. 
Anderson's video game research are also present in his general analyses 
on media violence, on which the FCC relies rather heavily.
    An additional body of research cited in the FCC Report--magnetic 
resonance imaging (``MRI'') brain-mapping studies, primarily the 
research done by researchers at the University of Indiana--has likewise 
been debunked during litigation. Federal district courts in both 
Illinois and Michigan have rejected the governments' arguments that 
these studies demonstrate ``substantial evidence'' of harm to minors. 
See Blagojevich, 404 F. Supp. 2d at 1074; Granholm, 426 F. Supp. 2d at 
653. Indeed, in the Illinois litigation, one of the Indiana 
researchers, Dr. Kronenberger, conceded that his research does not show 
that playing ``violent'' video games causes the brain patterns observed 
by his research team. Blagojevich, 404 F. Supp. 2d at 1065, 1074. 
Further, the district court found Dr. Kronenberger's testimony to be 
``unpersuasive,'' id. at 1067, providing ``barely any evidence at all, 
let alone substantial evidence'' of the harm claimed by the state. Id. 
at 1074.
    Restrictions on violent programming would not be narrowly tailored 
to materially advance the government's interest. See RAV, 505 U.S. at 
395. There are two independent reasons for this.
    First, broadcast television represents a relatively small portion 
of the media to which children are exposed on a day-to-day basis. Among 
other media, children are exposed to violent content on cable 
television, satellite television, in motion pictures, in video games, 
in books and magazines, and via the Internet. Indeed, given that 86 
percent of television households receive television from cable, 
satellite, or broadband providers,\7\ most children may be exposed to 
violent images simply by changing the channel. See Denver Area Educ. 
Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 744-45 (1996) 
(plurality opinion of Breyer, J.) (noting that cable television is both 
pervasive and accessible to children). Regulating broadcasting while 
leaving other media unaffected suggests not only that broadcasting is 
being unfairly singled out for adverse treatment from all other media 
containing violence to which children are exposed, but that the 
regulation will not actually serve its purpose by leaving other media 
unaffected. See Florida Star v. B.J.F., 491 U.S. 524, 540 (1989).
---------------------------------------------------------------------------
    \7\ Twelfth Annual Competition Report, 21 FCC Rcd at 2506.
---------------------------------------------------------------------------
    Second, it is practically impossible for the government to connect 
the definition of the restricted ``violent'' programming to specific 
research identifying what kind of media violence is most likely to 
cause harm to children. Indeed, even those who believe that media 
violence can cause aggressive behavior do not necessarily agree about 
which violent images are more or less harmful. See, e.g., Surgeon 
General Report, Appendix 4-B. For example, some may regard violence in 
cartoons or in shows such as The Three Stooges as harmful because they 
present violence humorously and without obvious consequences, while 
others believe that cartoons and slapstick comedy are not generally 
harmful and would instead only be concerned about ``realistic'' or 
``graphic'' violence. This lack of fit between the definition of 
restricted ``violent'' material and any particular evidence of harm 
demonstrates that the law cannot be narrowly tailored to address the 
particular ``compelling interest'' identified by the government, and 
even an underinclusive regulation would be suspect because it may leave 
unregulated so much violent programming that it will no longer 
accomplish a compelling interest.
    Restrictions on violent programming would fail strict scrutiny by 
broadly restricting speech to adults as well as minors. Even a rule 
restricting the times in which viewers can see violent depictions in 
television programming would result in the broad suppression of 
constitutionally protected speech. The Supreme Court has explained that 
the interest in protecting children from potentially harmful materials 
``does not justify an unnecessarily broad suppression of speech 
addressed to adults. . . . [T]he Government may not `reduc[e] the adult 
population . . . to . . . only what is fit for children.' '' Reno, 521 
U.S. at 875.
    This is a real concern because 68 percent of the country's 110 
million television-viewing households do not include children under the 
age of 18 at all.\8\ Thus, for the majority of households in the 
country, restrictions on violent content would do nothing to further 
the regulation's goals and would only suppress protected speech. 
Moreover, adults over the age of 55 spend more time watching television 
than any other age group, and both children ages 2-11 and teens ages 
12-17 spend less time watching television than any other age/gender 
group, except men ages 18-24.\9\ The impact of speech-restrictive 
regulations will be disproportionately felt by adults, not children. 
And make no mistake, regulating violent content could easily affect an 
extremely broad range of the most popular mainstream television 
programming enjoyed by millions of adults. For example, advocates of 
restricting violent television content have called ER the ``second-
most-violent series on television in the 2005-2006 season,'' due to its 
``medical violence,'' and have also consistently cited other top-rated 
programs, including C.S.I., Lost, Law and Order, and Grey's Anatomy, as 
containing problematic violence.\10\
---------------------------------------------------------------------------
    \8\ See Television Watch, ``In The Polls,'' available at http://
www.televisionwatch.org/news
polls.polls.html.
    \9\ Nielsen Media Research, 2007 Report on Television at 20 (2007).
    \10\ See Parents Television Council, Dying to Entertain: Violence 
on Prime Time Broadcast Television 1998 to 2006 at 7, 9-13 (Jan. 2007).
---------------------------------------------------------------------------
    The restrictions on violent speech would fail strict scrutiny 
because they ignore less speech-restrictive alternatives. ``If a less 
restrictive alternative would serve the Government's purpose, the 
legislature must use that alternative. . . . To do otherwise would be 
to restrict speech without an adequate justification, a course the 
First Amendment does not permit.'' Playboy, 529 U.S. at 813.
    Here, there is no question that there are existing technological 
tools that enable parents to block access to unwanted programming. The 
Commission's principal explanation for the ``failure'' of V-Chip and 
similar technology is that parents are unaware that it is available or 
that they do not know how to use it. See Report  29, 32. The 
Commission further criticizes the rating system for perceived 
inaccuracies in rating content. Id.  34. But the Commission does not 
discuss evidence that the proportion of parents who have used the V-
Chip specifically has ``increased significantly'' in recent years (from 
7 percent in 2001 to 15 percent in 2004), and the ``vast majority'' of 
those parents (89 percent) have said they found it ``useful.'' Kaiser 
Family Foundation, Parents, Media and Public Policy: A Kaiser Family 
Foundation Survey (2004) at 7 (61 percent of parents using the V-Chip 
found it ``very useful,'' while 28 percent found it ``somewhat 
useful''). By 2006, the proportion of parents using the V-Chip had 
risen to 16 percent, with nearly three out of four parents (71 percent) 
who had tried the V-Chip finding it ``very'' useful, significantly up 
from 2004, and a ``higher proportion than for any of the media ratings 
or advisory systems.'' Kaiser Family Foundation, Parents, Children & 
Media: A Kaiser Family Foundation Survey (2007) at 10.
    Further, in 2004, 50 percent of all parents reported using the 
television ratings to ``help guide their children's television 
choices,'' and the ``vast majority'' (88 percent) of those parents said 
that they found the ratings ``useful,'' including 38 percent who 
reported the ratings to be ``very useful'' and 50 percent ``somewhat 
useful.'' 2004 Kaiser Report at 4-5. By 2006, 53 percent of all parents 
reported using the ratings system, and the percentage who found them 
``very'' useful rose by 11 percentage points to 49 percent. 2007 Kaiser 
Report at 9. That these tools are working is reflected in the recent 
Kaiser study finding that the proportion of parents who say they are 
``very'' concerned that their children are exposed to inappropriate 
violent content dropped from 62 percent in 1998 to 46 percent in 2006, 
supporting the Foundation's conclusion that ``parents say they are 
getting control of their own children's exposure to sex and violence in 
the media.'' \11\
---------------------------------------------------------------------------
    \11\ See 2007 Kaiser Report at 4; Kaiser Family Foundation, News 
Release (June 19, 2007), available at http://www.kff.org/entmedia/
entmedia061907nr.cfm. The vast majority of homes can also be presumed 
to have V-Chip equipped television sets because 82 percent of parents 
have purchased new television sets since January 2000, when the 
requirement that all televisions over 13 inches be equipped with a V-
Chip went into effect. 2007 Kaiser Report at 9. Parents with older 
television sets that lack a V-Chip can separately purchase V-Chip 
technology to use with existing sets.
---------------------------------------------------------------------------
    Beyond the V-Chip and voluntary ratings system, there are a number 
of additional technological and other tools that empower parents and 
viewers. As noted by Commissioner Adelstein, cable subscribers have 
various options available. Digital cable subscribers can use their set-
top boxes to block shows with certain ratings, titles, or by time or 
date, and analog cable subscribers can use their set-top or ``lockbox'' 
technology that blocks specific channels so that they can no longer be 
viewed. Similarly, satellite television subscribers have access to the 
Locks & Limits feature on DIRECTV and Adult Guard on Dish Network. 
Digital and personal video recorders permit families to pre-record and 
watch selected programming whenever they deem appropriate. See Report 
at 32 (statement of Commissioner Adelstein, approving in part and 
concurring in part). Parents can also obtain third-party ratings about 
the content of specific programs from a number of family and religious 
organizations.\12\
---------------------------------------------------------------------------
    \12\ See Adam Thierer, The Right Way to Regulate Violent TV, The 
Progress and Freedom Foundation (May 10, 2007), for a thorough 
discussion of these and additional tools available for parents.
---------------------------------------------------------------------------
    These findings do not suggest that the best alternative to the V-
Chip and other technologies is censorship of speech--on the contrary, 
they suggest that parents would benefit from educational initiatives 
regarding existing alternatives and ratings. This was the view of 
Commissioner Adelstein, who suggesting that existing technologies such 
as the V-Chip provide ``a good basis from which to build,'' and who 
criticized the Report for failing to consider ``an education campaign, 
authorized and funded by Congress, [to] seek to improve consumer 
awareness and understanding of all existing parental controls 
technologies and resources, especially the V-Chip and content 
descriptors.'' Report at 34 (statement of Commissioner Adelstein, 
approving in part and concurring in part). A recent Congressional 
Research Service report agrees, noting that available research 
``indicate[s] that increased knowledge of the V-Chip would 
substantially increase parents' perceptions of control over their 
children's television viewing,'' which could be accomplished though 
``parental awareness programs through, for example, public service 
announcements on television, educational materials on the FCC website, 
and possibly public service announcements in print media.'' \13\
---------------------------------------------------------------------------
    \13\ Congressional Research Service, The V-Chip and TV Ratings: 
Monitoring Children's Access to TV Programming, at 9 (June 4, 2007).
---------------------------------------------------------------------------
    In fact, NAB, the broadcast networks, the Motion Picture 
Association of America, the National Cable & Telecommunications 
Association, the Consumer Electronics Association, DIRECTV and 
EchoStar, and the Ad Council and others are currently collaborating on 
a campaign educate parents on how they can better monitor and supervise 
their children's television consumption. Broadcast television and radio 
stations and cable/satellite channels have run and are continuing to 
run a number of public service announcements (PSAs) about parental 
controls. These PSAs further direct viewers and listeners to 
www.TheTVBoss.org, where they can learn more about the V-Chip and cable 
and satellite technologies to better control the television programming 
coming into their homes.
    As the Supreme Court stated in Playboy: ``It is no response that 
voluntary [action] requires a consumer to take action, or may be 
inconvenient, or may not go perfectly every time. A court should not 
assume a plausible, less restrictive alternative would be ineffective; 
and a court should not presume parents, given full information, will 
fail to act.'' Playboy, 529 U.S. at 824. The government may not 
substitute its judgment for that of parents, including by overriding 
the decisions of those parents who choose not to use the technology. 
See id. at 825. Indeed, among parents aware of the V-Chip but who have 
chosen not to use it, 50 percent report that an adult is usually nearby 
to monitor their children's television viewing and 14 percent say they 
``trust their kids to make their own decisions.'' 2007 Kaiser Report at 
10. And overall, almost two-thirds (65 percent) of parents report that 
they ``closely monitor'' their children's media use, and another 16 
percent feel that they do not need to monitor their children's media 
use. 2007 Kaiser Report at 7. Imposing direct content restrictions on 
television programming would clearly not empower parents (as would a 
governmental consumer awareness campaign), but would preempt parents by 
overriding their judgments with the judgment of the government.
    In fact, the Supreme Court has previously struck down a time 
channeling-restriction on certain sexually explicit programming because 
of the existence of a less restrictive alternative i.e., channel 
blocking), even though the record before the court showed that ``fewer 
than 0.5 percent of cable subscribers had requested'' their cable 
systems to block the programming in question. Playboy, 529 U.S. at 816 
(emphasis added); see also Reno, 521U.S. at 879 (legislature must 
consider even developing technology as less restrictive alternative). 
That figure is obviously well below the figures for usage of the V-Chip 
and voluntary program ratings system. Indeed, the Supreme Court has 
already specifically identified the V-Chip as a type of ``less 
restrictive'' alternative for blocking ``sexually explicit or violent 
programs'' that renders content-based programming restrictions invalid. 
See Denver Area, 518 U.S. at 756 (content segregation requirements on 
``patently offensive'' programming on leased access cable channels 
found to violate First Amendment). Further, in passing V-Chip 
legislation, Congress specifically found that ``[p]roviding parents 
with timely information about the nature of upcoming video programming 
and with the technological tools that allow them easily to block 
violent, sexual, or other programming that they believe harmful to 
their children is a nonintrusive and narrowly tailored means of 
achieving'' the ``compelling governmental interest in empowering 
parents.'' Telecommunications Act of 1996, Pub. L. 104-104,  
551(a)(8) & (9) (1996).
    In short, the widespread availability of a growing number of less 
restrictive alternatives means that speech-restrictive regulations will 
be unable to survive strict scrutiny. See Playboy, 529 U.S. at 824; 
Ashcroft, 542 U.S. at 666-69; Blagojevich, 469 F.3d at 650-51; 44 
Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 507-08 (1996).

        C. Restrictions on violent programming would also fail 
        intermediate scrutiny.

    In the highly unlikely event that Pacifica were determined to 
remain good law and somehow applicable to regulations of broadcast 
content outside the context of indecency, restrictions on violent 
broadcast programming would be valid only if they are ``narrowly 
tailored to further a substantial governmental interest.'' League of 
Women Voters, 468 U.S. at 380. Such restrictions would founder under 
this standard for some of the same reasons that would prevent them from 
surviving strict scrutiny.
    First, the level of scrutiny does not change the government's 
obligation to formulate a constitutionally acceptable definition of 
violent content. Pacifica dealt only with ``sexual and excretory 
speech''--that case provides no assistance in adequately defining 
violent content. The problems of vagueness and overbreadth that plague 
an attempt to define violent content for proscription would not be 
``cured'' because intermediate scrutiny applied. To the contrary, those 
problems would apply with equal force and would require the 
invalidation of the legislation for the same reasons outlined above.
    Second, even under intermediate scrutiny, the government must still 
point to a ``substantial'' interest furthered by the restriction on 
speech, and must still ``demonstrate that the recited harms are real, 
not merely conjectural, and that the regulation will in fact alleviate 
these harms in a direct and material way.'' Turner I, 512 U.S. at 665-
66. Further, the regulation must be narrowly tailored, meaning that it 
must ``promote[] a substantial government interest that would be 
achieved less effectively absent the regulation.'' Id. At 662 (internal 
quotation marks omitted). As with strict scrutiny, the government must 
make these showings with substantial evidence. See id. At 665-66. These 
burdens cannot be met here. To the extent the government's proffered 
interests are illegitimate (as discussed above), they are no more 
``substantial'' than they are ``compelling.'' Moreover, as discussed 
above, the evidence of actual harm is seriously flawed and fails to 
demonstrate that restrictions on certain broadcasting content will 
alleviate the purported harm in any direct and material way. Under an 
intermediate scrutiny analysis, therefore, the lack of an empirical 
link between televised depictions of various types of violence and harm 
to children would be fatal to the restrictions.
    Third, under intermediate scrutiny, the speech regulation ``must 
not burden substantially more speech than is necessary to further the 
government's legitimate interests.'' Turner I, 512 U.S. at 522 (quoting 
Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)). Here, there is 
no question that a restriction on certain kinds of content would do 
just that, by restricting speech to many more adults than children. 
Further, the available technological and other alternatives make clear 
that outright speech restrictions would burden more speech than is 
necessary to further the government's interest of empowering parents. 
Indeed, in Denver Area, the Supreme Court held, even assuming Pacifica 
intermediate scrutiny were to apply, that ``segregate and block'' 
channel requirements burdened more speech than necessary, given the 
availability of less-speech restrictive alternatives such as the V-Chip 
and cable ``lockboxes.'' Denver Area, 518 U.S. at 756, 758-59. In light 
of the numerous tools available to parents to direct their children's 
viewing habits on a household-by-household basis, the same analysis 
would apply to proposed legislation to restrict the airing of 
programming containing violent images.
    In short, restrictions on violent broadcast programming would be 
unconstitutional under intermediate as well as strict scrutiny. That 
conclusion is only bolstered by the novelty of regulating violent 
content and the virtual impossibility of formulating an appropriate 
definition of exactly what is restricted.
Conclusion
    Particularly at a time when consumers have unprecedented control 
over the video programming that enters their homes, any legislation 
restricting broadcast of certain violent television content would 
impermissibly substitute the government's judgment for that of parents 
and interfere with the right of adults to watch what they want. Any 
such legislation would be fraught with constitutional problems under 
the First Amendment, and would be very likely to be struck down by the 
courts.
                                 ______
                                 
                                                      June 25, 2007
Hon. Daniel K. Inouye,
U.S. Senate,
Washington, DC.

Dear Senator Inouye:

    As representatives of some of the hundreds of program networks that 
provide a wide variety of diverse programming selections for millions 
of American consumers, we urge you to oppose government regulation of 
the packaging and pricing of cable and satellite television 
programming.
    Simple sounding solutions, such as a la carte regulation, are 
misguided and would not result in the benefits portrayed by its 
supporters. In fact, such regulation would endanger high quality 
family-friendly programming available today leaving parents and 
children with fewer viewing options. Additionally, in an a la carte 
environment, networks would be forced to spend substantially more money 
to continuously market their channels, in order to attract a sufficient 
number of subscribers to survive. Ironically, this may also result in 
decreased programming budgets, forcing programmers to reduce their 
investment in original and high quality programming.
    Program networks such as ours were developed in response to the 
increasingly diverse demands and interests of consumers. We provide 
audiences with a wealth of programming options, including among other 
things, news and public affairs, religious, Spanish-language and other 
ethnic programming, family and educational programming, children's 
programming, documentaries, sports, music, and general entertainment.
    Producing this high quality programming depends on two revenue 
sources: license fees paid by cable and satellite carriers and 
advertising sales. This economic model has been tremendously successful 
in improving both the quality and quantity of television programming 
available today. Government mandated packaging regulations, and in 
particular a pay per channel requirement, would undermine this model, 
cause the demise of many existing networks, and hinder the creation of 
new ones.
    We know from experience that the marketplace spurs innovation and 
that unnecessary government regulation stifles growth and innovation. 
Nearly every independent study of this issue has reached the same 
conclusion--mandatory packaging or a la carte regulation would 
significantly reduce program diversity, limit consumer choice, and 
likely increase consumer prices. It would also raise significant First 
Amendment questions. We therefore respectfully urge you to oppose 
proposals for such government regulation.
            Sincerely,

A&E HD

A&E Network

ABC Family

Africa Channel

Animal Planet

AZN

BBC America

BBC World

BET

BET Gospel

BET J

Big Ten Network

Biography Channel

Boomerang

Cartoon Network

CMT--Country Music Television

CNN

CNN Airport Network

CNN en Espanol

CNN Headline News

CNN International

Comedy Central

Court TV

Crime and Investigation Network

C-SPAN Networks

Discovery Channel

Discovery en Espanol

Discovery HD Theater

Discovery Health Channel

Discovery Home Channel

Discovery Kids

Discovery Times Channel

Disney Channel

DIY Network (Do It Yourself)

E! Entertainment Television

ESPN

ESPN Classic

ESPN Deportes

ESPN HD

ESPN2

ESPN2 HD

ESPNews

ESPNU

Fine Living

FitTV

Food Network

Food Network HD

Fox College Sports

Fox Movie Channel

Fox National Cable Sports Networks

Fox News

Fox Reality

Fox Regional Cable Sports Networks

Fox Soccer Channel

Fox Sports en Espanol

Fox Sports Network

Fuel

FX

G4--Videogame Television

Golf Channel

Great American Country

HGTV

HGTV HD

History Channel

History Channel en Espanol

History International

i-LifeTV--Inspirational Life Television

INSP--The Inspiration Network

La Familia Cosmovision

Lifetime Movie Network

Lifetime Real Women

Lifetime Television

Logo

MHD (MTV HD)

Military Channel

Military History Channel

MTV

National Geographic Channel

National Geographic Channel HD

Nickelodeon

Noggin

Ovation TV

Oxygen

PBS Kids Sprout

Science Channel

SoapNet

SPEED Channel

Spike TV

Style Network

TBS

TLC

TNT

TNT HD

Toon Disney

Travel Channel

Turner Classic Movies

TV Guide Channel

TV Land

TVG--America's Horseracing Network

Versus

Versus HD

VH1

Weather Channel

Weatherscan

      
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Daniel K. Inouye to 
                            Jeff J. McIntyre
    Question 1. This month (June 2007) the Kaiser Family Foundation 
found that only 16 percent of parents have even used the V-Chip. In an 
earlier report, the Kaiser Family Foundation found that many shows 
containing violence did not receive a violent content rating. This 
raises serious questions about whether the V-Chip is an effective way 
for parents to block shows containing violence. Do you think that the 
V-Chip is an adequate tool for preventing children from viewing violent 
programming?
    Answer. The V-Chip can be an effective tool for informing parents 
about inappropriate content and can be adequate for allowing parents to 
prevent their children from viewing inappropriate material. 
Unfortunately, there is violent content that is not blocked. Often, 
material that is not considered violent by an adult is violent from a 
child's viewpoint (e.g., violent cartoons).
    There is also a discrepancy between the various networks as to what 
constitutes violence for all levels. Consequently, programming rated as 
violent for one network may escape rating as violent for different 
network.
    In order for more parents to use the ratings, they must be made 
more consistent, be more consistently applied, and be better marketed 
to a broader audience.

    Question 2. Are you comfortable with the level of violence on 
television today?
    Answer. Through the efforts of the public health community 
(American Psychological Association, American Academy of Pediatrics, 
etc.) and the child advocacy community (Children Now, Parent's 
Television Council, etc.), parents are more aware of the consequences 
of media violence in their children's lives. With that awareness comes 
a discomfort with the state of the children's media environment 
broadly. With a growing amount of violent and sexual material in 
children's media and a comparatively insignificant amount of children's 
educational programming, parents need better tools for managing their 
child's media diet.

    Question 3. In 1990, Congress passed the Television Program 
Improvement Act. It provided antitrust immunity to the television 
industry to allow the networks to meet and agree on voluntary 
programming standards. The networks agreed to note before violent 
programming, that ``due to some violent content, parental discretion is 
advised.'' Is this warning sufficient?
    Answer. This warning is not sufficient. In the mid-90s the 
television industry negotiated an agreement with the public health, 
child advocacy, and education communities regarding a more detailed 
ratings system that would give parents more information about the 
material their children were watching so they could make a healthy 
decision about their children's media diet themselves--instead of 
having it dictated to them by the networks. Broad language, such as 
``some violent content'' does not allow parents to be properly informed 
about the range of violence that children may be exposed to. There 
``parental discretion advised'' warnings are rarely applied to cartoons 
with violent content--which can have a significant impact on very young 
children.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Bill Nelson to 
                            Jeff J. McIntyre
    Question. Much of the hearing focused on violent programming, and 
what we should do about that. I would like to focus on another source 
of television violence--the commercials.
    Often times, it seems that the commercials contain just as much 
violence as the actual television programming that they are funding. 
Furthermore, with commercials, parents have very little control over 
what their children are seeing. Unlike programming, they don't know the 
general content of commercials in advance, and the commercials are not 
rated or subject to blocking by the V-Chip.
    So, I would like to ask the members of the panel--what can we do to 
help parents who want to control the level of violence in commercials?
    Answer. More consistent ratings and a more consistent application 
of the ratings, along with commercial content consistent with the 
rating for that program, is what is needed to better control the levels 
of violence in all programming--commercials included.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Mark Pryor to 
                            Jeff J. McIntyre
    Question. I believe that one of the problems we will have with the 
use of the V-Chip is that parents don't realize the subtle impact that 
programming has on children, and, therefore, the hassle of using the V-
Chip devalues it use. I also think that the current V-Chip technology 
doesn't take into account that many families have all household 
members, of all ages using the same equipment. What is suitable for a 
five-year old, doesn't work for your ten-year old, or doesn't work for 
the parent.
    The V-Chip, to me, would be convenient as a one time process or for 
a periodical update but not as a daily or weekly tool for parents to 
employ. Even with the industry's recent campaign about the availability 
of the V-Chip, the Kaiser Foundation has found only a modest 
improvement in the use of the parental block. In 2004, the KFF found 
that 15 percent of parents have used the V-Chip. In 2007, the KFF found 
that 16 percent of parents say they have ever used the V-Chip to block 
objectionable programming.
    Although 82 percent of parents now say that they have purchased a 
new television since January 1, 2000, more than half (57 percent) are 
not aware that they have a V-Chip. For years, there has been talk about 
adding the so-called ``V'' button to the remote of the equipment, but I 
understand that manufacturers have expressed concern about the cost of 
adding the button and room for the button on the remote. I brought four 
remotes with me to the hearing, and they all have lots of buttons but 
only one--TiVo--offers a parental control button.
    I would like to hear from each member of the panel about the 
strengths and weaknesses of the V-Chip and on the merits of the V-
button.
    Answer. Foremost, as I am aware, there is no research on a `V-Chip 
button.' However, parents will benefit from more options being made 
more readily available. Certainly, the ease of access that a v-chip 
button' presents could be a path to that.
    The strength of the V-Chip is information. The V-Chip and the 
television ratings system is designed to put the decision making into 
the parent's hands regarding what is most appropriate for their 
children's media viewing habits. As each parent knows their own values 
and children's needs best--a detailed, easy to use ratings system 
allows for parents to choose the material they allow in their 
household--based on their individual child's needs. This prevents the 
industry (through broadly worded, ineffective warnings) and the 
government (through censorship) from making the decision that the 
parents are best to make for themselves.
    There are several areas of improvement available for the current 
television ratings system and the V-chip. A few examples of needed 
areas of improvement follow.
    The ratings are not applied consistently. What one network may 
consider violent at TV-14 does not merit a rating by another.
    There is variety in ratings definitions. The amounts of violence, 
sexual material, and language vary greatly across all ratings and all 
networks.
    The rating of `FV' for `fantasy violence' is largely misunderstood. 
Often applied to cartoons, many viewers have thought this meant `family 
viewing.'
    Education efforts regarding the V-Chip have been sporadic, during 
ineffective programming slots, and done mostly in response to political 
pressure. These ads have also emphasized the age based ratings of the 
ratings system--while research demonstrates the content based ratings 
to be the most useful to parents and the most effective in combating 
violence in the media.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Daniel K. Inouye to 
                           Timothy F. Winter
    Question 1. This month (June 2007) the Kaiser Family Foundation 
found that only 16 percent of parents have even used the V-Chip. In an 
earlier report, the Kaiser Family Foundation found that many shows 
containing violence did not receive a violent content rating. This 
raises serious questions about whether the V-Chip is an effective way 
for parents to block shows containing violence. Do you think that the 
V-Chip is an adequate tool for preventing children from viewing violent 
programming?
    Answer. Mr. Chairman, the unfortunate answer is a resounding NO, 
the V-Chip is not an adequate tool for preventing children from viewing 
violent programming. Anyone who claims it to be an adequate solution is 
either fooling themselves or is attempting to fool this Committee.
    The fundamental flaw with blocking devices like the V-Chip is that 
those who are tasked with its success are financially motivated by its 
failure. Please remember that, in the television industry, the viewer 
is NOT the true ``customer''. Rather, the advertiser is the true 
customer, and the viewer is actually the product that the TV network is 
selling to the advertiser. As such, the networks base their financial 
performance on audience size and advertiser rates. Anything that would 
or could reduce either audience size or advertiser rates will reduce 
the broadcaster's revenue. Because the networks assign content ratings 
to their own programming, there is an inherent conflict of interest for 
the programs to be rated accurately. If the programs are not rated 
accurately, the V-Chip simply cannot function properly. And both 
parents and advertisers lose.
    When the V-Chip was first discussed in the Congress over a decade 
ago, the television industry denounced it as censorship. They opposed 
such a system until they were able to find a way to render it wholly 
ineffective; and having achieved that, now they are pointing to it as a 
reason why the broadcast indecency laws should be overturned. I cannot 
urge this Committee in strong enough terms to see through this smoke 
screen.
    The Parents Television Council has published several in-depth 
reports of the television content rating system. The findings of those 
reports demonstrate just how broken the system is: Ratings are 
inaccurate or incomplete up to 80 percent of the time. For example, in 
the video clips we assembled for this hearing at the request of Senator 
Rockefeller, one scene depicted a woman snorting heroin from the 
sliced-open intestines of her dead brother. There was no indicator for 
violence on this program, which CBS aired at 8 p.m. during the so-
called ``Family Hour.'' This type of content rating omission is not an 
exception; it is the norm on broadcast TV today. In fact there was not 
one single program airing during primetime broadcast television in the 
past year was rated for ``mature'' audiences; 99 percent were either 
TV-PG or TV-13.
    In order for a technology solution like the V-Chip to provide any 
meaningful assistance to parents and families, the following six (6) 
points need to be considered:

        1. The content ratings must be determined independently, not by 
        those who are financially motivated by its failure.

        2. The content ratings must be transparent. In the 
        aforementioned video clip depicting a woman snorting heroin 
        from the sliced-open intestines of her dead brother, would a 
        ``V'' descriptor be an adequate warning for a parent when a 
        ``V'' descriptor might also connote a fistfight? Are all ``V'' 
        scenes equal? Do certain types of sexual scenes warrant a 
        `stronger S' rating? The program content must be fully and 
        transparently disclosed if the V-Chip is to be of any real 
        value.

        3. There must be a consequence if ratings are intentionally 
        incorrect or misleading. There is no penalty today for the 
        consistent under-rating of content. And if a member of the 
        public seeks to complain about an inaccurate application of a 
        content rating, whom does he or she contact, and how?

        4. The ratings system must be consistent, not just across one 
        network but across the entire medium. Our research has shown 
        that the ratings are arbitrarily applied even within the same 
        television network. And the arbitrary nature becomes even worse 
        across other networks, as there is no industry standard on 
        which all the networks base their ratings.

        5. Network program promotions and TV commercials must be rated. 
        Each and every day we hear from parents who attempt to make 
        good TV viewing choices for their families, only to be blasted 
        with graphic, gory, gratuitous scenes from the promos of other 
        programs the network is promoting or from the content of TV 
        commercials.

        6. The ratings system should be a universal system that crosses 
        all electronic media. Why should parents and families be 
        required to learn one content ratings system for motion 
        pictures, another ratings system for television, yet another 
        ratings system for video games, and other systems still for 
        music lyrics and the internet? There could--and should--be one 
        system for all media.

    There is no question that parents need more and better tools to 
help them control the enormous amounts of graphic content that comes 
into their homes. The six steps outlined above would be a drastic 
improvement, but a better technology solution must not lead to the 
elimination of existing broadcast indecency laws. Even if not legally 
indecent, parents should have such a resource so they can make better 
viewing decisions.

    Question 2. Are you comfortable with the level of violence on 
television today?
    Answer. No, Mr. Chairman. I am not comfortable with the level of 
violence on television today. Not only is there more violence on TV 
today, the depictions of violence are far more realistic and more 
heinous than ever before. More often those depictions are of sexual 
violence. And sadly, there is a growing trend to depict children as the 
victims of graphic violence.
    In a major study released earlier this year entitled ``Dying to 
Entertain,'' the Parents Television Council documented a 75 percent 
increase in the number of violent instances per hour during prime time 
between 1998 and 2006, as well as the major findings listed below. 
Based on overwhelming amount of violent content chronicled in this 
report, there is no question that the amount of violence on prime time 
broadcast television has reached a near epidemic level.

    Between 1998 and 2006:

   Violence increased in every time slot:

       Violence during the 8 p.m. Family Hour has increased 
by 45 percent.

       Violence during the 9 p.m. hour has increased by 92 
percent.

       Violence during the 10 p.m. hour has increased by 
167 percent.

   ABC experienced the biggest increase in violent content 
        overall. In 1998, ABC averaged .93 instances of violence per 
        hour during prime time. By 2006, ABC was averaging 3.80 
        instances of violence per hour--an increase of 309 percent.

   Fox, the second-most violent network in 1998, experienced 
        the smallest increase. Fox averaged 3.43 instances of violence 
        per hour in 1998 and 3.84 instances of violence per hour by 
        2006--an increase of only 12 percent.

   Violent scenes increasingly include a sexual element. 
        Rapists, sexual predators and fetishists are cropping up with 
        increasing frequency on prime time programs like Law and Order: 
        S.V.U., C.S.I., C.S.I. Miami, C.S.I. New York, Medium, Crossing 
        Jordan, Prison Break, E.R. and House.

    On an hour by hour basis:

   Every network experienced an increase in violence during the 
        9 o'clock and 10 o'clock hours between 1998 and the 2005-2006 
        television season.

   ABC experienced the biggest increase in violent content 
        during the Family Hour. In 1998 ABC was the least-violent 
        network, averaging only .13 instances of violence per hour. By 
        2006, ABC was averaging 2.23 instances of violence per hour, an 
        increase of 1615.4 percent.

   UPN and Fox were the only networks to feature less violence 
        during the Family Hour in 2005-2006 than in 1998. Violence on 
        Fox decreased by 18 percent, and on UPN by 83 percent.

   ABC experienced the biggest increase in violent content 
        during the 9 o'clock hour, jumping from .31 instances per hour 
        in 1998 to 5.71 instances per hour during the 2005-2006 
        season--an increase of 1,742 percent.

   NBC experienced the biggest increase in violent content--635 
        percent--during the 10 o'clock hour, from 2 instances of 
        violence per hour in 1998 to nearly 15 instances of violence 
        per hour in 2005-2006.

    During the 2005-2006 Season:

   Nearly half (49 percent) of all episodes airing during the 
        study period contained at least one instance of violence.

   The WB network had the highest frequency of violence during 
        the Family Hour during the 2005-2006 season with an average of 
        3.74 incidents of violence per hour.

   CBS was the most violent network during the 9 o'clock hour 
        during the 2005-2006 season with an average of 7.53 instances 
        of violence per hour.

   ABC's short-lived series Night Stalker was the most violent 
        program on television in the 2005-2006 television season. In 
        the sole, one-hour episode that aired during the study period 
        there were 26 instances of violence.

   Every episode of every program airing on NBC in the 10 
        o'clock hour during the 2005-2006 season contained at least one 
        instance of violence. On a per-hour basis, NBC's 10 programming 
        averaged an alarming 14.69 instances of violence.

   56 percent of all violence on prime time network television 
        during the 2005-2006 season was person-on-person violence.

   For each hour of prime time, CBS had the highest percentage 
        of deaths depicted on screen during the 2005-2006 season. 
        During the 8 o'clock hour, 66 percent of violent scenes 
        depicted a death. During the 9 o'clock and 10 o'clock hours 68 
        percent of violent scenes depicted a death.

   Across the board, 54 percent of violent scenes contained 
        either a depiction of death (13 percent) or an implied death 
        (41 percent) during the 2005-2006 season.

    Question 3. In 1990, Congress passed the Television Program 
Improvement Act. It provided antitrust immunity to the television 
industry to allow the networks to meet and agree on voluntary 
programming standards. The networks agreed to note before violent 
programming, that ``due to some violent content, parental discretion is 
advised.'' Is this warning sufficient?
    Answer. The Television Program Improvement Act specifically limited 
the temporary antitrust exception it created to ``any joint discussion 
for the purpose of . . . developing and disseminating voluntary 
guidelines designed to alleviate the negative impact of violence in 
telecast material,'' and not merely general programming standards, so 
it is clear that the problem of television violence has been grappled 
with by policymakers for decades. This past television season alone 
featured violent content like a man having a power drill thrust into 
his back, a finger being severed using a cigar clipper, a bag of heroin 
being cut out of the bowels of a cadaver, and almost innumerable 
depictions of violent death and dismemberment.
    To answer your question directly, Mr. Chairman, no, this warning is 
not sufficient. The only way a viewer would see that warning is if they 
watched the show from its beginning--or--from when the last commercial 
break ended. With the ubiquity of remote control devices in homes 
today, hardly a program goes by without ``channel surfing'' to see what 
else is on another channel. Consequently, it cannot be argued that a 
mere 3 second warning prior to the airing of graphic violent content is 
a sufficient solution to protect children from such programming.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Bill Nelson to 
                           Timothy F. Winter
    Question. Much of the hearing focused on violent programming, and 
what we should do about that. I would like to focus on another source 
of television violence--the commercials.
    Often times, it seems that the commercials contain just as much 
violence as the actual television programming that they are funding. 
Furthermore, with commercials, parents have very little control over 
what their children are seeing. Unlike programming, they don't know the 
general content of commercials in advance, and the commercials are not 
rated or subject to blocking by the V-Chip.
    So, I would like to ask the members of the panel--what can we do to 
help parents who want to control the level of violence in commercials?
    Answer. Senator, I wish to thank you for raising this question. It 
is of critical importance and it reflects the flood of questions and 
comments we receive each and every day from members of the public 
across the United States.
    First, I think it is important to distinguish (a) commercial 
advertisements purchased by sponsors, from (b) the promotional 
advertising the networks run for their own upcoming TV programs. With 
regard to the former, we are seeing a disturbing trend towards more 
graphic violence in television commercials, especially for motion 
picture and video game advertisements. Those commercials tend to 
highlight some of the most graphic scenes or instances present in the 
film or game being advertised. Though violent commercials are a 
concern, we hear far more public outrage at the increased sexual 
content on television commercials. Clearly violent content and sexual 
content are both problematic in paid advertising today.
    An even greater problem for families is the promotional advertising 
run by the TV networks to highlight their other upcoming programs. It 
is common for network promotions highlighting violent programs that 
typically run in later time slots to be aired earlier in the day, and 
many 10 p.m. programs are promoted heavily during the 8 p.m. ``Family 
Hour''. As a result, promotional spots that show graphically violent 
scenes are often aired during the prime time hour when children are 
most likely to be in the audience.
    You correctly state that commercials are not rated and are 
therefore not blockable using the current TV ratings system. 
Commercials--and network promotions--must be rated in precisely the 
same manner as the programs being aired if the V-Chip or other blocking 
devices are to work. But I assure you that the industry will balk at 
doing anything that might prevent its paying sponsor from having its 
advertisement blocked by any means. Regardless of ratings, the TV 
networks must use greater care in the cross-promotion of adult-themed 
programs.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Mark Pryor to 
                           Timothy F. Winter
    Question. I believe that one of the problems we will have with the 
use of the V-Chip is that parents don't realize the subtle impact that 
programming has on children, and, therefore, the hassle of using the V-
chip devalues it use. I also think that the current V-chip technology 
doesn't take into account that many families have all household 
members, of all ages using the same equipment. What is suitable for a 
five-year old, doesn't work for your ten-year old, or doesn't work for 
the parent.
    The V-chip, to me, would be convenient as a one time process or for 
a periodical update but not as a daily or weekly tool for parents to 
employ. Even with the industry's recent campaign about the availability 
of the V-chip, the Kaiser Foundation has found only a modest 
improvement in the use of the parental block. In 2004, the KFF found 
that 15 percent of parents have used the V-Chip. In 2007, the KFF found 
that 16 percent of parents say they have ever used the V-Chip to block 
objectionable programming.
    Although 82 percent of parents now say that they have purchased a 
new television since January 1, 2000, more than half (57 percent) are 
not aware that they have a V-Chip. For years, there has been talk about 
adding the so-called ``V'' button to the remote of the equipment, but I 
understand that manufacturers have expressed concern about the cost of 
adding the button and room for the button on the remote. I brought four 
remotes with me to the hearing, and they all have lots of buttons but 
only one--TiVo--offers a parental control button.
    I would like to hear from each member of the panel about the 
strengths and weaknesses of the V-chip and on the merits of the V-
button.
    Answer. Senator Pryor, the PTC favors any tool that is of real help 
to parents in shielding their children from graphic and explicit 
content. However, the current TV ratings system and the V-Chip 
technology that is dependent upon them are of no real use to parents 
because the producers of TV content rate their own programming. As a 
result, they have a built-in disincentive to accurately rate shows for 
fear of losing either audience or advertisers.
    Furthermore, research by the PTC and corroborated by the Kaiser 
Family Foundation and others has demonstrated that the ratings assigned 
to programming by the networks are inaccurate as much as 60-80 percent 
percent of the time. A full two-thirds of programming examined just 
last year lacked the appropriate content descriptors to warn parents of 
sexual content, sexual dialogue, violence and coarse language. So even 
if parents did exactly what the entertainment industry asks them to do 
by employing the TV ratings and V-Chip technology, not a single child 
would have been protected from exposure to the shows that lacked the 
appropriate content descriptors.
    As you point out, in addition to the failings of the industry-
controlled ratings system, the technology itself is often difficult to 
employ. Despite the availability of the V-Chip, the process of 
activating it differs by each television manufacturer and on each set. 
That is at least part of the reason why recent polling indicates that 
only 16 percent of parents had ever used the V-Chip, and far fewer use 
it on a regular basis. I am intrigued by your idea about a V-Button and 
would like to understand more.
    TiVo is to be commended not only for its one-button approach to 
parental control technology, but also for TiVo KidZone which enables 
parents to use a number of third-party ratings systems to find 
appropriate programs for their children as well as block inappropriate 
shows. (In full disclosure, we are partners with TiVo on their KidZone 
feature.)
    If the V-Chip and the V-button are to be of any value, the 
underlying content rating system must be thorough and accurate. There 
are six (6) critical issues related to the content rating system which 
must be addressed if any blocking device is to work properly:

        1. The content ratings must be determined independently, not by 
        the networks themselves who are financially motivated by its 
        failure;

        2. The program content must be fully and transparently 
        disclosed;

        3. There must be a consequence if ratings are intentionally 
        incorrect or misleading, and there must be a clear solution in 
        place for public complaint;

        4. The ratings system must be consistent, not just across each 
        network but across the entire medium;

        5. Network program promotions and TV commercials must be rated;

        6. The ratings system should be a universal system that crosses 
        all electronic media: motion pictures, television, video games, 
        music lyrics, internet, etc.

    If the television industry as a whole moved toward easier, more 
effective blocking technology, it would be welcomed by millions of 
concerned parents.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Daniel K. Inouye to 
                           Laurence H. Tribe
    Question 1. This month (June 2007) the Kaiser Family Foundation 
found that only 16 percent of parents have even used the V-Chip. In an 
earlier report, the Kaiser Family Foundation found that many shows 
containing violence did not receive a violent content rating. This 
raises serious questions about whether the V-Chip is an effective way 
for parents to block shows containing violence. Do you think that the 
V-Chip is an adequate tool for preventing children from viewing violent 
programming?
    Answer. The V-chip is one of many tools that parents may use to 
prevent their children from viewing programming that parents deem too 
violent or otherwise inappropriate. My testimony focused on, and my 
expertise is limited to, the constitutional validity of proposed 
programming regulation. For that reason, I cannot offer an informed 
opinion regarding whether parents and others view the V-chip as 
``adequate'' in some psychological or sociological sense. I can say, 
however, that the V-chip not only is ``adequate'' but is indeed 
preferred from a constitutional law perspective because, unlike certain 
proposed regulations, the V-chip offers parents choice rather than 
centrally imposing any content-based restriction on the speech that 
they, their children, or others are free to receive or to communicate.
    The fact that parents reportedly do not use the V-chip as 
frequently as some would like is immaterial to whether the V-chip is a 
constitutionally preferred tool for parents. Indeed, as I pointed out 
in my testimony, from a constitutional perspective, alternatives need 
not be widely used--only available to those who choose to use them--in 
order to count as ``less restrictive alternatives'' that render 
unconstitutional any governmental attempt to directly regulate the 
speech in question. In the Playboy case, for example, the U.S. Supreme 
Court held that the availability of channel blocking was sufficient to 
make channel blocking a constitutionally preferred ``less restrictive 
alternative,'' even though it was then used by fewer than 0.5 percent 
of cable subscribers.
    I would also point out that the level of V-chip use reported in the 
Kaiser Family Foundation study does not support imposing additional 
government regulations that would abridge First Amendment speech 
rights. The Kaiser report found that, of parents who have used the V-
chip, 89 percent found it useful--including 71 percent who found it 
``very useful''--in blocking shows they did not want their children to 
watch. Of parents who have television sets with the V-chip and have not 
used it, 50 percent say they haven't used the V-chip because ``an adult 
is usually nearby when [their] children watch TV,'' and an additional 
14 percent say they have not used the V-chip because they ``trust 
[their] children to make their own decisions.'' The report also found 
that 25 percent of parents have used cable or satellite parental 
controls other than the V-chip to block content they did not want their 
children to watch.

    Question 2. Are you comfortable with the level of violence on 
television today?
    Answer. I cannot offer a meaningful answer to this question 
because, as I explained at considerable length in my testimony, I have 
no idea what you, or any other lawmakers or regulators, might mean by 
the term ``violence,'' especially in a context where the concern is not 
so much with ``violence'' as such as it is with the way in which 
``violence'' is being depicted--whether it is being reported factually 
or sanitized and/or glorified, whether it is being used to shock or to 
inform or to entertain or to warn or to frighten, and, more generally, 
what it is being used to express. Nor is this problem the result of any 
lack of effort or imagination, on your part or mine. I meant just what 
I said when I testified that I do not believe anyone is capable of 
crafting a meaningful definition of what constitutes impermissible 
violence without triggering grave constitutional concerns, especially 
when one recognizes that laws regulating speech must be particularly 
clear as well as viewpoint-neutral in order to be constitutional. I do 
not believe that impermissible violence can be defined in a way that 
would withstand constitutional scrutiny.

    Question 3. In 1990, Congress passed the Television Program 
Improvement Act. It provided antitrust immunity to the television 
industry to allow the networks to meet and agree on voluntary 
programming standards. The networks agreed to note before violent 
programming, that ``due to some violent content, parental discretion is 
advised.'' Is this warning sufficient?
    Answer. Whether this particular warning language is ``sufficient'' 
to alert a viewer regarding a particular program's content is obviously 
outside my area of expertise--although I would note that the Kaiser 
Family Foundation report found that 89 percent of parents say that 
current TV ratings have been useful (including 49 percent who say 
``very useful'') in guiding their families' viewing choices, and that 
these warnings are used in addition to the program ratings that are 
recognized by the V-chip. The important point--and the point that is 
within my expertise--is that truly industry-based and industry-
generated (rather than government-based or government-generated) 
solutions that empower parents to make decisions with respect to the 
programming their children will view--such as the voluntary warning 
language quoted above--present no constitutional problem, in sharp 
contrast to any attempt at direct government regulation of content.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Bill Nelson to 
                           Laurence H. Tribe
    Question. Much of the hearing focused on violent programming, and 
what we should do about that. I would like to focus on another source 
of television violence--the commercials.
    Often times, it seems that the commercials contain just as much 
violence as the actual television programming that they are funding. 
Furthermore, with commercials, parents have very little control over 
what their children are seeing. Unlike programming, they don't know the 
general content of commercials in advance, and the commercials are not 
rated or subject to blocking by the V-Chip.
    So, I would like to ask the members of the panel--what can we do to 
help parents who want to control the level of violence in commercials?
    Answer. My testimony focused on the constitutional validity of 
proposed programming regulations. Several of the constitutionally 
preferred alternatives discussed in my testimony can help parents 
restrict the access of their children to commercials that they believe 
contain excessive or otherwise inappropriate or gratuitous violence. 
These options include (i) using the V-chip or on-screen guides to block 
programs or channels in which violent commercials have appeared in the 
past; (ii) subscribing to ``family-friendly'' programming options such 
as DIRECTV's Family Choice Plan, in which such commercials typically do 
not appear, (iii) permitting children to watch only those programs and 
commercials that have been pre-recorded with a time-shifting technology 
such as a VCR or DVR, (iv) using timers that allow televisions to work 
only at certain times of the day when such commercials are less likely 
to appear, and (v) watching television with their children.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Mark Pryor to 
                           Laurence H. Tribe
    Question. I believe that one of the problems we will have with the 
use of the V-chip is that parents don't realize the subtle impact that 
programming has on children, and, therefore, the hassle of using the V-
chip devalues it use. I also think that the current V-chip technology 
doesn't take into account that many families have all household 
members, of all ages using the same equipment. What is suitable for a 
five-year old, doesn't work for your ten-year old, or doesn't work for 
the parent.
    The V-chip, to me, would be convenient as a one time process or for 
a periodical update but not as a daily or weekly tool for parents to 
employ. Even with the industry's recent campaign about the availability 
of the V-chip, the Kaiser Foundation has found only a modest 
improvement in the use of the parental block. In 2004, the KFF found 
that 15 percent of parents have used the V-Chip. In 2007, the KFF found 
that 16 percent of parents say they have ever used the V-Chip to block 
objectionable programming.
    Although 82 percent of parents now say that they have purchased a 
new television since January 1, 2000, more than half (57 percent) are 
not aware that they have a V-Chip. For years, there has been talk about 
adding the so-called ``V'' button to the remote of the equipment, but I 
understand that manufacturers have expressed concern about the cost of 
adding the button and room for the button on the remote. I brought four 
remotes with me to the hearing, and they all have lots of buttons but 
only one--TiVo--offers a parental control button.
    I would like to hear from each member of the panel about the 
strengths and weaknesses of the V-chip and on the merits of the V-
button.
    Answer. From my perspective, and within the limits of my legal 
expertise, the strengths and weaknesses of the V-chip or V-button turn 
on whether these tools offer constitutionally valid means to achieve 
the government's goal of protecting children from certain allegedly 
``violent'' programming. As addressed in my testimony, the V-chip is an 
effective tool because it permits parents to block programming that 
they do not want their children to view. The ``V-button'' may provide 
another equally effective alternative. The V-chip (or the V-button) may 
not be used as frequently as some would like, but this does not mean 
that these tools are ineffective, at least from a constitutional law 
perspective. Any perceived congressional concerns over how often 
parents use the V-chip cannot justify the imposition of centralized 
restrictions on speech--restrictions that, for reasons I explained in 
detail in my testimony, could not be squared with the First Amendment's 
strict requirements of narrowness, precision, and viewpoint-neutrality. 
That said, I think it might be useful for me to point out that the 
Kaiser report found that, of parents who have used the V-chip, 89 
percent found it useful--including 71 percent who found it ``very 
useful''--in blocking shows they did not want their children to watch. 
Of parents who have television sets with the V-chip and have not used 
it, 50 percent say they haven't used the V-chip because ``an adult is 
usually nearby when [their] children watch TV,'', and an additional 14 
percent say they have not used the V-chip because they ``trust [their] 
children to make their own decisions.'' The report also found that 25 
percent of parents have used cable or satellite parental controls other 
than the V-chip to block content they did not want their children to 
watch.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Daniel K. Inouye to 
                           Dale Kunkel, Ph.D.
    Question 1. This month (June 2007) the Kaiser Family Foundation 
found that only 16 percent of parents have even used the V-Chip. In an 
earlier report, the Kaiser Family Foundation found that many shows 
containing violence did not receive a violent content rating. This 
raises serious questions about whether the V-Chip is an effective way 
for parents to block shows containing violence. Do you think that the 
V-Chip is an adequate tool for preventing children from viewing violent 
programming?
    Answer. In order for the V-chip to function effectively at limiting 
children's exposure to sensitive material on television, it is 
essential that programming be rated accurately. The existing evidence 
that offers an independent evaluation of the accuracy, or validity, of 
the television's industry rating practices suggests that many violent 
programs are ``underrated.'' By this, I mean that applicable content 
codes, such as ``V'' for violence, are not applied where they are 
warranted. There is also evidence from parent surveys indicating that 
many parents judge that V-chip ratings applied to programs are often 
too lenient, and that they would assign more restrictive ratings to the 
content in question. When parents lack confidence in the accuracy of 
the ratings, it undercuts the utility of the V-chip system and 
diminishes its value as an effective tool for addressing concern about 
children's exposure to television violence.

    Question 2. Are you comfortable with the level of violence on 
television today?
    Answer. Not all violence on television is the same in terms of its 
risk of harmful effects on child-viewers. Because of that axiom, it is 
important to frame one's concern with the patterns of violent content 
in a manner that places greater emphasis on the nature of the 
depictions than on the sheer amount or volume of violent portrayals. 
Thus, the key question is not simply whether the level of violence on 
television is high or low, but rather, whether most violence is 
presented in ways that are likely to contribute to adverse effects from 
exposure. Evidence from the National Television Violence Study, which 
examined roughly 10,000 programs over a three-year period, demonstrates 
that most televised violence is highly formulaic, and that the 
consistent pattern of portrayals does indeed enhance the risk of 
harmful effects on children. Given this evidence, I cannot be 
comfortable with the presentation of violence on entertainment 
television in the U.S., and indeed harbor substantial concerns about 
its risk of harmful effects on children.

    Question 3. In 1990, Congress passed the Television Program 
Improvement Act. It provided antitrust immunity to the television 
industry to allow the networks to meet and agree on voluntary 
programming standards. The networks agreed to note before violent 
programming, that ``due to some violent content, parental discretion is 
advised.'' Is this warning sufficient?
    Answer. I should first note that since the advent of the V-chip, 
the use of warnings or advisories to alert parents to violent material 
on television is extremely rare. Because of that fact, researchers have 
not actively pursued studies to determine their impact. My sense is 
that such warnings would hold limited utility given that the majority 
of children age 7 and older have television sets in their bedrooms, and 
frequently view without any parental supervision.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Bill Nelson to 
                           Dale Kunkel, Ph.D.
    Question. Much of the hearing focused on violent programming, and 
what we should do about that. I would like to focus on another source 
of television violence--the commercials.
    Often times, it seems that the commercials contain just as much 
violence as the actual television programming that they are funding. 
Furthermore, with commercials, parents have very little control over 
what their children are seeing. Unlike programming, they don't know the 
general content of commercials in advance, and the commercials are not 
rated or subject to blocking by the V-Chip. So, I would like to ask the 
members of the panel--what can we do to help parents who want to 
control the level of violence in commercials?
    Answer. Under the rubric of ``commercials,'' I suspect that you 
mean to include promotional messages for future programming. While some 
product commercials may include violent depictions, it is much more 
common for program promotions to present short excerpts of intense 
violent scenes as an ``attention-grabber'' meant to increase audiences 
for the advertised program. Such material is often included in sports 
programming viewed by substantial numbers of children, as well as in 
most other program contexts with the exception of children's programs. 
Given that most children over the age of 5-6 years spend the majority 
of their television time watching programs intended for older 
audiences, there is a significant risk that children will be exposed to 
violence in these contexts on a regular basis.
    No policy exists to assist parents in limiting their children's 
exposure to violence in non-program content such as commercials or 
program promotions. In the absence of any such policy, one can only 
implore the television industry to exercise greater self-restraint in 
its use of violent depictions to promote programs and other violent 
media products (e.g., films, video games).
                                 ______
                                 
     Response to Written Question Submitted by Hon. Mark Pryor to 
                           Dale Kunkel, Ph.D.
    Question. I believe that one of the problems we will have with the 
use of the V-chip is that parents don't realize the subtle impact that 
programming has on children, and, therefore, the hassle of using the V-
chip devalues it use. I also think that the current V-chip technology 
doesn't take into account that many families have all household 
members, of all ages using the same equipment. What is suitable for a 
five-year old, doesn't work for your ten-year old, or doesn't work for 
the parent.
    The V-chip, to me, would be convenient as a one time process or for 
a periodical update but not as a daily or weekly tool for parents to 
employ. Even with the industry's recent campaign about the availability 
of the V-chip, the Kaiser Foundation has found only a modest 
improvement in the use of the parental block. In 2004, the KFF found 
that 15 percent of parents have used the V-Chip. In 2007, the KFF found 
that 16 percent of parents say they have ever used the V-Chip to block 
objectionable programming.
    Although 82 percent of parents now say that they have purchased a 
new television since January 1, 2000, more than half (57 percent) are 
not aware that they have a V-Chip. For years, there has been talk about 
adding the so-called ``V'' button to the remote of the equipment, but I 
understand that manufacturers have expressed concern about the cost of 
adding the button and room for the button on the remote. I brought four 
remotes with me to the hearing, and they all have lots of buttons but 
only one--TiVo--offers a parental control button.
    I would like to hear from each member of the panel about the 
strengths and weaknesses of the V-chip and on the merits of the V-
button.
    Answer. In my estimation, the greatest impact of the V-chip lies 
more in its existence than in its actual use. What I mean by this is 
that while relatively few parents actively employ it, most parents are 
aware that it exists. And its existence is likely to serve as a cue or 
reminder to parents that there are substantial amounts of material on 
television that are inappropriate for children. It is likely that the 
advent of the V-chip has increased parents' sensitivity to the need to 
supervise their children's media exposure, even if they do not choose 
to exercise that responsibility via the V-chip's blocking technology.
    You are likely aware that there is no single uniform protocol for 
activating the V-chip in the same way across all models of television 
receivers. Rather, each manufacturer requires different commands in 
different sequences using different buttons or features on the remote 
control device to implement the V-chip blocking capability. It 
typically requires significant user effort, including consulting the 
product manual, to activate the V-chip technology on most television 
sets. I have little doubt that V-chip usage by parents would increase 
significantly if it were possible to utilize the technology simply with 
the push of a single button that was clearly marked on all TVs and/or 
remote control devices.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Daniel K. Inouye to 
                             Peter Liguori
    Question 1. This month (June 2007) the Kaiser Family Foundation 
found that only 16 percent of parents have even used the V-Chip. In an 
earlier report, the Kaiser Family Foundation found that many shows 
containing violence did not receive a violent content rating. This 
raises serious questions about whether the V-Chip is an effective way 
for parents to block shows containing violence. Do you think that the 
V-Chip is an adequate tool for preventing children from viewing violent 
programming?
    Answer. The V-Chip is a very effective and powerful tool to aid 
parents in their efforts to block any unwanted programming, including 
violence, from coming into the home. It allows parents to block shows 
based on an age-based rating, such as TV-PG or TV-14, or based on 
content descriptors, such as ``S'' for sexual content, ``L'' for 
language, or ``V'' for violence.
    According to a survey released by the Kaiser Family Foundation in 
June 2007, 71 percent of parents who used the V-Chip found the system 
very useful, clearly demonstrating the blocking tool's effectiveness. 
Additionally, most parents said that they knew about TV ratings (81 
percent) and the V-Chip (70 percent), with one-third of parents 
understanding the ``S'' rating, and one-half of parents comprehending 
the ``V'' rating.
    TV Watch--the leading national organization that promotes parental 
controls and individual choice as an alternative to increased 
government regulation of TV content--released additional survey 
information and data in June 2007 that are worth noting:

   73 percent of parents monitor what their children watch, 
        including 87 percent of parents whose children are ages 0-10.

   86 percent of parents believe that more parental involvement 
        is the best way to keep kids from viewing television shows that 
        are rated beyond their ages.

   83 percent of parents are satisfied with the effectiveness 
        of the V-Chip and other blocking tools.

    As this survey shows, one of the most effective and widely-used 
tools is parental controls.
    Finally, it is also important to recognize that the V-Chip is just 
one of many tools available to parents. Cable and satellite television, 
subscribed to by roughly 86 percent of U.S. households, offer a wide 
array of parental controls. With certain set-top devices, parents have 
the ability to filter content based on TV ratings or MPAA ratings. 
Parents can also block particular channels, titles, time slots, or even 
descriptions contained in interactive guides. DIRECTV and Echostar, as 
well as the top three cable operators, offer ``family-friendly'' tiers. 
Parents can use other technological tools and devices to gain access to 
appropriate content; for example, parents can use Digital Video 
Recorders (DVRs) to create a library of programs acceptable for their 
children. An exhaustive list of tools is set forth in a recent survey 
by Adam Thierer, Senior Fellow and Director, Center for Digital Media 
Freedom, Progress & Freedom Foundation, ``Parental Controls and Online 
Child Protection: A Survey of Tools and Methods'' (A copy of this 
report is retained in Committee files and is available online at http:/
/www.pff.org/parentalcontrols/1).
    We understand your concern about the use of content descriptors, 
and realize there is always room for improvement. In that regard, FOX 
is currently engaged in an internal review of the process in which it 
rates TV shows across all of our companies, including the FOX Network, 
MyNetworkTV, and our cable channels. Moreover, we are working with our 
broadcast and cable colleagues to improve the consistency of ratings 
across channels. You have our assurance that we are continually working 
toward the goal of ensuring that the V-Chip is the most reliable system 
available.

    Question 2. Are you comfortable with the level of violence on 
television today?
    Answer. We believe that the quality of programming on television 
today is at an all-time high. On FOX, we have a great mix of 
programming--from family-friendly shows, such as ``American Idol'' and 
``Are You Smarter than a 5th Grader?'' to compelling, critically-
acclaimed dramas, such as ``House'' and ``Prison Break.''
    Personally, I am satisfied that the level of violence on television 
today is carefully measured and labeled by the tools available to 
assist parents in monitoring their children's viewing of television 
programs.
    As the parent of a 13-year old and a 15-year old, I personally 
understand the important role that parents and these tools play. I am 
constantly evaluating shows to ensure that they are appropriate for my 
children's ages and maturity levels. There are shows on television that 
I simply do not allow them to watch, including shows that FOX airs. The 
parental control device, such as the V-Chip, is an excellent way for 
parents to demarcate television viewing by children based on their own 
particular values and judgments.

    Question 3. In 1990, Congress passed the Television Program 
Improvement Act. It provided antitrust immunity to the television 
industry to allow the networks to meet and agree on voluntary 
programming standards. The networks agreed to note before violent 
programming, that ``due to some violent content, parental discretion is 
advised.'' Is this warning sufficient?
    Answer. We have learned through ongoing contact with various 
interest groups that parents find the advisories extremely helpful. We 
at FOX take seriously our responsibility to use on-screen advisories, 
as well as many other ways, to inform viewers about the content of our 
programs. We have a large department of Broadcast Standards 
professionals, who are charged with ensuring that our shows comply with 
the law and our own stringent internal standards. These Standards 
professionals are involved at every step in the development, production 
and broadcast of our entertainment programming. They meticulously 
review more than 500 hours of programming and tens of thousands of 
commercials every year. They are also responsible for rating each 
episode of every show, providing both an age-based rating, such as TV-
PG or TV-14, and content descriptors where necessary (``S'' for sexual 
content, ``L'' for language, or ``V'' for violence).
    These ratings are aired at the commencement of every program on our 
networks, and after each commercial break. When appropriate, we also 
place an additional, full screen advisory at the start of the program 
to provide a warning to parents to pay close attention before they 
allow their kids to tune in. Moreover, many television sets and cable 
satellite set-top televisions provide age-based ratings and content 
descriptors on the program guides and display screens, even during 
commercial breaks.
    We air public service announcements (PSAs) as part of an industry-
wide media campaign that urges parents to take charge of their 
children's TV viewing. PSAs are run in prime time, during some of our 
most popular shows, such as ``American Idol.'' This PSA campaign refers 
parents to a website--www.TheTVBoss.org--where we provide detailed 
information about parental controls and the TV rating system.
    We take all these steps to help parents make informed viewing 
decisions. Together, these actions are very effective.

    Question 4. Back in 2004, the National Association of Broadcasters 
held a Summit on Responsible Programming. As I understand it, this was 
an effort by broadcasters to take positive steps to address concerns of 
parents and policymakers about things like violent and indecent 
programming. What new initiatives came from this exercise? What effect 
did this effort have on industry efforts to address violent 
programming?
    Answer. Following the Responsible Programming Summit, the National 
Association of Broadcasters (NAB) and its members, as well as other 
broadcasters and networks, held a series of meetings to discuss 
concerns about broadcast programming. A number of those discussions 
focused on promoting ways for parents to take charge of what their 
children view on television. As a result of those discussions, 
individual broadcasters and station groups have focused directly on 
specific safeguards that could be put in place to prevent inappropriate 
material from being aired, including delay buttons and other review 
systems and processes. The Summit resulted in a renewed, voluntary 
commitment by broadcasters across the country to monitor more closely 
both their live and recorded content. Today, as result of these efforts 
and more diligent oversight, there have been few, if any, problems.
    Following the Summit, the broadcast industry has examined the 
history and use of the V-Chip and program ratings system, and has 
concluded that additional industry efforts should be undertaken to 
improve consumer awareness of these parental controls. The NAB, 
broadcast networks, the Motion Picture Association of America, the 
National Cable & Telecommunications Association, the Consumer 
Electronics Association, DIRECTV and Echostar, the Ad Council and 
others joined a campaign to educate parents on how they can better 
monitor and supervise their children's television consumption. 
Broadcast television and radio stations and cable/satellite channels 
have run, and continue to run, a number of PSAs about parental 
controls. These PSAs further direct viewers and listeners to 
www.TheTVBoss.org, where they can learn more about the V-Chip and cable 
and satellite technologies to better control the television programming 
coming into their homes.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Bill Nelson to 
                             Peter Liguori
    Question. Much of the hearing focused on violent programming, and 
what we should do about that. I would like to focus on another source 
of television violence--the commercials. Often times, it seems that the 
commercials contain just as much violence as the actual television 
programming that they are funding. Furthermore, with commercials, 
parents have very little control over what their children are seeing. 
Unlike programming, they don't know the general content of commercials 
in advance, and the commercials are not rated or subject to blocking by 
the V-Chip. So, I would like to ask the members of the panel--what can 
we do to help parents who want to control the level of violence in 
commercials?
    Answer. First of all, our Standards department reviews every 
commercial before it airs. We review tens of thousands of commercials 
each year. Moreover, we take into account the product being advertised 
when deciding what time and on what show it should air.
    The Federal Trade Commission (FTC) has also weighed in on the issue 
of marketing violent entertainment products to children. The FTC has 
approved guidelines for the television industry, so that no violent 
entertainment products are marketed on programs where 35 percent or 
more children are in the audience. We have followed this guideline.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Mark Pryor to 
                             Peter Liguori
    Question. I believe that one of the problems we have with the use 
of the V-Chip is that parents do not necessarily recognize the subtle 
impact of programming on children, and, therefore, the V-Chip is not 
better utilized. I also believe that the current V-Chip technology does 
not take into account that many families use the same equipment for all 
household members. What is suitable for a five-year old, does not work 
for a ten-year old, or may not be of interest to an adult.
    The V-Chip, to me, would be convenient as a one-time process or for 
a periodical update but not as a daily or weekly tool for parents to 
employ. Even with the industry's recent campaign about the availability 
of the V-Chip, the Kaiser Foundation (KFF) found only a modest 
improvement in the use of this tool. In 2004, the KFF found that 15 
percent of parents installed the V-Chip. In 2007, the KFF found that 16 
percent of parents have used the V-Chip to block objectionable 
programming.
    Although 82 percent of parents now say that they have purchased a 
new television since January 1, 2000, more than half (57 percent) are 
not aware that their sets have V-Chip technology. For years, there has 
been talk about adding the so-called ``V'' button to the remote of the 
equipment, but I understand that manufacturers have expressed concern 
about the cost of adding the button and room for the button on the 
remote. I have brought four remotes with me to this hearing, and they 
have lots of buttons. Only one button--TiVo--offers parental control.I 
would like to hear from each member of the panel about the strengths 
and weaknesses of the V-Chip and on the merits of the V-button.
    Answer. The V-Chip has several strengths. First of all, it is 
ubiquitous. Every television--13 inches or larger manufactured since 
2000--is equipped with a V-Chip. While we recognize that there are 
still televisions in use that were purchased prior to 2000, that number 
will decrease over time, making V-Chip availability truly universal. 
Moreover, the V-Chip is easy to program. Once it has been programmed, 
it will work every time. The strength of the V-Chip is that it allows 
for parental discretion and flexibility, where parents can block 
programming based on the aged-based rating system, such TV-PG or TV-14, 
or based on content descriptors, such as ``V'' for violence or ``S'' 
for sex. Parents then have the ability to remove V-Chip restrictions 
when they sit down to watch television programming after their children 
have gone to bed. We recognize that each household is not the same; 
some parents, for example, may find subjects related to sex more 
objectionable than those to violence, or vice versa. The V-Chip gives 
parents the ability to choose what content their children can and 
cannot view.
    In addition to the V-Chip, parental controls are offered by cable 
and satellite providers. For example, DirecTV allow parents to block 
shows based on TV ratings, MPAA ratings, time slots, titles, or 
channels. Parents also have the ability to block unrated programs and 
filter objectionable program descriptions on the interactive guide. As 
I noted in one of my answers above, there is an exhaustive list of 
technological tools set forth in a recent survey by Adam Thierer of the 
Progress & Freedom Foundation. Because of the way the V-Chip works, the 
ratings system cannot be modified without disenfranchising all of the 
television sets currently in viewers' homes. Any changes could only be 
incorporated in TV sets sold at some future date.

                                  
