[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
----------
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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
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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
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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
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\*\ 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\
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\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\
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\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\
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\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.
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\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).
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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.
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______
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.