[Senate Report 106-509]
[From the U.S. Government Publishing Office]
CHILDREN'S PROTECTION FROM VIOLENT PROGRAMMING ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 876
October 26 (legislative day, September 22), 2000.--Ordered to be
printed
__________
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2000
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred sixth congress
second session
JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana DANIEL K. INOUYE, Hawaii
SLADE GORTON, Washington JOHN D. ROCKEFELLER IV, West
TRENT LOTT, Mississippi Virginia
KAY BAILEY HUTCHISON, Texas JOHN F. KERRY, Massachusetts
OLYMPIA SNOWE, Maine JOHN B. BREAUX, Louisiana
JOHN ASHCROFT, Missouri RICHARD H. BRYAN, Nevada
BILL FRIST, Tennessee BYRON L. DORGAN, North Dakota
SPENCER ABRAHAM, Michigan RON WYDEN, Oregon
SAM BROWNBACK, Kansas MAX CLELAND, Georgia
Mark Buse, Staff Director
Ann H. Choiniere, General Counsel
Kevin D. Kayes, Democratic Staff Director
Moses Boyd, Democratic Chief Counsel
Gregg Elias, Democratic General Counsel
(ii)
Calendar No. 953
106th Congress Report
SENATE
2d Session 106-509
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CHILDREN'S PROTECTION FROM VIOLENT PROGRAMMING ACT
_______
October 26 (legislative day, September 22), 2000.--Ordered to be
printed
_______
Mr. McCain, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 876]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 876) ``A bill to amend the
Communications Act of 1934 to require that the broadcast of
violent video programming be limited to hours when children are
not reasonably likely to comprise a substantial portion of the
audience'', having considered the same, reports favorably
thereon and recommends that the bill (as amended) do pass.
Purpose of the Bill
The purpose of the bill is to protect American children from
the harm caused by viewing violence on television.
Background and Needs
I. Summary
Each year, more than 16,500 people are murdered in the United
States. One person is killed every 31 minutes. While France has
a murder rate of 1.1 homicides per 100,000 people, the United
States has a rate of 6.3. The United States murder rate is four
times the rate of Europe and 11 times higher than that of
Japan. Violence is the second leading cause of death for
Americans between the ages of 15 and 24, and is the leading
cause of death for African- Americans of that age group.
The growth of violence in our society has prompted Congress
to look for various solutions to reduce the extent of this
problem. Congress first began to examine the link between
television and violence with hearings in the 1950s. Hearings
continued throughout the 1960s and early 1970s. The Senate
Judiciary Committee studied this issue in 1954 and held several
hearings from 1961 to 1964. Their conclusion was that they had
``conclusively established a relationship between televised
crime and violence and antisocial attitudes and behavior among
juvenile viewers.'' Since the early 1960s, the Senate Commerce
Committee has held 23 hearings on the subject of media
violence. In 1972, the Surgeon General released a study
demonstrating a correlation between television violence and
violent behavior and called for Congressional action.
Each time the issue was raised in Congress, however, the
industry responded with promises to regulate itself while at
the same time urging against Congressional action. In 1975,
Richard Wiley, then Chairman of the Federal Communications
Commission (FCC), announced that he had reached an agreement
with the broadcasters that made Congressional action
unnecessary. This agreement provided that the television
industry would voluntarily restrict the showing of violent
shows during the family hour. This practice fell out of use in
the 1980s.
During the 1980s, the amount of violence on television
increased substantially. One study found up to 32 acts of
violence on television on children's programming. The increase
in violence coincided with an increase in the amount of time
children spend watching television. Children spend, on average,
28 hours per week watching television, which is more time than
they spend in school.
In 1990, Congress passed legislation allowing television
industry representatives, without violating antitrust laws, to
meet, consider, and jointly agree upon voluntary ratings
standards. However, in 1993, the Department of Justice
concluded that meetings by industry representatives to discuss
and develop a voluntary ratings standard did not require a
waiver of the antitrust laws. Therefore, it was not necessary
to extend the waiver granted to industry in 1990.
In 1996, Congress passed legislation requiring television
sets to be equipped with an electronic device, the V-chip, that
would allow parents to block certain programming. The
legislation also encouraged the video programming and
distribution industry to establish rules for rating video
programming containing sexual, violent, or other indecent
materials and to broadcast signals containing these ratings. In
January of 1997, the industry developed an age-based ratings
proposal. These proposed age-based ratings came under intense
and immediate criticism because they failed to identify
specific content that was violent, was sexual in nature, or
contained mature dialogue. Thus, the ratings denied parents the
ability to block individual programs based on objections to the
specific content of the programs. In response to these
criticisms, the industry revised its proposed television
ratings to include content specific information. The National
Association of Broadcasters, the National Cable Television
Association, and the Motion Picture Association of America were
the principal groups behind these revisions. As revised, the
new ratings retained the original age-based categories, and
added four content categories to help viewers identify violence
(V), sexual situations (S), coarse or crude indecent language
(L), and suggestive dialogue (D).
On July 8, 1997, eight Senators wrote a Dear Colleague letter
urging the FCC to approve the revised ratings and ensure that
those ratings be used in a fashion compatible with the V-chip.
That letter also urged the Senate to allow ``a substantial
period of governmental forbearance during which further
legislation or regulation concerning television ratings,
content or scheduling should be set aside.'' The signatories to
this letter were Republicans John McCain, Trent Lott, Conrad
Burns, Orrin Hatch, and Dan Coats, and Democrats Tom Daschle,
Patrick Leahy, Carol Moseley-Braun, and Barbara Boxer.
The FCC adopted an order finding the voluntary ratings system
to be acceptable on March 12, 1998. The FCC deemed the industry
to be sufficiently self-regulating despite the resistance to
the ratings by NBC and Black Entertainment Television (BET).
NBC refused to use content-specific ratings and relied instead
on the age-based ratings only; and BET refused to use any
ratings whatsoever. That remains their practice today.
In that same order, the FCC required manufacturers to include
V-chip technology to block objectionable programming in at
least half of televisions 13 inches or larger by July 1, 1999,
and in the remaining half by January 1, 2000. The FCC required
that the technology work specifically with the voluntary
programming ratings agreed to by industry.
Subsequent to the FCC's approval of the ratings, a 1998 study
by the Kaiser Family Foundation found that 79 percent of shows
with moderate levels of violence are not rated for violence.
The study further found that while NBC and BET do not rate
their programs for content, most of the unrated violent
programming is not on those channels. With respect to
programming supposedly designed for children, the Kaiser study
found that no programs rated TV-G receive a V rating for
violence. Moreover, 81 percent of children's programming
containing violence did not even receive the FV rating for
fantasy violence. According to the Kaiser study: ``The bottom
line * * * is clear. Parents cannot rely on the content
descriptors, as currently employed, to block all shows
containing * * * violence. * * * There is still a significant
amount of `moderate' to `high' level * * * violence in shows
without content descriptors.'' And, with respect to children's
programming, the failure to use the `V' descriptor and the rare
use of the FV descriptor leads to the conclusion that ``there
is no effective way for parents to block out all children's
shows containing violence.''
In April 2000, the Kaiser Family Foundation released a study
on the actual effectiveness of the V-chip in American homes.
The study concluded that only 9 percent of parents with
children aged 2-17 actually owned televisions with V-chips and
only one third of those families (three percent of all families
with children) were using the V-chip to block objectionable
programming. Moreover, the survey indicated that 39 percent of
parents had never heard of the V-chip.
Over 200 independent research studies have now been conducted
that demonstrate a causal link between viewing violent
programming and aggressive behavior. Several national
organizations, including the National Institutes for Mental
Health, the American Psychological Association, and the
National Parent-Teacher Association have supported a safe
harbor approach in addressing television violence.
S. 876, as reported, the Children's Protection from Violent
Programming Act, requires the FCC to implement a safe harbor to
prohibit violent video programming during hours when children
are reasonably likely to comprise a substantial portion of the
audience, unless video programming is blockable by electronic
means based on its content. In addition, S. 876, as reported,
requires the FCC to institute a safe harbor for all
programming, blockable or not, if it determines that the V-chip
and the content specific ratings are not effectively shielding
children from violence on television. S. 876 adopts a similar
approach to television violence as that which has been upheld
for broadcast and cable indecency. The provisions in S. 876
apply to broadcast television, and cable and satellite
television (except for premium channels or pay-per-view
programs).
If the FCC determines that a safe harbor is to be instituted,
then restricting the hours when violent video programming is
shown will be the least restrictive and most narrowly and
tailored means to achieve the compelling government interest
and to protect children from violence on television. The bill
thus meets the ``strict scrutiny'' test set down by the Supreme
Court for ``content-based'' regulation.
II. History of Congressional Concern
Congress has expressed concern about the amount of violence
on television for over forty years. Studies conducted in the
1950s showed that violent crime increased significantly early
in that decade, and some researchers believed that the spread
of television was partly to blame. In response, Congress held
hearings concerning violence in radio and television and its
impact on children and youth in 1952 and 1954. In 1956, one of
the first studies of television violence reported that 4-year-
olds who watched the ``Woody Woodpecker'' cartoon were more
likely to display aggressive behavior than children who watched
the ``Little Red Hen.'' After the broadcast industry pledged to
regulate itself, and after the FCC testified against
censorship, no action was taken.
The urban riots of the 1960s again raised concern about the
link between television violence and violent behavior. In
response to public concern, President Lyndon B. Johnson
established the National Commission on the Causes and
Prevention of Violence. The Commission's Mass Media Task Force
looked at the impact of violence contained in entertainment
programs aired on television and concluded that (1) television
violence does have a negative impact on behavior; (2)
television violence encourages subsequent violent behavior; and
(3) ``fosters moral and social values about violence in daily
life which are unacceptable in a civilized society.'' \1\
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\1\ U.S. National Commission on the Causes and Prevention of
Violence. To Establish Justice, To Insure Domestic Tranquility. Final
Report of the National Commission on the Causes and Prevention of
Violence. Washington, U.S. Govt. Print. Off., December 1969, p. 199.
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In 1969, Senator John Pastore, Chairman of the Senate
Subcommittee on Communications of the Committee on Commerce,
petitioned the Surgeon General to investigate the effects of TV
violence. In 1972, Surgeon General Jessie Steinfeld released a
study \2\ demonstrating a correlation between television
violence and violent behavior and called for Congressional
action. The five-volume report concluded that there was a
causal effect from TV violence, but primarily on children
presupposed to be aggressive. The then FCC Chairman, Dean
Burch, declined to regulate violence, saying that the FCC
should not make fundamental programming judgments.
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\2\ U.S. Dept. of Health, Education, and Welfare. The Surgeon
General's Scientific Advisory Committee on Television and Social
Behavior. Television and Growing Up: The Impact of Televised Violence.
Report to the Surgeon General. U.S. Public Health Service. Washington,
U.S. Govt. Print. Off., 1972, p. 279.
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Several more hearings were held after the release of the
Surgeon General's report in the 1970's. Despite studies showing
an increase in violent programming, little regulatory or
Congressional action was taken. Discussions continued regarding
the relationship between violence in society and what was shown
on television. The continued concerns prompted Congress to
request the FCC study possible solutions to the problems of
television violence and sexually-oriented materials.
On February 20, 1975, under the direction of then Chairman
Wiley, the FCC issued its Report on the Broadcast of Violent
and Obscene Material. The report recommended statutory
clarification regarding the Commission's authority to prohibit
certain broadcasts of obscene and indecent materials. However,
with regard to the issue of television violence, the FCC did
not recommend any congressional action because the industry had
recently adopted a voluntary family viewing period as part of a
pro-family television code.\3\ The Television Code, however,
fell out of use in the 1980's.
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\3\ On February 4, 1975, the National Association of Broadcasters
(NAB) Television Code Review Board adopted a code implementing a family
viewing period between 7 to 9 p.m., viewer advisories, and warnings to
publishers of the advisories.
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During the 1980s, no further measures were taken either by
Congress or by the FCC to restrict television violence.
However, during this period, over 200 studies were conducted
demonstrating a causal link between viewing violent scenes and
engaging in aggressive behavior. In addition, the growth of
media outlets, especially cable television, also led to an
increase in the amount of violence on television.
During the 101st Congress, then Senator Paul Simon (D-IL)
introduced the Television Program Improvement Act. That
legislation granted an antitrust exemption to permit television
industry representatives to meet, consider, and jointly agree
upon implementing voluntary standards that would lead to a
reduction in television violence. Subsequent to the bill's
enactment, industry discussions led to the release, in December
1992, of joint standards regarding the broadcasting of
excessive television violence. For example, the standards
stated that ``gratuitous or excessive depictions of violence *
* * are not acceptable,'' and that ``all depictions of violence
should be relevant and necessary to the development of
character, or to the advancement of theme or plot.'' Six months
later, in June 1993, the networks adopted a policy to warn
viewers about programs that might contain excessive violence.
That policy requiredthe following statement to be transmitted
before and during the broadcasting of violent programs: ``Due to some
violent content, parental discretion is advised.'' The Independent
Television Association, the trade group representing many of the
television stations not affiliated with one of the networks, adopted a
similar voluntary code.
Despite these efforts by the industry, there were many in
Congress that believed that the voluntary code did not
adequately address the concerns of parents over television
violence. In October 1993, the Senate Commerce Committee held a
hearing on television violence to consider a variety of
legislative proposals. Attorney General Janet Reno testified
that all the legislation currently pending before the
Committee, including S. 1383, the Children's Protection From
Violent Programming Act of 1993 (Hollings-Inouye), S. 973, the
Television Report Card Act of 1993 (Dorgan), and S. 943, the
Children's Television Violence Protection Act of 1993
(Durenberger), would be constitutional. The major broadcast
networks and other industry representatives argued that the
amount of violent programming had declined. The industry
representatives also requested more time to implement proposed
warning labels before the Congress considered legislation. No
further action was taken on the bills in the 103rd Congress.
Senator Simon's Television Improvement Act provided an
antitrust exemption for three years until 1993. In 1993, he
requested the views of the Department of Justice on the
antitrust implications of the collective efforts of the
television industry to address the effects of violence on
television. In a response, Sheila Anthony of the Department of
Justice stated that the Department did not believe that the
continuance of industry meetings to develop a ratings standard
presented a substantial antitrust risk.\4\ Accordingly, the
Department of Justice believed that industry members were free
to meet and develop a ratings standard.
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\4\ Letter to Paul Simon, Senator, from Sheila Anthony, Assistant
Attorney General, DOJ, (November 29, 1993).
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During floor consideration of S. 652, the Telecommunications
Competition and Deregulation Act of 1995, the Senate adopted an
amendment based on S. 332, the Children's Media Protection Act
of 1995, offered by Senators Conrad and Lieberman. The
amendment required all new television sets to be equipped with
a programmable chip that would allow parents to block out
specific programs. In addition, the amendment required the
establishment of a ratings commission if the industry fails to
set up a voluntary ratings system within one year. The Senate
adopted the amendment by voice vote, but after a motion to
table, the amendment was defeated by a vote of 73-26.
On July 11, 1995, the Commerce Committee held its second
hearing on television violence to consider pending measures,
including S. 470, the Hollings safe harbor legislation. S. 470
(104th Congress) was identical to S. 1383 (103rd Congress). The
Committee subsequently reported S. 470 without amendment on
August 10, 1995 by a recorded vote of 16 yeas and 1 nay, with
two Senators not voting. Senator Hollings wrote to then
Majority Leader Dole, and subsequently to Majority Leader Lott,
requesting floor time for S. 470. However, due to several holds
placed on the legislation, the full Senate did not consider S.
470 during the 104th Congress.
As part of the 1996 Telecommunications Act, the 104th
Congress adopted legislation concerning the V-chip and ratings
system. Based upon those provisions, manufacturers of
television sets with a 13-inch or larger screen must install an
electronic device in each set manufactured after 1998. This
device, dubbed the V-chip for violence, could be programmed to
block programming with certain ratings. To make the V-chip
work, the 1996 Act encouraged the video programming industry to
``establish voluntary rules for rating video programming that
contains sexual, violent, or other indecent material about
which parents should be informed before it is displayed to
children,'' and to broadcast voluntarily signals containing
these ratings.
On February 29, 1996, all segments of the television industry
created the ``TV Ratings Implementation Group'' (ratings
group),\5\ headed by Motion Picture Association of America
(MPAA) President Jack Valenti. The group submitted its
voluntary age-based ratings proposal to the FCC on January 17,
1997. After industry updated the ratings to include content
specific indicators, the FCC approved the ratings system on
March 12, 1998. In that order, the FCC also required
manufacturers to install V-chips in half of all televisions 13
inches or larger by July 1, 1999, and in all televisions by
January 1, 2000.
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\5\ The Implementation Group included: members from the broadcast
networks; affiliated, independent and public television stations; cable
programmers; producers and distributors of cable programming;
entertainment companies; movie studios; and members of the guilds
representing writers, directors, producers, and actors.
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III. Research on TV Violence
Research has consistently shown a link between viewing
violence on television and violent behavior. Following the
Surgeon General's 1972 report, significant research was
conducted detailing the correlation between viewing violent
television and later aggressive behavior. Several of the
leading medical associations published similar conclusions,
including the American Medical Association, the American
Psychological Association, the American Pediatric Association,
and the American Academy of Pediatrics.\6\
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\6\ Centerwall, Brandon S., Television and Violence: The Scale of
the Problem and Where to Go From Here. JAMA, v. 267, no. 22, June 10,
1992, p.3059.
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For instance, a study by Tanis Williams supports the
conclusion that there is a direct correlation between
television violence and aggressive behavior in children.
Williams, a researcher at the University of British Columbia
studied the impact of television on a small rural community in
Canada that received television signals for the first time in
1973. The researchers observed 45 first and second graders for
signs of inappropriate aggressive behavior. Two years later,
the same group was observed and it was found that the
aggressive behavior in the children increased by 160 percent as
compared to a control group that saw no noticeable increase in
aggressive behavior.\7\
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\7\ Centerwall, Brandon. Television and Violent Crime, Public
Interest, No.111, Spring 1993. p.56.
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In 1982, the National Institute of Mental Health (NIMH)
produced a new report entitled Television and Behavior: Ten
Years ofScientific Progress and Implications for the Eighties.
In contrast to the Surgeon General's 1972 report, the NIMH concluded
that TV violence affects all children, not just those predisposed to
aggression. The 1982 report reaffirmed the conclusions of the earlier
studies stating: ``After 10 more years of research, the consensus among
most of the research community is that violence on television does lead
to aggressive behavior by children and teenagers who watch the
programs. This conclusion is based on laboratory experiments and on
field studies. Not all children become aggressive, of course, but the
correlations between violence and aggression are positive. In
magnitude, television violence is as strongly correlated with
aggressive behavior as any other behavioral variable that has been
measured. The research question has moved from asking whether or not
there is an effect to seeking explanations for the effect.'' \8\
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\8\ The NIMH Report, p.6.
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Not all research, though, supported this conclusion. In 1982,
NBC sponsored a study of the issue and reported there was no
correlation. In addition, a 1984 analysis of all the available
studies by Jonathan L. Freedman, of the Department of
Psychology at the University of Toronto, concluded that the
published studies did not support the hypothesis that viewing
habits of children resulted in subsequent changes in behavior
in children. The Congressional Research Service (CRS) reports
that both the NBC study and the Freedman studies have been
discounted by additional research. In fact, a re-analysis of
the NBC study revealed a direct correlation between viewing
violence and harmful behavioral changes in children.
More recent research adds credibility to the findings of the
National Institute of Mental Health. Two of the most widely
publicized empirical studies adopt two different methodologies,
but arrive at the same result. In one of the studies, Dr.
Leonard Eron followed a group of children in upstate New York
State and examined them at ages eight, 19, and 30. The study
found that the more the participants watched TV at age eight,
the more serious were the crimes of which they were convicted
by age 30, the more aggressive was their behavior when
drinking, and the harsher was the punishment which they
inflicted on their own children. Similar experiments were
conducted in Australia, Finland, Israel, and Poland, and the
outcome was the same in each experiment.
Another study was conducted by Dr. Brandon Centerwall, a
Professor of Epidemiology at the University of Washington. He
studied the homicide rates in South Africa, Canada and the
United States in relation to the introduction of television. In
all three countries, Dr. Centerwall found that the homicide
rate doubled about 10 or 15 years after the introduction of
television. According to Dr. Centerwall, the lag time in each
country reflects the fact that television exerts its behavior-
modifying effects primarily on children, whereas violent
activity is primarily an adult activity. Dr. Centerwall
concludes that ``long-term childhood exposure to television is
a causal factor behind approximately one-half of the homicides
committed in the United States.'' This report \9\ concerning
the harmful impact of viewing television violence on
preadolescent children found that extensive exposure to
television violence could lead to chronic effects extending
into later adolescence and adulthood.
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\9\ Centerwall, p. 3059-3063.
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These studies explore the link between violent television and
violent behavior. However, violent behavior may not be the only
harm caused by television violence. The APA believes that the
harm caused by violent television is broader and includes
fearfulness and callousness:
(1) Viewing violence increases fear of becoming a
victim of violence, with a resultant increase in self-
protective behaviors and increased mistrust of others.
(2) Viewing violence increases desensitization to
violence, resulting in calloused attitudes toward
violence directed at others and a decreased likelihood
to take action on behalf of the victim when violence
occurs (behavioral apathy).
(3) Viewing violence increases viewers' appetites for
becoming involved with violence or exposing themselves
to violence.
IV. The Growth of TV Violence
According to several studies, television violence increased
during the 1980s both during prime-time and during children's
television hours. Children between the ages of two and 11 watch
television an average of 28 hours per week. According to a
University of Pennsylvania study, in 1992 a record 32 violent
acts per hour were recorded during children's shows. The
American Psychological Association (APA) estimates that a
typical child will watch 8,000 murders and 100,000 acts of
violence before finishing elementary school.
A similar story exists for prime-time programming. The
National Coalition on Television Violence (NCTV), a monitoring
and advocacy group, found that 25 percent of the prime-time
shows in the 1992 fall season contained very violent material.
In August 1994, the Center for Media and Public Affairs
released the results of a new survey showing an increase in the
amount of violence on a single day of television in Washington,
D.C. As it did in 1992, the Center monitored 10 channels of
programming (six broadcast channels and 4 cable programs) on a
single day in April. The Center found a 41 percent increase in
television violence over the findings of its 1992 study. The
Center counted 2,605 violent scenes in that day, an average of
almost 15 scenes of violence per channel per hour. Life-
threatening violence increased by 67 percent and incidents
involving gun play rose 45 percent. The Center found that the
greatest sources of violence on television came from ``promos''
for upcoming shows and movies, which were up 69 percent from
1992. Only toy commercials saw a reduction in violence;
violence in toy commercials dropped 85 percent.
Sponsors of these studies believe that there are several
reasons for this increased TV violence. One cause is the
increase in reality shows, such as Cops and Real TV. These
shows describe or provide tape footage from actual police
activity, including efforts to subdue suspects resisting
arrest. Another reason is the increase in violence shown on the
nightly news programs, which may in part result from the
increase in violent acts in society. A very significant factor
is the increase in cable programming that seeks smaller, niche
audiences. According to one study, three of the top four most
violentchannels were cable channels, while the three major
network affiliates and the public broadcasting affiliate were at the
bottom of the list, the 144 music videos on MTV included almost as much
violence as the three network affiliates combined.
Some believe that the most violent programs are cartoons. The
inclusion of fantasy or animated characters in the compilation
of violent programming is controversial. Some observers believe
that cartoon violence should be distinguished from real-life
violence that may glamorize violence. Many child psychologists,
however, believe that young children are especially vulnerable
to violent programs because they are unable to distinguish
between fantasy and reality.
Violence continues to be prevalent on television. In March of
1997, the Center for Communications and Social Policy released
a new study on television violence. The study concluded that
there has been no meaningful change in the presentation of
violence on television during the last two years. Researchers
identified over 18,000 violent incidents in a sample of 2,000
hours drawn from 23 cable and broadcast channels during the
1995-96 television season. Over half of all violent incidents
still fail to show the victim suffering any pain. Long-term
negative consequences from violence are portrayed in only 16
percent of programs this year, compared to 13 percent last
year. Programs that employ a strong anti-violence theme
remained extremely rare, holding constant at 4 percent of all
violent shows last year. More recently, a $3.5 million study
commissioned by the National Cable Television Association
(NCTA) indicated that, from 1996 to 1998, the level of
television violence was relatively constant. That same study,
however, found that violence is increasing during prime time
programming (up 14 percent on the Big Four networks, up 7
percent on independent broadcast stations, and up 10 percent on
basic cable). Almost every study agrees, moreover, that there
is a significant amount of violence on television today during
time periods when children are watching. Moreover, the manner
in which violence is portrayed on television may be a cause for
concern. For example, the NCTA study reports that: ``Much of TV
violence is still glamorized * * * Most violence on television
continues to be sanitized * * * Less than 20 percent of violent
programs portray the long-term damage of violence to the
victim's family, friends, and community * * * Much of the
serious physical aggression on television is still trivialized
* * * Very few programs emphasize an anti-violence theme.''
In addition, as discussed earlier, a 1998 study by the Kaiser
Family Foundation indicates that 79 percent of shows with
moderate levels of violence are not rated for violence. The
study further found that while NBC and BET do not rate their
programs for content, most of the unrated violent programming
is not on those channels. With respect to programming
supposedly designed for children, the Kaiser study found that
no programs rated TV-G receive a V rating for violence.
Moreover, 81 percent of children's programming containing
violence did not even receive the FV rating for fantasy
violence.
V. Anecdotal Evidence of the Effect of TV Violence
In addition to the research, there are several compelling
examples of the effects of television on children. In May 1979,
Johnny Carson used a professional stuntman to hang Carson on
stage. After a noose was placed around Carson's neck, he was
dropped through a trap door and emerged unharmed. The next day,
a young boy, Nicholas DeFilippo, was found dead with a rope
around his neck in front of a TV set tuned to NBC. The parents
of the child sued NBC for negligence, but lost their suit.
Twenty-six people died from self-inflicted gunshot wounds to
the head after watching the Russian Roulette scene in the movie
``The Deer Hunter'' when it was shown on national TV.
``Beavis and Butt-head,'' a cartoon which at one time aired
every day at 7:00 p.m. on MTV, is a parody of two young
teenagers and their view of daily life. The two characters
engage in what some observers view as irresponsible activity,
including cruelty to animals. In particular, the show
occasionally has the two characters suggesting that setting
objects on fire is ``cool.'' It has been alleged that the
cartoon's depiction of unsafe fireplay led one five-year-old in
Ohio to set his family's mobile home on fire, causing the death
of his two-year-old sister in 1993. Although MTV denies any
connection, it subsequently removed all references to fire in
future episodes, and has rescheduled the program to 10:00 p.m.
VI. Response by the Television Community
Although the broadcast community now admits that there is
some link between violent television and violent behavior, the
broadcasters join with the other sectors of the industry in
believing that these findings exaggerate the importance of
television violence. They argue, for instance, that the Eron
and Centerwall studies contain methodological problems because
they fail to take into account other factors that may
contribute to the violent behavior. They argue that income
level, socioeconomic status, and especially the amount of
supervision by parents have a greater impact on violent
behavior than television. One study noted that an increase in
violent behavior by children also was found after children
watched Sesame Street, perhaps the most successful educational
television show. They note that the homicide rate for white
males in the United States and Canada stabilized 15 years after
the introduction of television and did not increase in the
1980s despite the increase in the amount of television
violence. They argue further that in some countries the
introduction of television did not result in increased homicide
rates.
A. Public Service Announcements
Efforts undertaken by industry include public service
announcements (PSAs). For example, in November 1993, NBC
launched a campaign called ``The More You Know'' focusing on
teenage violence and conflict resolution. However, the amount
of time spent on PSAs has decreased during the last few years.
In speeches before the Cellular Telecommunications Industry
Association and the National Association of Broadcasters, Reed
Hundt, then Chairman of the FCC expressed concern about the
diminishing time being spent on PSAs. In 1993, the Big Four
Networks averaged 12 seconds of PSAs per prime-time hour, but
byNovember of 1996 that number was down to 6.2 seconds.\10\
Time spent on PSAs is being eroded, in part because broadcasters are
spending more time on commercials and promotions. In 1995 and 1996, for
example, promotional time at the broadcast networks has increased more
than 25 percent, and in 1996, both CBS and NBC hit all time highs in
the amount of promotional time spent per prime-time hour.\11\
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\10\ Richard Katz, Television: Networks Hit on PSA Loads
(Mediaweek, April 14, 1997).
\11\ Kyle Pope, Networks' Self-promotion Ads Irk FCC (The Arizona
Republic, April 11, 1997).
---------------------------------------------------------------------------
B. Common Television Code
In December 1992, as previously referenced in this report,
three networks (ABC, NBC, and CBS) adopted a common set of
``Standards for the Depiction of Violence in Television
Programs.'' Some observers have criticized these efforts
because the standards adopted by the networks appear weaker
than the networks' own standards.
C. Warning Labels
In June, 1993, the networks also decided voluntarily to place
``warning labels'' before any show which the networks believed
to contain violent material. The three networks committed that,
before and during the broadcasting of various series, movies,
made-for-TV movies, mini-series and specials that might contain
excessive violence, the following announcement would be made:
``Due to some violent content, parental discretion is
advised.'' The warning is also included in advertising and
promotional material for certain programs and is offered to
newspapers and magazines that print television viewing
schedules.
A similar advisory program was adopted by the Independent
Television Association (INTV--the trade group representing many
of the 350 television stations not affiliated with one of the
three networks). All the station members of INTV have adopted
this voluntary code.
Despite the institution of warning labels or perhaps in light
of them, studies demonstrated a significant rise in the level
of violence on television. As stated above, there was a 41
percent increase in the level of television violence between
1992 and 1994. In 1994, there were 2,605 violent scenes in a
day, an average of almost 15 scenes of violence per channel per
hour.
D. Industry's Proposed Ratings System
Pursuant to the Telecommunications Act of 1996, the industry
proposed a ratings system in December of 1996. The voluntary
ratings system, called the TV Parental Guidelines, consisted of
six age-based ratings categories, which resemble the Motion
Picture Ratings System. TV-Y, TV-Y7, TV-G, TV-PG, TV-14, and
TV-M. The industry responded to the immediate and harsh
criticism of these ratings by developing additional, specific
ratings for content.
The industry ratings system, called the TV Parental
Guidelines, consists of the following age-based and content
specific ratings categories. This system was approved by the
FCC in 1998. The following categories apply to programs
designed for the children:
TV-Y All Children.--This program is designed to be
appropriate for all children. Whether animated or live-
action, the themes and elements in this program are
specifically designed for a very young audience,
including children from ages two to six. This program
is not expected to frighten younger children.
TV-Y7 Directed to Older Children.--This program is
designed for children age seven and above. It may be
more appropriate for children who have acquired the
developmental skills needed to distinguish between
make-believe and reality. Themes and elements in this
program may include mild physical or comedic violence,
or may frighten children under the age of seven.
Therefore, parents may wish to consider the suitability
of this program for their very young children. Note:
For those programs where fantasy violence may be more
intense or more combative than other programs in this
category, such programs will be designated TV-Y7-FV.
The following categories apply to programs designed for the
entire audience:
TV-G General Audience.--Most parents would find this
program suitable for all ages. Although this rating
does not signify a program designed specifically for
children, most parents may let younger children watch
this program unattended. It contains little or no
violence, no strong language and little or no sexual
dialogue or situations.
TV-PG Parental Guidance Suggested.--This program
contains material that parents may find unsuitable for
younger children. Many parents may want to watch it
with their younger children. The theme itself may call
for parental guidance and/or the program contains one
or more of the following: moderate violence (V), some
sexual situations (S), infrequent coarse language (L),
or some suggestive dialogue (D).
TV-14 Parents Strongly Cautioned.--This program
contains some material that many parents would find
unsuitable for children under 14 years of age. Parents
are strongly urged to exercise greater care in
monitoring this program and are cautioned against
letting children under the age of 14 watch unattended.
This program contains one or more of the following:
intense violence (V), intense sexual situations (S),
strong coarse language (L), or intensely suggestive
dialogue (D).
TV-MA Mature Audience Only.--This program is
specially designed to be viewed by adults and therefore
may be unsuitable for children under 17. This program
contains one or more of the following: graphic violence
(V), explicit sexual activity (S), or crude indecent
language (L).
All television programming except for news and sports are
supposed to be rated according to these guidelines. The ratings
are assigned in most cases by broadcast and cable networks and
producers. The ratings are supposed to appear before each
program, with the ratings icons appearing for 15 seconds at the
beginning of each program in the upper left-hand corner of the
television screen. Ninety percent of all programming now
contains some encoded ratings which are capable of interacting
with the V-chip.
While the ratings group supplies the guidelines and
explanations to newspapers and other program listings,
including TV Guide and cable's Preview Channel, many outlets do
not depict the ratings.
VII. Actions in Other Countries
In 1994, the Canadian broadcasters, under pressure from the
Canadian Government, instituted a new voluntary Code Against
Violence for television that took effect in 1997. The code bans
shows with gratuitous violence and limits those shows that
include scenes of violence suitable for adults only to the
hours after 9 p.m. The code places limits on children's shows
by requiring that violence not be a central theme. Also, it
stipulates that, in children's programs, violence not be shown
as a preferred way of solving problems and that the
consequences of violence be demonstrated.
Other countries that have adopted rules restricting violence
to certain hours of the day include Australia, France, Italy
and New Zealand.
VIII. Constitutional Analysis
Some have questioned whether limiting the distribution of
violent programming to certain hours of the day would be
consistent with the First Amendment of the Constitution.
Attorney General Janet Reno responded to some of these
questions when she testified in October, 1993, that the safe
harbor approach in S. 1383 and the other bills before the
Committee at that time were constitutional.\12\
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\12\ Testimony of Attorney General Janet Reno, Hearing on S. 1383,
the Children's Protection from Violent Programming Act of 1993, et al.,
before the Senate Committee on Commerce, Science, and Transportation,
October 20, 1993, pp. 30, 42.
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There are several exceptions to the First Amendment that
permit government regulation of content. According to a study
by the Congressional Research Service (CRS),\13\ the Supreme
Court has allowed Government regulation of obscenity,
indecency, child pornography, and speech that creates a clear
and present danger. In addition, CRS notes that the courts
provide only limited First Amendment protection to commercial
speech, to defamation, and to speech that can be harmful to
children. CRS further notes that ``even speech that enjoys the
most extensive First Amendment protection may be restricted on
the basis of its content if the restriction passes `strict
scrutiny'.'' \14\ Finally, CRS notes that the courts will allow
certain time, place and manner restrictions.
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\13\ ``Freedom of Speech and Press: Exceptions to the First
Amendment'', Henry Cohen, American Law Division, Congressional Research
Service, April 7, 1992, Revised July 6, 1993.
\14\ ``Strict scrutiny'' requires the government to show that the
restriction serves to promote a compelling Governmental interest and is
the least restrictive means to further the articulated interest. See,
Sable Communications of California v. Federal Communications
Commission, 492 U.S. 115, 126 (1989) (Sable).
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While no court has ruled specifically on the
constitutionality of the approach taken by S. 876, there appear
to be many lines of decisions that would support the
constitutionality of the safe harbor approach to television
violence. S. 876 could fall within the ambit of the clear and
present danger exception, the limitations on commercial speech
and speech harmful to children, the strict scrutiny test, and a
regulation of time, place and manner. The following discussion
focuses on the recent opinions concerning broadcast indecency
and the strict scrutiny test as examples of the lines
ofanalysis that appear to support the constitutionality of the safe
harbor approach. This discussion is not exhaustive, and there may well
be arguments to justify the legislation which do not appear below.
A. Safe Harbor under an ACT IV Case Analysis
A Court of Appeals decision in ACT IV \15\ to uphold the safe
harbor for broadcast indecency provides, perhaps, the best
indication that the courts would uphold the safe harbor
approach for television violence.
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\15\ Action for Children's Television, et al. v. FCC, et al., 58
F.3d 654 (D.C. Cir. 1995) cert. denied 116 S.Ct. 701 (1996).
---------------------------------------------------------------------------
In 1992, Congress enacted legislation sponsored by Senator
Robert Byrd to prohibit the broadcast of indecent programming
during certain hours of the day. The Byrd amendment allowed
indecent broadcasts between the hours of midnight and 6 a.m.,
except that public broadcast stations that go off the air at
midnight or before were permitted to air indecent broadcasts as
early as 10 p.m.\16\
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\16\ Congress had already prohibited obscene and indecent
broadcasts many years earlier. Section 1464 of title 18 of the United
States Code prohibits the broadcast of any obscene, indecent, or
profane language by means of radio communication. This section was
enacted as part of section 326 of the Communications Act of 1934 and
was moved into title 18 in 1948.
---------------------------------------------------------------------------
On June 30, 1995, the United States Court of Appeals for the
District of Columbia, sitting en banc, upheld the
constitutionality of the Byrd amendment in ACT IV. The court
found, in a seven to four opinion, that the safe harbor
approach, also called ``channeling,'' satisfied the two-part
``strict scrutiny'' test.\17\
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\17\ While the court upheld the safe harbor approach implemented by
the Byrd amendment, it found that the different treatment of certain
public broadcast stations and other stations was unjustified. The court
thus directed the FCC to modify its rules to apply a consistent safe
harbor of 6 a.m. to 10 p.m. for all broadcast stations.
---------------------------------------------------------------------------
The court found that the Government met the first prong of
the test by establishing that the Government had a ``compelling
governmental interest'' in protecting children from the harm
caused by indecency. The court found two compelling
governmental interests, and left open the possibility of a
third.\18\ First, the court found that ``the Government has a
compelling interest in supporting parental supervision of what
children see and hear on the public airwaves.'' \19\ The court
cited Ginsberg v. New York, 390 U.S. 629, 638, for the
proposition that Government has a ``fundamental interest in
helping parents exercise their `primary responsibility for
[their] children's well-being' with `laws designed to aid [in
the] discharge of that responsibility.'' \20\ Second, the court
found that ``the Government's own interest in the well-being of
minors provides an independent justification for the regulation
of broadcast indecency.''. It quoted the Supreme Court again in
New York v. Ferber, 458 U.S. 747, 756-57 (1982) for the
proposition that ``* * * a State's interest in safeguarding the
physical and psychological well-being of a minor is compelling.
A democratic society rests, for its continuance, upon the
healthy, well-rounded growth of young people into full maturity
as citizens. Accordingly, we have sustained legislation aimed
at protecting the physical and emotional well-being of youth
even when the laws have operated in the sensitive area of
constitutionally protected rights.'' \21\
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\18\ The court found it unnecessary to address the FCC's contention
that there is also a compelling Governmental interest in protecting the
home against intrusion by offensive broadcasts. ACT IV, at 13.
\19\ ACT IV, at 661.
\20\ ACT IV, at 661.
\21\ ACT IV, at 661.
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The court found that the legislation met the second prong of
the test because it uses the ``least restrictive means'' to
accomplish that governmental interest. Here, the court noted
that, in choosing the hours during which indecency would be
banned, the Government must balance the interests of protecting
children with the interests of adults. ``The question, then, is
what period will serve the compelling governmental interests
without unduly infringing on the adult population's right to
see and hear indecent material.'' \22\
---------------------------------------------------------------------------
\22\ ACT IV, at 665.
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After reviewing the evidence compiled by the FCC, the court
upheld the determination that a ban on indecent programming
during the hours of 6:00 a.m. to 10:00 p.m. satisfied the
balance and was the least restrictive means. The court noted
that, to the extent that such a ban affected the rights of
adults to hear such programming, ``adults have alternative
means of satisfying their interest in indecent material at
other hours in ways that pose no risk to minors [such as
renting videotapes, computer services, audio tapes, etc.].''
\23\ The court stated further that, ``[a]lthough the
restrictions burden the rights of many adults, it seems
entirely appropriate that the marginal convenience of some
adults be made to yield to the imperative needs of the young.''
\24\
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\23\ ACT IV, at 666.
\24\ ACT IV, at 667.
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The reasoning of the court in ACT IV appears to apply equally
to S. 876. As with indecency, the Government has a compelling
interest in protecting the moral and psychological well-being
of children against the harm of viewing television violence.
Also as with indecency, restricting television violence to
certain hours of the day balances the rights of adults to watch
violent programming with the interests of protecting children.
Adults have other ways of obtaining access to violent
programming just as they have other ways of obtaining indecent
materials. Thus, the decision upholding the safe harbor for
indecency appears to provide strong support for finding a safe
harbor for violence to be constitutional.
B. The Strict Scrutiny Test
The strict scrutiny test is the most stringent test used to
analyze the constitutionality of a First Amendment challenge.
The ACT IV court as discussed above, used a strict scrutiny
analysis in determining constitutionality. The following
discussion further assesses the safe harbor approach under
strict scrutiny, not because of the certainty that this is the
test that will be applied, but because, if the safe harbor
approach can pass the strict scrutiny test, it could certainly
pass any lesser standard of review. Regulation will pass the
strict scrutiny test if the regulation is narrowly tailored to
meet a compelling government interest.
There is good reason to believe that S. 876 would pass the
strict scrutiny test, and not just because of the results of
the strict scrutiny analysis under the ACT IV case. In some
respects, the constitutionality of a safe harbor approach for
violence could be easier to sustain than for indecency. As
opposed to the indecency issue, Congress has developed a long
and detailed record to justify the legislation. Congress has
held hearings to explore various approaches to television
violence in every decade since the 1950's. This Committee alone
has held 23 hearings over the past three decades on this topic,
including at least three hearings specifically on the safe
harbor approach. The Committee has laid extensive groundwork
for considering the least restrictive means of protecting
children from violence on television. By contrast, the Byrd
amendment, the legislation at issue in the ACT IV case, was
adopted on the Senate floor without any Committee hearings.
Furthermore, as Chief Judge Edwards of the D.C. Circuit has
acknowledged twice, there is much stronger evidence that
viewing violence on television causes harm to children than any
proposed harm caused by indecency.\25\
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\25\ ``There is significant evidence suggesting a causal connection
between viewing violence on television and antisocial violent behavior.
. .'' (emphasis in original) ACT IV, Edwards, C.J., dissenting, at 671.
---------------------------------------------------------------------------
1. The Compelling Governmental Interest.--The Government has
several compelling interests in protecting children from the
harmful effects of viewing violence: an interest in protecting
children from harm, an interest in protecting society in
general, an interest in helping parents raise their children,
and an interest in the privacy of the home. Each of these are
discussed below.
A. Harm to Children.--Government has a compelling interest in
protecting children from the harm caused by television
violence. As several witnesses testified, there is little doubt
that children's viewing of violence on television encourages
them to engage in violent and anti-social behavior, either as
children or later as adults. More than 200 independent studies
demonstrate a causal connection between viewing violence and
violent behavior.\26\ These studies have included field studies
of the effect of television on persons in real life and
laboratory studies. While the studies concluded in 1972 by the
Surgeon General concluded that there was a causal relationship
between viewing violence and behavior primarily among those
children predisposed to violence, more recent research by NIMH
and others demonstrates that violent television affects almost
all children. Dr. Eron stated in his testimony before the
Committee as follows:
---------------------------------------------------------------------------
\26\ Among these are studies conducted by the American Medical
Association, the American Psychological Association, the National
Institute of Mental Health, the Center for Disease Control, and
numerous studies by individual researchers.
---------------------------------------------------------------------------
One of the places violence is learned is on television. Over
35 years of laboratory and real-life studies provide evidence
that televised violence is a cause of aggression among
children, both contemporaneously, and over time. Television
violence affects youngsters of all ages, both genders, at all
socio-economic levels, and all levels of intelligence. The
effect is not limited to children who are already disposed to
being aggressive, and it is not restricted to the United
States.\27\
---------------------------------------------------------------------------
\27\ Written Testimony of Dr. Leonard Eron, Professor of Psychology
and Senior Research Scientist, Institute for Social Research,
University of Michigan before the Senate Committee on Commerce, Science
and Transportation, Communications Subcommittee, May 18, 1999.
---------------------------------------------------------------------------
While it is perhaps axiomatic that children who become
violent because of television suffer harm, it is worth noting
that such children suffer harm in many ways. For example, they
can become anti-social, distant from others, and unproductive
members of society,especially if their actions arouse fear in
other people. They can suffer from imprisonment or other forms of
criminal punishment if their violence leads to illegal behavior.
Violent behavior may not be the only harm caused by viewing
violent television. According to the American Psychological
Association, viewing violence can cause fearfulness,
desensitization, or an increased appetite for more violence. In
other words, as with ``obscenity'' and ``indecency'', the harm
from television violence may result simply from viewing violent
material, even if no violent behavior follows such viewing.
B. Harm to Society.--A related compelling Governmental
interest is the need to protect society as a whole from the
harmful results of television-induced violent behavior. A child
who views excessive amounts of television violence is not the
only person who suffers harm. As Dr. Eron testified, children
who watch excessive amounts of television when they are young
are more ``prone to be convicted for more serious crimes by age
30; more aggressive while under the influence of alcohol; and,
harsher in the punishment they administered to their own
children.'' \28\
---------------------------------------------------------------------------
\28\ Written Testimony of Dr. Eron before the Senate Committee on
Commerce, Science, and Transportation Communications Subcommittee, July
12, 1995, p. 2. Dr. Eron further warns that ``. . . like secondary
smoke effects, . . . don't think that just because you have protected
your child from the effects of television violence that your child is
not affected. You and your child might be the victims of violence
perpetrated by someone who as a youngster, did learn the motivation for
and the techniques of violence from television.'' Written Testimony of
Dr. Eron's July 12, 1995.
---------------------------------------------------------------------------
C. Helping Parents Supervise Their Children.--In addition to
the Governmental interests in protecting children and society
from harm, the courts have also recognized a compelling
governmental interest in helping parents supervise what their
children watch on television. In Ginsberg, the Supreme Court
upheld a New York statute making it illegal to sell obscene
materials to children. The Court noted that it was proper for
legislation to help parents exercise their ``primary
responsibility for [their] children's well-being with laws
designed to aid [in the] discharge of that responsibility.''
\29\
---------------------------------------------------------------------------
\29\ Ginsberg v. New York, 390 U.S. 629,639 (1968).
---------------------------------------------------------------------------
D. Privacy of the Home.--``The Government's interest in
protecting the privacy of the home from intrusion by violent
programming may provide a fourth compelling Governmental
interest. The Supreme Court has recognized that ``in the
privacy of the home * * * the individual's right to be left
alone plainly outweighs the First Amendment rights of an
intruder.'' \30\ The right to privacy in one's home was
recently used to uphold legislation limiting persons from
making automated telephone calls to residences and small
businesses.\31\ Just as subscribers to telephones do not give
permission to telemarketers to place automated telephone calls,
the ownership of a television does not give programmers
permission to broadcast material that is an intrusion into the
privacy of the home.
---------------------------------------------------------------------------
\30\ FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978).
\31\ Moser v. FCC, (1995, CA9 Or), 46 F3d 970.
---------------------------------------------------------------------------
2. The Least Restrictive Means.--Opponents of the legislation
argue that the safe harbor approach to television violence is
not the least restrictive means of accomplishing the goals of
reducing the exposure of children to television violence. Some
in the broadcast industry, for instance, argue that the
industry should be trusted to regulate itself to reduce the
amount of violence. Parents should bear the primary
responsibility for protecting their children, according to some
observers. Others say that the warnings and advisories that
many programmers now add to certain shows are a lesser
restrictive means of protecting children. In addition,
opponents of legislation urge that the V-chip and the
television ratings system provide a less restrictive means of
protecting children.
The most recent case addressing this issue is United States
v. Playboy, 120 S. Ct. 1878 (May 22, 2000). In Playboy, the
Supreme Court invalidated a provision added in the
Telecommunications Act of 1996 that required cable operators to
either scramble sexually explicit channels in full, or limit
programming on such channels to hours when children are not
likely to be watching. The Court held that the provision was a
content based restriction. The Court further held that the
requirements of the provision were not the least restrictive
means of achieving the government's goal. The Court found that
another provision in the Telecommunications Act, that required
cable operators to fully block any channel upon request by a
subscriber--was a less restrictive alternative. The Court added
that even if this option was not widely used by cable
subscribers, the government bears the burden of proving that
the available alternative is not effective.
The substitute amendment adapted to S. 876 by the Commerce
Committee is crafted in part to respond to Playboy. The FCC is
only directed to implement a safe harbor for violence after it
determines that the V-chip and ratings system are ineffective
alternative means of protecting children from television
violence. Prior to reaching such a determination, the FCC is
directed to prohibit violent programming that is not
electronically blockable, i.e. that is not encoded specifically
with a rating for violence.
While the Committee cannot predict the outcome of the FCC's
analysis of the effectiveness of the V-chip and the ratings
system, the Committee does note that parental supervision alone
may not sufficiently protect children from violence on
television. For example, the problem of children's exposure to
violence on television is especially acute for residents of
inner city neighborhoods. According to Gael Davis of the
National Council of Negro Women, who herself was the victim of
a random gunshot by an urban youth, ``Violence is the No. 1
cause of death in the African-American community. * * * [I]n
south central [Los Angeles], * * * [t]he environment is
permeated with violence. It is unsafe for children to walk to
and from school. We have 80 percent latchkey children, where
there will be no parent in the home during the afterschool
hours when they are viewing the television. The television has
truly become our electronic babysitter.'' \32\
---------------------------------------------------------------------------
\32\ Testimony of Gael T. Davis, President, East Side Section,
National Council of Negro Women, Hearing on S. 1383, the Children's
Protection from Violent Programming Act of 1993, et al. before the
Senate Committee on Commerce, Science and Transportation, October 20,
1993.
---------------------------------------------------------------------------
Many children do not have the benefit of parents willing and
able to monitor the television programming they watch.
According to William Abbott of the Foundation to Improve
Television, ``millionsof children watch television
unsupervised, one-fourth of our children have but a single parent (the
latch-key kids).'' \33\
---------------------------------------------------------------------------
\33\ Testimony of William Abbott, President, Foundation to Improve
Television, before the Committee on Commerce, Science and
Transportation, Hearing on Television Violence, July 12, 1995.
---------------------------------------------------------------------------
Under the ``strict scrutiny'' test, a regulation that
limits freedom of speech based on the content must use ``the
least restrictive means to further the articulated interest.''
\34\ As the following discussion explains, in the absence of an
effective V-chip and content based ratings system, the safe
harbor approach is the only approach that has a significant
chance of furthering the compelling governmental interest in
protecting American children from the impact of television
violence.
---------------------------------------------------------------------------
\34\ Sable, at 126.
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A. Industry Self-regulation.--As discussed earlier, the
television industry has been directed to improve its
programming by Congress for over 40 years. The first
Congressional hearings on television violence were held in
1952. Hearings were held in the Senate in 1954 and again in the
1960's, the 1970's, 1980's and 1990's, and again, this year in
2000. At each hearing, representatives of the television
industry testified that they were committed to ensuring that
their programming was safe and appropriate for children. In
1972, the Surgeon General called for Congressional action, but
this call was ignored after the broadcast industry reached an
agreement with the FCC to restrict violent programs and
programs unsuitable for children during the family hour.
There is substantial evidence, however, that despite the
promises of the television industry, the amount of violence on
television is far greater than the amount of violence in
society and continues to increase. According to one study,
``[s]ince 1955, television characters have been murdered at a
rate one thousand times higher than real-world victims. Indeed,
television violence has far outstripped reality since the
1950s.'' \35\ As noted earlier, the American Academy of
Pediatrics recorded a threefold increase in the amount of
violence on television during the 1980's.
---------------------------------------------------------------------------
\35\ S. Robert Lichter, Linda S. Lichter and Stanley Rothman, Prime
Time: How TV portrays American Culture, (Regnery Publishing, Inc.,
Washington, D.C., 1994), p. 275.
---------------------------------------------------------------------------
The incentives of the television industry can be illustrated
by a quote from a memo giving directions to the writers of the
program ``Man Against Crime'' on CBS in 1953:
It has been found that we retain audience interest
best when our stories are concerned with murder.
Therefore, although other crimes may be introduced,
somebody must be murdered, preferably early, with the
threat of more violence to come.\36\
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\36\ Quoted in Eric Barnouw, The Image Empire, p. 23.
In December, 1992, the four broadcast networks released a
common code of conduct that many criticized for being weaker
than the networks' own code of practices. In any case, the code
appears to have had little effect on the amount of violence on
television. In December of 1996, the industry proposed a
ratings system which has been sharply criticized for being age
and not content based.
B. Warning Labels.--Some observers argue that a requirement
to put warnings or parental advisories before certain violent
programs would be a less restrictive means of satisfying the
Government's interest in protecting children. The Committee has
received no evidence, however, that such warnings accomplish
the purpose of protecting children.\37\ In fact, recent reports
indicate a continuing increase in the violence on television.
Despite the industry's efforts to air such advisories on their
own initiative, the National Parent-Teachers Association and
the Foundation to Improve Television has supported a safe
harbor as a more effective approach. Indeed, there is some
reason to believe that advisories may increase the amount of
violence on television, if the television industry believes
that it has provided notice to parents to protect itself from
criticism. Some observers believe that programmers may want a
warning label to be placed on a program in order to attract
viewers.\38\
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\37\ The Committee notes that it has received no evidence
indicating that the warning labels on music records and compact discs
has reduced the exposure of children to inappropriate lyrics.
\38\ For example, Ms. Lindsay Wagner, a television actress,
testified in 1993 that film makers sometimes lobby to get an R rating.
``We now have a couple of generations that have been reared on violence
for fun and many flock to the films with warnings.'' Testimony of Ms.
Lindsay Wagner, Hearing on S. 1383, the Children's Protection from
Violent Programming Act of 1993, before the Committee on Commerce,
Science, and Transportation.
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Without parental supervision, such warning labels may have
the opposite effect of increasing the appetite of children for
violent shows. Further, it is difficult to believe that such
warnings would be effective in the age of channel surfing.
Warnings that appear once at the very beginning of a program
may not be seen by a viewer who does not see the beginning of a
program.
C. Parental Responsibility and Control Technologies.--Some
observers believe that parents should bear the primary
responsibility for protecting their children from violent
programming, and a variety of technologies that are now
available to television consumers can assist parents in
controlling the programs that their children watch. For several
reasons, it is not clear that either of these approaches will
be effective.
Even when parents are available and concerned about the
television programs that their children watch, they may not be
able to monitor their children's television viewing habits at
all times. According to one survey, 66 percent of homes have
more than three or more television sets, and 54 percent of
children have a TV set in their own bedrooms. Children often
watch television unsupervised. In fact 55 percent of children
usually watch television alone or with friends, but not with
their families.
The implementation of the safe harbor approach is contingent
upon the FCC finding that the content based ratings system,
when used in conjunction with the V-chip, provides an
ineffective means of protecting children from television
violence. If the FCC makes such a determination, it is unlikely
that other technology based solutions will more appropriately
address the issue of children and television violence. In
addition, technology based solutions require parents to be able
to afford to spend money to purchase the new technologies.
Development of such technologies are also uncertain. There are
also questions about the ability of parents to program the
technologies effectively. In many households, the children
often are more comfortable with the technologies than the
parents.
C. Additional Issues
1. Definition of Violence.--Some have raised questions about
the definition of violence in S. 876. Some have criticized the
legislationfor failing to include a definition; others state
that it is inherently impossible to craft a definition that would not
be overbroad or vague in violation of the constitutional requirements
set down by the Supreme Court.
S. 876 adopts the same approach toward violent video
programming as Congress has previously adopted for indecency.
Section 1464 of title 18 prohibits the broadcast of indecency
but does not contain a definition of the term. In 1975, the FCC
adopted a definition of indecency that the courts have found to
be proper. While it may be difficult to craft a definition that
reflects the context of violence, that is not overbroad, that
is not vague, and that is consistent with the research of harm
caused to children, these are exactly the tasks that the FCC
was created to perform. The FCC can hold its own hearings, seek
comment from the industry and the public, and review the
research in detail in order to come up with a definition.
Some observers cite the case of Video Software Dealers
Association v. Webster to support the position that legislation
to restrict violent video is unconstitutional.\39\ That case,
however, concerned a statute that neither contained a
definition of violence nor delegated the definition to a
regulatory agency. S. 876, by contrast, does not take effect
until the FCC issues a definition of violence. In Davis-Kidd
Books v. McWherter, the court overturned a statute that
contained a definition of violence that was overly vague.\40\
While this case demonstrates the difficulty of defining
violence, it does not stand for the proposition that violence
is incapable of being defined. If the FCC fails to come up with
a definition of violent video programming that satisfies
constitutional scrutiny, the legislation authorizes the FCC to
try again until it does.
---------------------------------------------------------------------------
\39\ Video Software Dealer's Association v. Webster, 968 F.2d 684
(8th Cir. 1992).
\40\ Davis-Kidd Books v. McWherter, 866 S.W.2d 250 (1993).
---------------------------------------------------------------------------
2. Applicability to Cable Television and Other Broadcast
Technologies.--Other observers question the constitutionality
of restricting violence on cable television and other
distribution media in addition to broadcasting. They note that
Red Lion, Pacifica, and the line of ACT cases pertained only to
broadcasting, not to cable or any other form of media.
There are several responses to this argument. First, the
strict scrutiny test applies to any content regulation, not
just those imposed on broadcast stations. Court cases indicate
that a restriction on violent video programming could,
potentially, be imposed on any media if it satisfies the strict
scrutiny test.\41\
---------------------------------------------------------------------------
\41\ The court in ACT IV states, ``[W]e apply strict scrutiny to
regulations of this kind [concerning indecency] regardless of the
medium affected by them * * *''. ACT IV, at 12.
---------------------------------------------------------------------------
The court's rationale for subjecting broadcasting to a more
restrictive treatment includes, the scarcity of broadcast
frequencies, the pervasive presence of broadcast, and
accessibility of broadcast to children. In recognizing the
special status of broadcasting, the Supreme Court, in the
National Broadcasting Co. and Red Lion cases, concluded that
due to their scarcity, broadcast frequencies are not available
to all who may wish to use them. Therefore, regulation is vital
to the development of broadcasting.
The Supreme Court in ACT IV, addressed the pervasive presence
of broadcast and its accessibility to children. The Court
stated that:
First, the broadcast media have established a
uniquely pervasive presence in the lives of all
Americans. Patently offensive, indecent material
presented over the airwaves confronts the citizen, not
only in public, but also in the privacy of the home, *
* *. Second, broadcasting is uniquely accessible to
children * * * The ease with which children may obtain
access to broadcast material, * * * amply justifies
special treatment of indecent broadcasting.\42\
---------------------------------------------------------------------------
\42\ Pacifica, at 748-750.
The ACT IV court further noted that ``broadcast audiences
have no choice but to `subscribe' to the entire output of
traditional broadcasters.'' \43\
---------------------------------------------------------------------------
\43\ ACT IV, at 12.
---------------------------------------------------------------------------
Just as with broadcast television, non-premium cable service
has grown to have a uniquely pervasive presence in the lives of
all Americans and is uniquely accessible to children. Over 60
percent of consumers now receive some form of cable service.
Because of the must-carry rules, almost all of these
subscribers now receive their broadcast signals through their
cable systems. From the perspective of the viewer, and
especially children, there is little if any distinction between
the broadcast programs that come in over the cable system and
the cable-only programs. Indeed, cable television service has
become so important a service to the average American that
Congress has required the rates for cable television to be
regulated.\44\ It is the Committee's belief that satellite
programming will approach cable's influence in the coming
years, and is therefore regulable under S. 876.
---------------------------------------------------------------------------
\44\ See, the Cable Television Consumer Protection and Competition
Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (The 1992 Cable Act).
---------------------------------------------------------------------------
Two more recent cases have indicated that it is permissible
to regulate other technologies such as cable. The Supreme
Court, in Denver Area Educational Telecommunications Consortium
\45\ addressed the constitutionality of section 10 of the Cable
Television Consumer Protection and Competition Act of 1992.
Although the Court struck certain provisions of section 10, it
held that section 10(a), which permits cable operators to
decide whether or not to broadcast indecent programs on leased
access channels, is consistent with the First Amendment.
---------------------------------------------------------------------------
\45\ Denver Area Educational Telecommunications Consortium, Inc. v.
FCC, 116 S.Ct. 2374 (1996).
---------------------------------------------------------------------------
In Playboy, the Supreme Court addressed the constitutionality
of section 505 of the Telecommunications Act of 1996. While the
court struck down the provisions in question, it did so on the
grounds that it was not the least restrictive alternative, not
because Congress cannot regulate content on cable.
In fact, the District Court opinion in Playboy stated that:
``* * * cable television is a means of communication which is
pervasive and * * * [t]he Supreme Court has recognized that
cable television is as accessible to children as over-the-air
broadcasting, if not more so.'' Moreover, the Supreme Court in
its consideration of freedom of speech under the First
Amendment has recognized the need to protect children from
sexually explicit material, particularly in the context of a
pervasive medium.\46\
---------------------------------------------------------------------------
\46\ Playboy Entertainment Group, 945 F. Supr. 722 (1996).
---------------------------------------------------------------------------
S. 876, is not intended to apply to premium or pay-per-view
channels in recognition of the fact that parents have the
choice to subscribe to these channels on an individual basis.
This distinction between premium channels and pay-per-view
programs, on the one hand, and basic or expanded basic packages
of cable or satellite programs, on the other, demonstrates the
Committee's attempt to balance the rights of children and the
legitimate rights of parents to watch the programs that they
want to watch. In this way, the legislation avoids
unnecessarily interfering with parents' First Amendment rights
in order to meet the least restrictive means test.
Legislative History
In October, 1993, the Senate Commerce Committee held a
hearing on television violence to consider a variety of
legislative proposals. Attorney General Janet Reno testified
that the legislation currently pending before the Committee,
including S.1383, the Hollings-Inouye legislation establishing
a safe harbor for violent programming, would be constitutional.
The broadcast networks and other industry representatives
argued that the amount of violent programming was less than in
previous years. The industry also testified that the industry
should be given more time to implement its warning labels
before legislation should be considered.
On July 11, 1995, the Committee held its second hearing on
television violence to consider pending measures, including S.
470, the Hollings' safe harbor legislation. S. 470 (104th
Congress) is identical to S. 1383 (103rd Congress). The
Committee subsequently reported S. 470, as introduced, on
August 10, 1995 by a recorded vote of 16 yeas and 1 nay, with
two Senators not voting. No further action was taken during the
104th Congress.
On February 26, 1997, Senator Hollings with Senators Inouye
and Dorgan as co-sponsors, introduced S. 363. S. 363 was
similar to S. 470 but allowed the Commission to implement a
safe harbor if it does not implement a content-based ratings
system. On February 27, 1997, the Committee held another
hearing on television violence in which S. 363 was addressed.
Groups such as the American Psychiatric Association expressed
their disapproval of the current age based rating system
proposed by the industry and noted their preference for a
content-based ratings system. Kevin Saunders, Professor of Law
at the University of Oklahoma, testified that violent
programming could arguably be considered obscene or indecent
and the safe harbor approach is constitutional.\47\
---------------------------------------------------------------------------
\47\ Testimony of Kevin Saunders, J.D., PH.D before the Senate
Committee on Commerce, Science and Transportation, February 27, 1997 at
pp. 17 and 7.
---------------------------------------------------------------------------
On May 1, 1997, the Committee reported S. 363 with one
amendment to add findings by a recorded vote of 19 yeas and 1
nay.
On April 26, 1999, Senator Hollings introduced S. 876, safe
harbor legislation that was substantially similar to S. 470 and
S. 1383, in previous Congresses. The bill is co-sponsored by
Senators Byrd, Durbin, and Inouye.
On May 13, 1999, the Committee held its third hearing on
television violence and safe harbor legislation. Senator
Hollings' bill, S. 876 was discussed at length, and testimony
was offered as to the constitutionality of the measure as well
as the adverse harm to children affected by exposure to
violence on television.
On September 20, 2000 the Committee reported S. 876 as
amended by a recorded vote of 17 yeas, 1 nay, and 1 present.
Estimated Costs
In accordance with paragraph 11(a)(3) of rule XXVI of the
Standing Rules of the Senate, the Committee states that, in its
opinion, it is necessary to dispense with the requirements of
subsection (a)(1) of that paragraph in order to expedite the
business of the Senate.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
Section-by-Section Analysis
Section 1. Short title
This Act is entitled the ``Children's Protection from Violent
Programming Act.''
Sec. 2. Findings
Expresses the findings made by the Committee in support of
the legislation.
Sec. 3. Assessment of effectiveness of current ratings system for
violence and effectiveness of v-chip in blocking violent
programming
This section directs the Federal Communications Commission to
assess the effectiveness of measures to require television
broadcasters and multi channel video programming distributors
to rate and encode programming that could be blocked by parents
using the V-chip undertaken under section 715 of the
Communications Act of 1934, and subsections (w) and (x) of
section 303 of that Act.
The FCC is required to report its findings to the Committee
on Commerce, Science, and Transportation of the United States
Senate and the Committee on Commerce of the United States House
of Representatives within 12 months of enactment, and annually
thereafter.
If the FCC finds as a result of its ongoing assessment
responsibilities described above, that the measures referred to
are insufficiently effective, then the Commission shall
complete a rulemaking, within 270 days after the date on which
the Commission makes such a finding, to prohibit the
distribution of violent video programming during the hours when
children are reasonably likely to comprise a substantial
portion of the audience.
Any term used in this section that is defined in section 715
of the Communications Act or the regulations issued thereunder,
has the same meaning as when used in that section or in those
regulations.
Sec. 4. Unlawful distribution of violent video programming that is not
specifically rated for violence and therefore is not blockable
This section amends title VII of the Communications Act of
1934 (47 U.S.C. 701 et seq.) in the following manner:
This section creates a new section 715 under which it shall
be unlawful for any person to distribute to the public any
violent video programming not blockable by electronic means
specifically on the basis of its violent content during hours
when children are reasonably likely to comprise a substantial
portion of the audience.
The FCC is directed to conduct a rulemaking and promulgate
regulations to implement the provisions of this section within
nine months of enactment.
In that proceeding, the Commission may exempt programming
that does not conflict with the objective of protecting
children from the negative influences of violent video
programming, as that objective is reflected in the findings of
section 551(a) of the Telecommunications Act of 1996. Such
exempt programming could include news programs and sporting
events.
The FCC is directed to exempt premium and pay-per-view cable
and direct-to-home satellite programming.
The FCC is directed to define the term ``hours when children
are reasonably likely to comprise a substantial portion of the
audience'' and the term ``violent video programming.''
The Commission is directed to impose a forfeiture penalty of
not more than $25,000 on any person who violates this section
or any regulation promulgated thereunder for each such
violation. Each day on which such violation occurs is a
separate violation. If a person repeatedly violates this
section or any regulation promulgated thereunder, the FCC shall
after notice and opportunity for hearing, revoke any license
issued under this Act. Compliance with this section and the
regulations promulgated thereunder shall be an element for
consideration by the Commission when it reviews an application
for renewal of a license under this Act.
The term ``blockable by electronic means'' means blockable by
the feature described in section 303(x).
The term ``distribute'' means to send, transmit, retransmit,
telecast, broadcast, or cablecast, including by wire,
microwave, or satellite, but it does not include the
transmission, retransmission, or receipt of any voice, data,
graphics, or video telecommunications accessed through an
interactive computer service as defined in section 230(f)(2) of
the Communications Act of 1934, which is not originated or
transmitted in the ordinary course of business by a television
broadcast station or multi channel video programming
distributor as defined in section 602(13) of that Act.
The term ``violent video programming'' as defined by the
Commission may include matter that is excessive or gratuitous
violence within the meaning of the 1992 Broadcast Standards for
the Depiction of Violence in Television Programs, December
1992.
Sec. 5. Federal Trade Commission study of marketing strategy
improvements
This section requires the Federal Trade Commission to study
the marketing of violent content by the motion picture, music
recording, and computer and video game industries to children,
including the marketing practices improvements described by
industry representatives at the hearing held by the Senate
Committee on Commerce, Science and Transportation on September
13, 2000. The FTC is required to report the results of the
study, including findings and recommendations, if any, to the
Senate Committee on Commerce, Science and Transportation, and
the House Committee on Commerce, within 18 months after
enactment.
Sec. 6. Separability
Under this section, if any provision of this Act or any
provision of an amendment made by this Act, or the application
thereof to particular persons or circumstances, is found to be
unconstitutional, the remainder of this Act, or that amendment,
or the application thereof to other persons or circumstances
shall not be affected.
Sec. 7. Effective date
The prohibition contained in section 715 of the
Communications Act of 1934 (as added by section 2 of this Act)
and the regulations promulgated thereunder shall take effect
one year after the regulations are adopted by the Commission.
Rollcall Votes in Committee
In accordance with paragraph 7(c) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following description of the record votes during its
consideration of S. 303:
Senator Hollings offered an amendment in the nature of a
substitute. By a rollcall vote of 17 yeas and 1 nay, with the
chairman voting ``present,'' the amendment was adopted:
YEAS--17 NAYS--1
Mr. Stevens Mr. Brownback
Mr. Burns
Mr. Gorton
Mr. Lott\1\
Mrs. Hutchison
Ms. Snowe
Mr. Frist\1\
Mr. Abraham\1\
Mr. Hollings
Mr. Inouye\1\
Mr. Rockefeller
Mr. Kerry
Mr. Breaux\1\
Mr. Bryan
Mr. Dorgan\1\
Mr. Wyden
Mr. Cleland
\1\By proxy
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
COMMUNICATIONS ACT OF 1934
Title VII--Miscellaneous Provisions
* * * * * * *
SEC. 715. UNLAWFUL DISTRIBUTION OF VIOLENT VIDEO PROGRAMMING NOT
SPECIFICALLY BLOCKABLE BY ELECTRONIC MEANS.
(a) Unlawful Distribution.--It shall be unlawful for any
person to distribute to the public any violent video
programming not blockable by electronic means specifically on
the basis of its violent content during hours when children are
reasonably likely to comprise a substantial portion of the
audience.
(b) Rulemaking Proceeding.--The Commission shall conduct a
rulemaking proceeding to implement the provisions of this
section and shall promulgate final regulations pursuant to that
proceeding not later than 9 months after the date of enactment
of the Children's Protection from Violent Programming Act. As
part of that proceeding, the Commission--
(1) may exempt from the prohibition under subsection
(a) programming (including news programs and sporting
events) whose distribution does not conflict with the
objective of protecting children from the negative
influences of violent video programming, as that
objective is reflected in the findings in section
551(a) of the Telecommunications Act of 1996;
(2) shall exempt premium and pay-per-view cable
programming and premium and pay-per-view direct-to-home
satellite programming; and
(3) shall define the term ``hours when children are
reasonably likely to comprise a substantial portion of
the audience'' and the term ``violent video
programming''.
(c) Enforcement.--
(1) Forfeiture penalty.--The Commission shall impose
a forfeiture penalty of not more than $25,000 on any
person who violates this section or any regulation
promulgated under it for each such violation. For
purposes of this paragraph, each day on which such a
violation occurs is a separate violation.
(2) License revocation.--If a person repeatedly
violates this section or any regulation promulgated
under this section, the Commission shall, after notice
and opportunity for hearing, revoke any license issued
to that person under this Act.
(3) License renewals.--The Commission shall consider,
among the elements in its review of an application for
renewal of a license under this Act, whether the
licensee has complied with this section and the
regulations promulgated under this section.
(d) Definitions.--For purposes of this section--
(1) Blockable by electronic means.--The term
``blockable by electronic means'' means blockable by
the feature described in section 303(x).
(2) Distribute.--The term ``distribute'' means to
send, transmit, retransmit, telecast, broadcast, or
cablecast, including by wire, microwave, or satellite,
but it does not include the transmission,
retransmission, or receipt of any voice, data,
graphics, or video telecommunications accessed through
an interactive computer service as defined in section
230(f)(2) of the Communications Act of 1934 (47 U.S.C.
230(f)(2)), which is not originated or transmitted in
the ordinary course of business by a television
broadcast station or multichannel video programming
distributor as defined in section 602(13) of that Act
(47 U.S.C. 522(13)).
(3) Violent video programming.--The term ``violent
video programming'' as defined by the Commission may
include matter that is excessive or gratuitous violence
within the meaning of the 1992 Broadcast Standards for
the Depiction of Violence in Television Programs,
December 1992.
ADDITIONAL VIEWS
Views of Mr. McCain
S. 876 requires the Federal Communications Commission to
determine whether the V-chip and content-based rating systems
protect children from television violence. If the Commission
finds that the V-chip does not effectively shield children from
violent programming--regardless of why--then the bill requires
the Commission to prohibit the delivery of any violent
programming when children comprise a ``substantial portion'' of
the audience (i.e. a ``safe harbor'').
If this safe harbor is activated, then the bill empowers the
five non-elected Commissioners of the FCC to define both what
constitutes ``violent [video] programming'' and when such
content can be seen. The bill notes only that the definition of
violent video programming may include matter that is
``excessive'' or ``gratuitous'' within the meaning of the 1992
Broadcast Standards for the Depiction of Violence in Television
Programs.
This legislation deals with a topic of critical importance to
America and her youth. Our children are exposed to violence
through many forms of entertainment, including movies,
television, music and video games. Increasingly, these
entertainments are trying to attract public attention by ever
more glorified and gratuitous displays of violence. The effect
of this increasing exposure to violence is unclear at best and
recent studies suggest that it may increase some children's
willingness to resort to violence.
In addition, other evidence suggests that the effects of
violent entertainment upon youth may be exacerbated by the
misconduct of the entertainment industries themselves.
According to the Federal Trade Commission's recent report on
the Marketing of Violent Entertainment to Children, companies
in the motion picture, music and video game industries
routinely market to children products containing these
industries' own warnings and ratings of violent content.
Violence in the media is, therefore, a real and serious
problem. Equally serious is the problematic behavior of
entertainment industries that have worked to undercut the
voluntary controls on violence upon which this country and this
Congress have long relied.
Nevertheless, any Congressional action intended to combat
this serious problem will be ineffective and counterproductive
unless it can withstand legal scrutiny. Enacting
unconstitutional legislationwill only delay and impede the
search for effective solutions to any problem, including this one.
Unfortunately, this ``safe-harbor'' legislation--no matter
how well-intended it may be--raises serious and long-standing
Constitutional concerns. In fact, Congress has repeatedly
declined to enact violence-based ``safe harbor'' legislation
because of these Constitutional concerns.
And for good reason: it is impossible to prospectively define
``violent'' programming in a way that will not bar the
transmission of Saving Private Ryan or Schindler's List. For
example, content featuring murder, suicide, gang violence and
knife fighting is violent, but does anyone want the FCC to ban
the broadcast of Romeo and Juliet? Similar difficulties arise
in trying to define when children are not in the audience or
how to address Internet ``web-casting'' or streaming video
links. For these and other reasons, Congress has long concluded
that laws like this will inevitably violate the First
Amendment.
These conclusions are shared by the Administration, and
indeed, the majority itself. For example, the FTC recognized in
its report that ``self-regulation of these industries is
especially important considering the First Amendment
protections that prohibit government regulation of content in
most instances.'' \1\
---------------------------------------------------------------------------
\1\ Report of the Federal Trade Commission: Marketing Violent
Entertainment to Children, (Sept. 2000)
---------------------------------------------------------------------------
Similarly, the majority recognizes that ``it may be difficult
to craft a definition that reflects the context of violence,
that is not overbroad, that is not vague, and is consistent
with the research of harm caused to children.'' The majority
dismisses these difficulties, however, by concluding that
``these are exactly the tasks that the FCC was created to
perform.''
With due respect, I cannot agree. The Federal Communications
Commission was created to perform tasks that facilitate
communication among private citizens. But under this bill, the
FCC would ban communications, regulate the content of speech
and decree what speech can or cannot be communicated. These are
not ``exactly the tasks that the FCC was created to perform.''
These are the tasks of a Federal Bureau of Censorship, an
agency that does not, and probably cannot, exist under our
present Constitution.
The majority cites no legal authorities that would suggest a
different conclusion. The majority relies heavily on a Court of
Appeals decision in Act IV \2\ upholding a safe harbor for
broadcast indecency, as an indication that this bill's safe
harbor for violence would be held constitutional. For two
reasons, its analysis is unpersuasive.
---------------------------------------------------------------------------
\2\ Action for Children's Television, v. FCC, 58 F.3d 654 (D.C.
Cir. 1995) cert. denied 116 S. Ct. 701 (1996).
---------------------------------------------------------------------------
First, the decision in Act IV involved indecency, not
violence. ``Safe harbor'' requirements have not been extended
outside the indecency area, and there is no indication that
courts would be inclined to do so.\3\ To the contrary, the
Supreme Court has stressed the ``narrowness'' of its approach
to indecency.\4\ As the Seventh Circuit said in American
Booksellers Ass'n v. Hudnut, ``violence on television is
protected speech, however insidious. Any other answer leaves
the government in control of all of the institutions of
culture, the great censor of which thoughts are good for
us''.\5\
---------------------------------------------------------------------------
\3\ Video Software Dealer's Association v. Webster, 968 F.2d 684
(8th Cir. 1992).
\4\ Bolger v. Youngs Drug Products Corp, 463 U.S. 63,74 (1983).
\5\ American Booksellers Ass'n Inc. v. Hudnut, 771 F.2d 323, 330)
(7th Cir. 1985) aff'd mem., 475 U.S. 1001 (1986); See also, Winters v.
New York, 333 U.S. at 510-11 invalidating a state law designed to
restrict the publication of criminal news magazines focused on stories
of ``bloodshed, lust or crime.'' ``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 any literature.''
---------------------------------------------------------------------------
Second, even making the unprecedented assumption that the
``safe harbor'' analysis of Act IV could be extended from
indecency to violence, the bill would still be unconstitutional
given the United States Supreme Court's more recent analysis in
United States v. Playboy Entertainment Group, Inc., 120 S. Ct.
1878 (2000). In Playboy Enterprises, the Supreme Court held
unconstitutional the indecency-based ``safe harbor'' provision
in Section 505 of the Telecommunications Act of 1996. The Court
held that a ``safe harbor'' provision serving a compelling
government interest cannot be upheld unless the government
shows that no other less restrictive means of control exists.
Id. at 1886-87.
The majority reasons that this bill could survive scrutiny
under Playboy because the bill only directs the FCC to
implement a safe harbor for television violence if it
determines that the V-chip is ineffective. But this is the very
reasoning that Playboy rejected. In Playboy, the government
tried to justify a safe harbor by arguing that signal bleed
precluded ``RF'' or baseband scrambling from being effective
alternative means of controlling the broadcast of indecent
material. The Court rejected this argument, holding that the
government cannot justify content-based regulation of indecent
speech unless it proves that all other less restrictive methods
of regulation would be ineffective--not just one method.
Moreover, Playboy is also likely to preclude the FCC from
finding that the V-chip is an ineffective method of regulation.
In Playboy, the government claimed that it could restrict
indecent speech during non-safe harbor hours because some
parents might choose not to use potentially effective tools
that are available to them. But the Playboy majority
emphatically rejected this argument: ``Even upon the assumption
that the Government has an interest in substituting itself for
informed and empowered parents, its interest is not
sufficiently compelling to justify this widespread restriction
on speech.'' Id. At 1892.
And these are, of course, only the beginning of the bill's
constitutional problems. For example, the majority itself
concedes that this legislation raises concerns that it is so
impermissibly vague and/or overbroad as to be constitutionally
infirm. After all, this bill would direct a government agency
to first define, and then prohibit, the delivery of ``violent
programming'' for everyone, if it for any reason finds that V-
chip technology is not adequately protecting children.
The majority argues that this bill is not vague or overbroad
simply because a federal agency has been charged with defining
violence and the bill would allow that agency to ``try again''
until its definition passes constitutional muster. (Conference
Report p.22). I see, however, no reason to conclude that the
FCC has either the technical expertise or even the
institutional competence to craft a constitutional definition
of ``violent programming.'' In fact, the majority itself
appears to have no clear idea what such a definitionmight
include. Under such circumstances, I respectfully submit that it would
be inappropriate for this Congress to delegate to non-elected officials
such fundamental questions about the limits of our legislative power.
Moreover, there is no indication that the courts would be
patient with an FCC attempt to adopt a ``try and try again''
approach to content-based regulation of speech. Time and again,
the courts have invalidated attempts to define attempts to
prohibit violent content--even where the prohibition is aimed
at the laudable goal of protecting children. For example, in
Interstate Circuit, Inc. v. City of Dallas, the Supreme Court
explicitly recognized that ``the permissible extent of
vagueness is not directly proportionate to, or a function of
the extent of the power to regulate or control expression with
respect to children.'' \6\ Moreover, the majority's instruction
to the FCC that its definition of violence may include
``excessive'' or ``gratuitous'' violence within the meaning of
the 1992 Broadcast Standards for the Depiction of Violent
Television Programs, provides little shield to a constitutional
challenge. Courts have traditionally held laws designed to
incorporate industry-based ratings systems to be
unconstitutional--even where the laws did not attempt to ban
the rated program, but rather, simply sought to provide special
licenses or restrict children's access.\7\ Similarly, laws
attempting to restrict material for ``excessive violence'' have
also been consistently found to be unconstitutionally vague.\8\
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\6\ Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 678
(1968); see also Rushia v. Town of Ashburnham, 582 F. Supp 900,905 (D.
Mass 1983) ``The fact that a regulation is adopted for the purpose of
protecting children does not cure vagueness''.
\7\ Endahl v. City of Kenosha, 317 F. Supp 1133,1135 (E.D. Wisc.
1970); MPAA v. Specter, 315 F. Supp 824 (E.D.Pa 1970) and Gasgoe, LTD
v. Newton Township, 699 F. Supp 1092, 1096 (E.D.Pa 1988).
\8\ See Harry T. Edwards and Mitchell N. Berman, Regulating
Violence on Television, 89 Northwestern U.L. Rev: 1487 (1995).
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Indeed, even those who the majority cites to in support of
their assertion that ``the constitutionality of a safe harbor
approach for violence could be easier to sustain than for
indecency'' recognize the constitutional problems this type of
legislation is likely to face. For example, the minority cites
to a dissenting opinion of Judge Edwards of the D.C. Circuit,
``acknowledging that there is much stronger evidence that
viewing violence on television causes harm to children than any
proposed harm caused by indecency'' (Committee report p. 17) in
support of its position. Yet Judge Edwards has written:
``When it comes to televised violence, we cannot imagine how
regulators can distinguish between harmless and harmful violent
speech, and we can find no proposal that overcomes the lack of
supporting data * * *'' \9\ ``We cannot imagine how a regulator
might fix rules designed to ferret out gratuitous violence
without running the risk of wholesale censorship of television
programming.'' \10\
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\9\ Ibid., p. 1565.
\10\ Ibid., p. 1502.
John McCain.