by Laura B. Schneider
Copyright (c) 1994
University of Miami Law Review, University of Miami
49 U. Miami L. Rev. 477
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-- Fahrenheit 451, directed by Francois Truffaut
The boy looked, wild-eyed, around at him: spat in his face; not one word; but drew his sword. His father dodged and ran back; so he missed, then turned on himself, curled over the blade and drove it into his side. He was still conscious. His arms flowed about the girl; he held her and tried to breathe and breathed out a rush of blood; and the red drops were on her white cheek. Now the dead lie in the arms of the dead. They have been wedded in the house of Death. Kreon has shown there is no greater evil than men's failure to consult and to consider. n1
Violence in entertainment is not a new phenomenon. Throughout the ages, violence has played a significant role in literary works. Writers as far back as the ancient Greek playwrights incorporated violence in their stories. n2 Since then, violence has been prevalent in esteemed literature, throughout history from the works of Shakespeare n3 to those of Tennessee Williams. n4 "Violence has always been a part of our life, our history and our culture; and, television programming in a free society [*479] should not be expected to pretend otherwise." n5 Regardless of this historical precedent, America is now in an uproar about violence on television. Similar to Kreon in Antigone, who neglected to foresee the tragic results of his actions, television programmers are failing to consider the effects of their programs on the lives of many viewers. Attorney General Janet Reno summarized the status of modern television when she remarked:
Violence has become the salt and pepper of our television diet: fictional shows and movies feature dozens of killings of bad guys or innocents; made-for-TV movies glorify the most sordid examples of human behavior; the local news opens with pieces on violent crimes before proceeding to any other type of story; and so-called "real life" police programs portray the world of law enforcement as nothing but a violent game between America's police and its citizens. n6
This Comment explores television violence and its effect on children. It examines the industry's actions taken thus far to alleviate the violence, impending legislation and its potential conflict with the First Amendment, and alternatives to government action in this delicate area of freedom of speech.
Most people would agree that "the entertainment media play a powerful role in the formation of values." n7 Television violence is not discriminating; it affects children of all ages, genders, socioeconomic levels, and levels of intelligence. n8 Since 1955, researchers and scholars have published about 1000 studies, reports, and commentaries regarding the impact of television violence and "the accumulated research clearly demonstrates a correlation between viewing violence and aggressive behavior." n9 Every year children watch over 1000 rapes, murders, armed robberies, and assaults on television, n10 and the portrayals are becoming [*480] increasingly graphic. n11 Violence may be a part of our society, and TV a reflection of it, but when violence is glorified, or depicted as a means to solve problems, it can be harmful to children. n12 "From [their] very first cartoon, all the way through Lethal Weapon, [children are] taught that violence is funny, entertaining and successful." n13 "All television is educational... The question is, what's being taught?" n14
Many people in the television industry claim that children do not watch violent shows designed for adults. n15 For example, NBC President Warren Littlefield asserts that "NBC's highest rated police drama, "Law & Order', ranks 141st among children." n16 Despite this assertion, television is seen as one of the many factors that contribute to the harmful effects on children and increased violence in our society. One commentator describes it as a "symbolic environment. And what we're dealing with is a kind of pollution, the byproducts of an industrial civilization that we have to understand and take care of ...." n17
In her testimony before the U.S. Senate Committee hearing concerning Violent Programming on Television, Attorney General Janet Reno proclaimed that she was "tired of the shoulder-shrugging and the finger-pointing. No one ever accused the networks or television violence itself of somehow being solely responsible for violence in America." n18 In order to solve this problem, we must address each ele- [*481] ment individually. Recognizing that television is one factor leading to violence, the question becomes how to "regulate the speech we don't like - ... especially the T.V. violence aimed at children - without irretrievably harming the speech we do like, as evidenced in the many television shows that entertain, educate and expand our view of the world." n19 Censorship is not a viable alternative if our creative community is to flourish. n20
Is government regulation the answer? The First Amendment of the U. S. Constitution may be a brick wall against such an intrusion into the right to freedom of speech and expression. n21 But allowing the industry to regulate itself may not generate the desired results. "The coming 500-channel universe, high-definition television, ... and new interactive technology mean "the industry is going to change dramatically and substantially ... The power, the influence, the importance of television is only going to increase in the years ahead.' " n22
The sections that follow deal with the cry for help in reducing violence on television. Part II examines the effects of television on children, and compares television violence in America with that seen around the world. Part III analyzes the unsuccessful attempts to hold programmers liable for the effects of mass media violence on children, and the First Amendment reasoning behind this failure. Part IV discusses what the industry has accomplished on its own without government intrusion. Part V examines the proposed congressional legislation to regulate violence on television -- its pros and cons and its constitutionality under existing case law. Finally, Part VI explores the alternatives to legislation. It concludes with the realization that although the protection of children is a compelling reason to enact legislation to curb violence on television, such legislation would devastate the freedoms protected by the First Amendment. With pressure from the American people -- not the government -- the entertainment industry must regulate itself, while Americans develop alternate ways of dealing with this problem that do not interfere with freedom of speech and expression.
II. Television Violence - Children Watch and Learn
Television has become an integral part of American life. n23 On the [*482] average, children watch 2-4 hours of television a day. n24 By the time a child graduates elementary school he has seen approximately 8000 murders and more than 100,000 other violent acts. n25 By the time he is eighteen, he will have vicariously witnessed over 200,000 violent acts and 40,000 murders on television. n26
In 1992, TV Guide analyzed a typical day of television and found that for every hour of programming, there were 10 acts of violence; on Saturday morning programming, which is targeted at children, the figure jumped to 20-25 violent acts per hour. n27 Television "exposes children to behavior that society and the law condemn and prohibit." n28 For children, television can be a form of recreation or even a type of babysitter. "In dangerous neighborhoods, television may be one of the safest forms of recreation left for children -- unless it is more violent than the streets they are afraid to walk." n29
A. The Effects
Television can have profound influences on childhood development. Violent television, however, affects children in various ways. Researchers have delineated at least four major effects that television violence can have on children: the aggressor effect, the victim effect, the bystander effect, and the self-socialization effect (including imitation).
1. aggressor effect
After years of research, accumulated evidence tends to prove "a direct causal link between exposure to televised violence and subsequent aggressive behavior of the viewer." n30 Researchers label this the aggres- [*483] sor effect. n31 After viewing repeated violence on television, children begin to believe that "aggression is an appropriate and expected behavior, the norm, the way to solve interpersonal problems, relieve frustrations and obtain material things." n32 One study found that the frequency of an eight-year-old's television viewing was related to the seriousness of the crimes for which that person was convicted by the time he was thirty. n33 The continued viewing of television violence became a rehearsal of aggressive sequences. n34 "Thus, one who watches more aggressive sequences on television should have more aggressive strategies more strongly encoded and should respond more aggressively when presented with similar or relevant cues." n35
Some researchers claim that "reality-based" shows n36 and music videos broadcast on such networks as MTV n37 contain the most violence. n38 These programs portray disobedient and aggressive behaviors, n39 [*484] that create a "pattern of domination, sexism, and inequality that colors viewers' perceptions of the real world." n40 A content analysis of music videos revealed that 56% contain violence, and that women comprise a substantial portion of the victims of that violence. n41 Moreover, movies with sexually explicit scenes "may lead young men to reaffirm the all-too-common male attitude that when a woman says no she really means yes. Many experts believe that such films may be a contributing factor in date rape, one of the most common adolescent sexual crimes." n42 Because they see women as the victims of violence on television so often, youths begin to think that sexual violence is permissible. n43
Other researchers assert that cartoons are the most violent programs. n44 Many low-quality cartoons (most of which promote themes of violence or war) are produced and designed primarily to market toys. n45 Even movies rated "R" (Restricted) for their violent content become part of children's culture when toy manufacturers market toys for children based on those movies' characters. n46
In a 1971 study commissioned by the Surgeon General, three-and-one-half- to five-and-one-half-year-old children viewed cartoons con- [*485] taining violence for a period of nine weeks. n47 These children "were subsequently more likely to hit other children, call people names, fail to obey classroom rules, and become impatient when they encountered minor frustrations," than the two other groups of children who watched non-violent cartoons. n48 These results lead to the conclusion that under some circumstances, exposure to television violence leads to subsequent aggressive behavior. n49 "The violent scenes that a child observes on television can serve to teach a child to be aggressive through several learning processes as the child not only observes aggressive patterns but also witnesses their acceptance and reinforcement." n50
2. victim effect
In addition to increasing viewers' violent behavior, television violence also changes viewers' attitudes towards the world. n51 In what is known as the victim effect, a child fears becoming a victim of violence and as a result increases self-protective behavior and mistrust of others. n52 In training children to become victims, television cultivates a sense of vulnerability, dependence, and need for protection. n53 Television violence can stimulate children to develop "a sense of pervasive insecurity [known as] "the mean-world syndrome.'" n54 This occurs most [*486] often as a result of watching realistic adult-oriented crime dramas and other "reality-based" shows. n55 Researchers have found that the societal groups most vulnerable to the "victim effect" are children, old people, women, and some minorities, mainly due to the fact that most "Reality-based" shows portray these groups as the victims of most crimes and assaults. n56
3. bystander effect
A third effect of television violence, known as the bystander effect or the desensitization effect, describes the viewer's increased callousness toward violence directed at others. n57 This indifference decreases the likelihood that the viewer will take action on behalf of a victim when he witnesses actual violence. n58 After repeated exposure to graphic media violence, viewers may become "comfortable" with the violent content, thereby reducing their level of anxiety toward it. n59 This causes viewers to perceive the content as less violent than they would have otherwise noted. n60 "These altered perceptual and affective reactions may then be carried over into judgments made about victims of violence in other more realistic settings." n61 [*487]
4. self-socialization effect and imitation
Another significant effect of television violence is an increased appetite for becoming involved with violence or exposing oneself to the risk of violence. This is known as the self-socialization effect. n62 Imitation violence n63 is the most frequent actualization of this effect. Young children perceive television as a "source of entirely factual information regarding how the world works." n64 As they grow older they begin to realize that television is not a true reflection of reality, but their early impressions of violence remain with them. n65
American children often identify themselves with television characters and superheroes, especially when they lack a same-sex role model in their lives. n66 Superheroes in animated cartoons and in action shows give children a sense of immortality because the heroes never die -- "they take bullets, knifings, ... torpedoes, and still stand up, brush themselves off and charge into the next scene." n67 One adolescent gunshot victim was surprised that his wound actually hurt. Researchers suggest that this "surprise" should be expected, because on television, when the hero gets shot in the arm, "he uses that arm to hold onto a truck going 85 miles an hour around a corner ..., overcomes the driver, and shoots a couple of hundred people while he's at it." n68
When a child imitates the violence he sees on television, the consequences can be disastrous. In one case, a 5-year-old boy started a fire in his house, which resulted in the death of his 2-year-old sister. This happened after he repeatedly watched Beavis and Butt-head, a cartoon on MTV which features two characters who set things on fire for fun. n69 Beavis and Butt-head resemble everyday teenagers (more than most cartoon characters do) and are therefore, "potentially more influential." n70 It [*488] is difficult for younger children to distinguish between the characters' actions and reality, thus making it more likely that children will imitate them. n71 These characters enjoy such activities as "sniffing paint thinner, tossing bugs and a mouse into a french-fry cooker at a fast food restaurant, calling a medical hotline to report a crack in Butt-head's rear end," n72 tossing firecrackers into toilet bowls, and spin-drying smelly dogs in the Maytag. n73 Most parents agree that teenage boys do not need this kind of encouragement -- the only thing Beavis and Butt-head teaches them is how to act "loutish and oafish." n74
Another example of a child's imitation of media characters involves the Walt Disney Studios movie The Program. n75 In order to prove how tough they were, two teenage boys imitated a scene from the movie in which the football heroes lie down in the middle of a dark and busy roadway at night. n76 In the movie, the characters survived despite the cars speeding by, but in real life, a pickup truck hit the boys, instantaneously killing one and critically injuring the other. n77 Even more frightening is another real life story of a 13-year-old boy who murdered his friend's father by kicking, stabbing, beating, and choking him to death. When asked why he poured salt on the victim's wounds, the boy replied, "I just seen it on TV." n78 Although movies and television programs do not force people to reproduce foolish behavior, the fact remains that young people are inclined to mimic actions that appear "bold, heroic, [and] cool." n79 [*489]
B. Television Violence Around the World
Despite the tremendous amount of time, money, and effort spent on research and studies which prove the troublesome effects of television violence, the United States, a country which is internationally renowned for its concern for the welfare of its children, has not taken serious steps toward curbing televised violence or its effects. Most other countries carefully monitor the content of children's programming "to limit their exposure to themes felt to have an adverse effect on development." n80 In Japan, n81 the frequency of televised violence is comparable to that in the United States; however, the Japanese portray the violence more realistically and tend to emphasize its consequences. n82 The result is that Japanese children develop an aversion to violence, thereby reducing "the likelihood that violence will be the first strategy they adopt to resolve conflict." n83
The controversy concerning television violence in the United States has received international attention, and as a result, many other countries are beginning to address the issue. Germany, for example, is confronting the question of the amount of violence shown on its television programs. n84 In Great Britain, the kidnapping and murder of a 3-year-old by other children sparked a fierce debate over media violence. n85 A Colombian court recently ruled that "television violence contributes to real-life violence" and "banned graphic murders, armed assaults and car crashes from television programming before 10 p.m." n86 [*490]
It is important to note that television and film producers market a majority of American television series and motion pictures internationally. n87 Foreign countries provide more than half of the total revenue from these programs and movies. n88 Because humor is culture-bound and needs translation, it does not travel as well as violence which needs no explanation. n89 "It has some kind of inner relevance to human interests, and therefore from the point of view of global marketing, is an excellent commodity and highly profitable." n90
Apparently, the "specific needs of the child-viewer are being left behind in the wake of technological growth and marketplace demands." n91 During the formative years between birth and age three, a child learns "that every action has a consequence, be it reward or punishment." n92 Television teaches children that violence is a way to solve problems; n93 the effects that this lesson may have on children's mental and physical health are intolerable. In a letter to Attorney General Janet Reno, an elementary school girl pleaded very simply, "Dear Miss Reno, I don't like violence on TV. It makes me feel rotten. How can you help me?" n94
III. The First Amendment Bars Civil Liability for the Entertainment Industry
Is it reasonable to hold fictional characters responsible for the mishaps which occur when children imitate the behavior and actions they see in a movie or television show? Some victims have attempted to hold the programmers liable by what some call the "blame-the-messenger syndrome" but so far the courts have not allowed it. n95 Even though the media recognizes its power to influence people, it cannot be held legally liable for "'the independent, foolish acts of others.' " n96 Nevertheless, plaintiffs continue to sue broadcasters of violence based on negligence [*491] theories. n97 Although social scientists' research tends to prove that watching televised violence leads to subsequent violent or imitative acts, the law must take a different view. n98 "Courts have and should continue to find the results of research to be incompatible with legal concepts of foreseeability and incitement, and should continue to protect the first amendment rights of the broadcasters to transmit such information and the rights of the public to receive that information." n99
In Zamora v. CBS, n100 a fifteen-year-old boy sued CBS, NBC, and ABC for damages, claiming that he became "involuntarily addicted to" and "completely subliminally intoxicated by the extensive viewing of television violence." n101 Zamora maintained that this desensitization to violent behavior led him to murder his 83-year-old neighbor. n102 The court refused to impose liability on the broadcasters because of the negative impact that such an imposition would have on the exercise of their First Amendment rights. n103 The court recognized that it lacked "the legal and institutional capacity to identify isolated depictions of violence, let alone the ability to set the standard for media dissemination of items containing "violence in one form or another." n104
The court also acknowledged that the only way the government will assert power over the First Amendment rights of journalists and broadcasters is if the interests of the public outweigh those rights. n105 The public interest includes the right to receive a variety of programs free of government censorship. n106 The imposition of liability on the broadcasters would place them at risk for televising "Hamlet, Julius Caesar, Grimm's Fairy Tales, ... The Holocaust, and indeed would render John Wayne a risk not acceptable to any but the boldest broadcasters... The First Amendment casts a "heavy burden' on those who seek to [*492] censor." n107 Similarly, in DeFilippo v. NBC, n108 the Supreme Court of Rhode Island held that the First Amendment barred suit against the broadcaster when the plaintiff's thirteen-year-old son hanged himself after watching a stuntman "hang" Johnny Carson (who survived) on The Tonight Show. n109 Allowing plaintiffs to recover in such actions would have a chilling effect on the First Amendment, n110 and would eventually lead broadcasters to self-censor their programs. n111 This would "deprive both broadcasters and viewers of freedom and choice, for "above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.'" n112
The Florida Supreme Court likewise held, in Sakon v. Pepsico, Inc., n113 that a television advertiser, whose commercial portrayed people engaging in dangerous sports, could not be liable for the unforeseeable actions of a fourteen-year-old boy who tried to imitate the stunt. n114 "The logical corollary to recovery in this case would be that advertisers and broadcasters would be subject to liability because children sought to duplicate acts of violence which they saw on television. There would be a total absence of any standard to measure liability." n115 As in Zamora and DeFilippo, the court noted that recognizing liability against broadcasters would compel courts to examine the content of media broadcasts, implicating First Amendment concerns. n116 [*493]
A California court, in Olivia N. v. NBC, n117 reacted similarly to a suit charging NBC with negligence for its broadcast of the film Born Innocent. n118 A group of girls attacked and forcibly "artificially raped" the nine-year-old plaintiff with a bottle, after viewing and discussing a scene in the film where four girls artificially rape another girl in a shower room using the handle of a plunger. n119 In rejecting the plantiff's negligence theory asserted against the television broadcaster, the court addressed the effects that imposing liability would have on the networks. The fear of damage awards to plaintiffs would lead to self-censorship that "would dampen the vigor and limit the variety of public debate." n120 It would significantly limit the selection of controversial subjects and materials to be televised. n121 "The effect of the imposition of liability could reduce the U.S. adult population to viewing only what is fit for children." n122
The only way courts could hold broadcasters liable for tragedies such as these is if the programs urged or incited the viewer to imitate the activity. Incitement is an unprotected class of speech n123 that a state may punish or prevent. Other types of unprotected speech include obscenity, n124 fighting words, n125 profanity, and libel and slander. n126 While the programs discussed above, including Beavis and Butthead n127 and the scene from the Program n128 exhibit violent acts, none of them, in any way "exhort, urge, entreat, solicit, or overtly advocate or encourage unlawful or violent activity on the part of viewers." n129 Indeed, the commercial in Sakon never suggested that a viewer attempt lake jumping, n130 [*494] and in DeFilippo, the stuntman explicitly stressed the dangerousness of the stunt. n131 The DeFilippo court was especially troubled by the fact that incitement is difficult to measure precisely. n132 The stuntman's warnings may have deterred others, but the young DeFilippo boy nevertheless attempted the stunt himself. n133 Thus, absent an actual call to action, courts will likely continue to reject the incitement theory of liability for broadcasters and publishers under First Amendment principles. n134
Most courts agree that in a free and democratic society, it is unacceptable to impose a duty upon performing artists to limit and restrict their creativity in order to avoid the dissemination of ideas in artistic speech which may adversely affect emotionally troubled individuals. Such a burden would quickly have the effect of reducing and limiting artistic expression to only the broadest standard of taste and acceptance and the lowest level of offense, provocation and controversy. n135
Unfortunately, some people, notably young children, react violently to television programs, movies, music, or other forms of expression. n136 It is typically impossible "to predict what particular expression will cause such a reaction, and under what circumstances." n137 It is therefore unlikely that courts will ever hold broadcasters liable for the valid exercise of their First Amendment rights. The Constitution protects ideas not because they are harmless; "they may in fact be extremely dangerous, but we put up with them." n138 [*495]
Nevertheless, many people are refusing to tolerate the results of dangerous speech, particularly the violent effects it is having on the children of America. It is unavailing for citizens to complain about excessive television violence to the FCC because it has no authority to act on these complaints; stated simply, "there is no prohibition against violence." n139 The FCC, however, may entertain a complaint that a station broadcasts indecent material, because there is a statute prohibiting indecency. n140 Unlike indecency and obscenity, the First Amendment protects violent speech, "as opposed to speech designed to incite violence." n141 Because courts continue to refuse to impose liability on broadcasters, and the FCC is powerless to do so, Americans are turning to their legislators to take action. The government, in turn, is looking to the entertainment industry, urging broadcasters either to regulate themselves or face government legislation. n142 Clearly, some method of controlling television violence must be found. n143
IV. Self-Regulation -- Is It Working?
A free society should be able to solve its problems without government censorship, thus, industry self-regulation is preferred over any government involvement. n144 The Television Program Improvement Act of 1990, n145 sponsored by Senator Paul Simon, granted the industry a three-year exemption from the antitrust laws to enable networks and other representatives from the industry to get together and establish standards on the broadcast of violence. n146 That exemption expired in December 1993 after the industry accomplished many important goals.
A. Standards for the Depiction of Violence in Television Programming
The industry's first undertaking led to the development of joint standards concerning the depiction of television violence, released in December, 1992. n147 These standards stressed each "network's long- [*496] standing pre-existing policies on violence." n148 Each network already has its own self-enforcing standards department which reviews, evaluates, and forms judgments on the acceptability of programming content. n149 The standards provide a broad framework within which each network exercises its own judgment. n150 The industry's standards include: the intolerance for gratuitous or glamorized violence and excessive graphic depictions of violence; a "reasonableness" standard of intensity and frequency of the use of force; the avoidance of instructive or easily imitable scenes (i.e., those describing easily imitated techniques for the commission of a crime or the use of weapons); the portrayal of the consequences of violence to its victims; the avoidance of unduly frightening realistic portrayals of violence in programs designed for children; the humane treatment of real animals; the use of extreme caution in themes or plots which mix sex and violence; and the use of prudence in the scheduling of programs, taking into consideration content and the likely composition of the intended audience. n151 These guidelines "perform the function that an air bag does in a car: Reduce the potential impact to the psyches of American youths which scenes of reckless violence might injure." n152
Unfortunately, only the broadcast networks have endorsed the joint standards. In order for them to be effective, cable television, independent television stations, the Hollywood studios, and the independent production community must all participate as well. n153 In fact, most cable television broadcasters do not have their own standards and practices departments. Thus, much of the violent programming that appears on these stations is broadcast unedited. n154 One researcher found that cable-oriented dramatic programs are more likely to be violent than prime- [*497] time broadcast network programs. n155 Viewers are therefore unprotected from violent television when they stray from the basic network stations. Unless all television stations comply with the standards, they will be only partially effective.
B. Cable Industry Policy Statement
After the cable industry recognized its importance in supporting a reduction of television violence, it published a policy statement regarding television violence on January 27, 1993. n156 This statement maintains that the "depiction of violence is a legitimate, dramatic and journalistic representation of an unavoidable part of human existence," n157 but professes that the use of gratuitous violence is not only harmful to the industry, but to society as well. n158 It therefore discourages gratuitous violence and encourages all members of the industry to "strive to reduce the frequency of such exploitive uses of violence while preserving [the industry's] right to show programs that convey the real meaning and consequences of violent behavior." The practical impact of the cable industry's policy statement was minimal; however, it communicated the cable industry's intention to attempt an improvement. n159
C. The Advance Parental Advisory Plan
A significant achievement during the exemption period was the formation of the Advance Parental Advisory Plan, on June 30, 1993. n160 The four major networks, ABC, CBS, NBC, and FOX adopted this proposal to increase parents' awareness and to disseminate information regarding the violent content of television programs. n161 These networks [*498] agreed to place cautionary advisories on programs when "the graphic nature of the violent content, or the tone, message or mood of the program make it appropriate." n162 The plan allows each network to use its own discretion in evaluating which programs receive advisories by considering factors such as the "context of the violent depiction, the composition of the intended audience and the time period of broadcast." n163 By providing parents with adequate and timely information about the violent material in the programs, the advisories allow parents to better supervise their children's television viewing, and to make responsible decisions about programs which may be inappropriate for their children. n164 Thus, the plan recognized the "dual responsibility between program distributors and parents." n165
When a network uses an advisory on a specific program, all promotional material relating to that program, including press releases, on-air promotions, and print advertisements will include the advisory; it may even reappear during the broadcast of the program. n166 To promote consistent television programming, the networks called upon their competitors (broadcast syndicators and cable operators) to adopt the plan, and promised to help anyone with its implementation. n167 The advisory plan became effective starting with the 1993-94 television season. n168 Networks will abide by the plan for two years, at the end of which they will evaluate its effectiveness, consider any proposed changes, and determine whether to continue its use. n169 By the end of July, 1993, fifteen cable networks that produce original programming endorsed the Advance Parental Advisory Plan. n170 [*499]
Parental advisories will provide concerned parents with a tool they can use to shield children from the violent content of certain programs. n171 One broadcaster claims that the advisory plan is superior to other types of rating systems, including the "V" rating system, n172 because it provides parents with more information, and it avoids any "unintended and potentially adverse consequences" associated with a "V" rating system. n173
The Advance Parental Advisory Plan by itself, however, is an "incomplete and ineffective solution to the problem" of television violence. n174 First, each network decides what is or is not violent and each network monitors itself. n175 Second, parents cannot always physically supervise their children, who, when unsupervised, "will frequently do the exact opposite of what their parents would want them to do." n176 Thus, an advisory might be counter-productive and may actually cause the child to sit down and watch the program. n177 Furthermore, while the advisories identify violent programming, they do nothing to reduce the amount of violence on television -- which is the heart of the problem. n178 Finally, the advisory plan agreement does not cover children's programming, nor does it affect cable television or independent stations unless they expressly endorse the plan. n179 Therefore, while the industry celebrates the plan as a giant step in the right direction, many commentators [*500] feel it is merely a gesture with no genuine effect. n180 Yet at least one commentator suggests that the industry's voluntary actions in instituting such a plan are still preferable to government-mandated labeling, scheduling, and censoring. n181
D. Independent Monitoring System
In a monumental and unprecedented decision, ABC, NBC, CBS, FOX, and some cable networks such as HBO and Showtime agreed to sponsor an independent monitor to evaluate and assess the levels of violence in television programming. n182 This monitoring system will not quantify actions as violent without regard to context. n183 On the contrary, it will use a qualitative system, assessing violence within the context of the program. n184 Furthermore, every year the networks will publicly report the assessments, hoping that the threat of negative reactions from advertisers and viewers will keep each network from broadcasting excessive violence. n185
This is an incredible change of attitude on the part of the networks who have strenuously maintained that their own standards and practices departments do the job satisfactorily. n186 The cable industry's initiative goes even further than the broadcast networks' initiative, because the cable industry agreed to rate its programs for violence and to endorse lock-out technology. n187 The networks refuse to accept either a rating system or a blocking system because they fear that advertisers will not [*501] support programs with high violence ratings. n188 Nevertheless, because the networks have accepted this monitoring system, Senator Paul Simon (who sponsored the industry's three-year antitrust exemption, and has been pushing for legislation in this area) no longer sees the need for legislation. n189 The monitoring system will accomplish the goal of reducing televised violence by providing viewers with information they need to avoid programs which they themselves deem overly violent. n190
E. How "Voluntary" Are These Measures?
Because the networks have taken these steps voluntarily, most people would agree that their First Amendment rights have not been infringed. On the surface, these actions appear to have been initiated, by the industry; in fact, however, Congress has pressured broadcasters into creating these policies. While the monitoring system allows independent assessors to evaluate program content, eventually, after the reports are publicized, networks will begin to self-censor violent scenes, or any other scenes the monitor may deem unacceptable or controversial.
In an analogous situation in 1976, a federal court in California put an end to the "Family Viewing Hour" n191 which the industry had "voluntarily" implemented because of the public outcry against excessive violence on television. n192 The court held that the FCC exerted improper pressure on the industry which deprived the individual licensees of their right and duty to make independent decisions. n193 The court realized that the steps taken by the networks were not completely voluntary because of the pressure the FCC had placed on them. Therefore, the Family Viewing Hour was an improper government intrusion into the broadcasters' First Amendment rights. n194 [*502]
Currently, Congress is threatening to legislate unless the industry voluntarily implements practices which accomplish the same goals that government mandates would accomplish. Attorney General Janet Reno warned television industry executives that they "must voluntarily reduce violence or "government action will be imperative.' " n195 Under the threat of legislation, the industry is instituting the monitoring system, which appeases legislators and parents alike. A court today might find that the same unconstitutional government pressure exerted by the FCC with the "Family Viewing Hour" is being applied to the television industry now. Therefore, the government's insistence on voluntary industry action, may be counter-productive because a court can find that the industry did not take the actions voluntarily.
The advisory system meets with the demand for information, but addresses only part of the solution to the problem of televised violence. n196 Many parents want more than promises and are demanding congressional action. The monitoring system may be that answer if it is implemented "voluntarily" and is consistently applied. Another answer may be Representative Edward Markey's proposal to give parents the power to protect their children when they are not home through a computer chip that blocks out designated violent programs installed in their television sets. n197 But government legislation in this area is a delicate matter and requires careful and calculated deliberation. What the public wants and what the First Amendment allows may be two separate things.
V. Is Legislation an Acceptable Solution?
A. The Proposals and Their Pros and Cons
Members of both houses of the U. S. Congress have introduced numerous bills attempting to reduce television violence in various ways. All of these legislative measures require FCC involvement. Many aspects of the legislative proposals are sound in theory, but their likely effects, if made into law, are unclear. Some fear the possible devastating effects on the freedoms protected by the First Amendment. Others claim that these laws would benefit children by making the industry, parents, [*503] and society more responsive to their needs for positive change. n198
1. legislation involving advisories and ratings
Many Americans, including Attorney General Janet Reno, believe that the parental advisories which the industry has voluntarily established are not enough. n199 Parents need more information about the violent content of programming before it is broadcast. n200 Many suggest imposing motion picture style ratings based on the amount of violence in a program. n201 Such a violence rating would notify viewers of program contents in advance and allow them to decide whether the program is suitable for their children. n202
a. Senate Bill 943 - Children's Television Violence Protection Act of 1993
Senator David Durenberger (R-Minn.) introduced Senate Bill 943 on May 12, 1993. n203 The bill directs the FCC to establish rules requiring broadcast licensees and cable operators, including cable programmers, to give audio and visual warnings for television programs depicting violence or unsafe gun practices and airing between the hours of 6 a.m. and 11 p.m. n204 The advisory should caution viewers that the violence or unsafe gun practice "may adversely affect the mental or physical health, or both, of a child, and may, if the events portrayed in such programming occur in real life, warrant the imposition of criminal penalties." n205 Violations will result in a maximum fine of $5000, or for intentional violations, a $10,000 minimum and a $25,000 maximum fine. n206 Under the bill, when a broadcaster applies for a renewal of its license, the FCC must consider whether the licensee has complied with the prescribed standards under the act. n207 The FCC may, however, exempt news broadcasts, sporting events, educational programming, and documentaries [*504] from the requirements. n208
b. Senate Bill 973 - Television Violence Report Card Act of 1993
Senator Byron Dorgan (D-N.D.) introduced Senate Bill 973 on May 18, 1993. n209 The bill would require the FCC to establish a program to: (1) evaluate and rate television programs with respect to the extent of violence contained in those programs, and rate the sponsors in terms of the extent to which they sponsor violent programs; and (2) publish the ratings in a "Television Violence Report Card" each quarter in the Federal Register. n210 The FCC would evaluate programs carried on the national broadcast networks and the cable television systems. n211 The evaluations would take place one week every quarter (four times a year) during that week's prime-time and Saturday morning time slots, including at least one "sweeps week." n212 The bill's cosponsor, Representative Durbin, believes that a quarterly report informing viewers "where the violence is and who sponsors it would be a constructive step in exposing those who are feeding us this dangerous diet of increasingly violent television." n213
A network-wide rating system must "be quantitative and preferably numerical, leaving aesthetic and social judgments to the viewers." n214 Such a rating and advisory system will have a substantial impact if it is consistently applied. n215 Supporters of a ratings system claim that ratings do not censor, nor do they infringe on broadcasters' rights of free expression. On the contrary, they claim that ratings actually extend this freedom by permitting adults to watch whichever programs they wish, "while effectively eliminating children from the audience." n216 The purpose of ratings and advisories is to notify parents that the programs will contain violence; after notification, it is the parent's responsibility to take action. Whether the parent allows his child to watch a program is a [*505] private and individual decision. Advisories and ratings only assist parents in making these decisions.
On the other hand, there are many arguments against government-mandated advisories and ratings. First, the industry has already instituted its own system of advisories under the Advance Parental Advisory Plan. n217 Not only are the four major networks n218 adhering to these guidelines, but many cable stations and independent stations have also voluntarily adopted this system. n219 Most broadcast stations are increasingly sensitive towards the issue of television violence. For example, many have rearranged program time slots, edited violent scenes, and provided advisories before and during certain programs. n220
These actions are significant in that the industry has "voluntarily" chosen to execute them. n221 According to one industry executive, a law forcing television broadcasters to implement advisories and ratings may have the effect of undermining the industry's efforts. n222 If one television station, cable operator, or programmer decided to file suit seeking to enjoin the mandatory use of advisories and ratings, it would "tie up the new regulations in court for years." n223 The system of self-administration is an appropriate method for the networks to use and the marketplace will ensure that each network does in fact adhere to its own guidelines. n224
Moreover, because so many different types of broadcast stations exist, a single standardized system is impractical and unworkable. n225 The Motion Picture Association of America ("MPAA") currently employs a voluntary rating system similar to the system that legislators propose to enforce on the television industry. Contrasted with the MPAA, which in 1992 rated 616 films (about 1,200 hours of film that year), a uniform television rating system would require rating 75,000 hours of programming every day (on broadcast and cable combined). n226 [*506] In addition, such a rating system would need to meet the specific demands of television, which include time constraints, constant last minute changes, and substantial volume of product. n227 And "what about the thousands of episodes of existing program series such as ... the original "Star Trek'? A centralized board could be tied up for years simply rating programming that is already on the air." n228 The entire process would be ineffective and burdensome.
Another problem with a uniform system of advisories and ratings involves determining the definition of "violence." n229 "What is "acceptable" to some is "unsuitable" to others. What is gauged as "reasonable" by some, is judged to be "unreasonable" by others." n230 For example, in her congressional hearing testimony, Professor Signorielli recounted the results of a television violence study which found that variety shows were the most violent genre in the sample, including specials such as Television's Greatest Moments, TV's Funniest Commercials, and the 25th Anniversary of Rowan and Martin's Laugh In. n231 It seems ridiculous to give the slapstick antics of Rowan and Martin a violent rating. n232 Such a system does not account for context, and thus fails to distinguish, for example, between the violent acts reported in documentaries about war and the dramatic portrayal of violent acts associated with urban crime. n233
Advisories and ratings may have the opposite of their intended effect by serving as a "road map" and leading children to the violent shows. n234 Some argue that "a violence rating scheme would actually attract younger viewers to such programming under a forbidden fruit theory." n235 Knowing they should not be watching these programs, youngsters, especially older children and younger teens, may be lured by a show with a high violence rating. n236 [*507]
Although parental monitoring can be highly effective, parents cannot monitor their children's viewing habits all the time, even with a lock-out device. This is particularly true where both parents are working, or in single-parent families, or in households where parents are unconcerned about what their children watch. n237 The only realistic solution, therefore, is maintaining and improving the industry's voluntary advisory system and process of self-regulation. Certainly, the independent monitoring system is a step in that direction.
2. legislation involving safe harbor hours
One method of "cleaning up" the airwaves is eliminating all violent programming during those times of the day when children are most likely watching television. This would shield a majority of children from the detrimental effects of viewing televised violence. Basically, such legislation would treat violent programming in the same manner that indecent programming is treated now -- shunting it off to the late-night hours. n238
a. Senate Bill 1383 - Children's Protection from Violent Programming Act of 1993
On August 5, 1993, Senator Hollings (D-S.C.) introduced Senate Bill 1383, which would amend the Communications Act of 1934 to prohibit the public distribution "of violent video programming during hours when children are reasonably likely to comprise a substantial portion of the audience." n239 The FCC would define these hours as well as the term "violent programming." n240 The bill exempts premium and pay-per-view cable programming and authorizes the FCC to exempt news programs, documentaries, educational programs, and sporting events. n241 Moreover, the FCC would consider compliance with the act when renewing licenses, and would repeal the licenses of repeat violators. n242
The idea of providing "safe harbor hours" when certain programming could not be broadcast is troubling because of First Amendment concerns. The effect of channeling violent material to later hours may [*508] cause programmers to forego broadcasting such speech altogether. n243 "Any restriction on speech, the application of which turns on the content of the speech, is a content-based restriction regardless of the motivation that lies behind it." n244
In an analogous situation, the FCC restricted indecent programming to later hours of the day when children would not be watching. The Court of Appeals for the District of Columbia Circuit concluded that the FCC's safe harbor rule must be precise and carefully tailored to give broadcasters clear notice of the times of day during which they can safely air indecent material. n245 The court accepted as compelling interests the interest of the government in protecting children from indecent material, the interest of parents in deciding whether to expose their children to such material, the interest of broadcasters in airing speech at times of day when children are not likely to be in the audience, and the interest of adults in exercising their rights to see and hear programming which may be inappropriate for children, although not obscene. n246
In Gillett Communications v. Becker, n247 a federal district court in Georgia upheld FCC regulations designating the hours between 12:00 midnight and 6:00 a.m. as safe harbor hours. n248 In this case, the court ruled that a videotape containing graphic depictions and descriptions of the surgical procedure for abortion would have a negative impact on children in the viewing audience; therefore, the tape should be aired during a time when children are unlikely to comprise a substantial portion of the audience. n249 The court emphasized that the political advertiser was not denied his right to air the videotape, only that the times he could air the tape were limited, thereby reducing the "chances of injury to the "psychological well-being' of minors in the community." n250
Many argue that channeling speech is unconstitutional because it prevents artists and other media players from ""speaking' during those times" and also prevents "those who wished to hear, and were unlikely to be adversely affected by" the speech from hearing the message. n251 On [*509] the other hand, supporters of safe harbor hours legislation insist that a compelling governmental interest exists "in limiting the negative influences of violent video programming on children." n252 These supporters contend that channeling is "the least restrictive and most narrowly tailored means to achieve that compelling governmental interest." n253 Just as Congress can restrict indecency over the public airwaves, advocates of safe harbor hours legislation are attempting to give the FCC power to enforce restrictions on televised violence. n254
The Court of Appeals for the District of Columbia Circuit recently addressed the issue of safe harbor hour regulations in Action for Children's Television v. FCC, n255 and held that, despite compelling interests in protecting children from indecent material, the statute was not sufficiently narrow to meet constitutional requirements. n256 In this case, "the government has not demonstrated that its independent interest in shielding children from indecent broadcasts automatically outweighs the child's own First Amendment rights up to her eighteenth birthday." n257 The court stated that when legislation involves the First Amendment rights of adults, the government cannot argue that
"there is a reasonable risk that significant numbers of children ages 17 and under" are in the listening and viewing audience ... The government must adduce data which permits a more finely tuned trade-off between adults' First Amendment rights and the government's interest in protecting children from indecent material as that interest varies in importance with their age. n258
On the FCC's petition, however, the panel's judgment was vacated and rehearing en banc ordered. n259 Nevertheless, the panel's decision is noteworthy for its balancing of interests in this controversial area.
While some courts are willing to uphold safe harbor hour legislation for broadcasts of indecency, many others may be reluctant to do so based on First Amendment concerns. The Supreme Court has yet to address this issue, but because these regulations are content-based the Court would likely strike them down on First Amendment grounds. n260
[*510] Similar regulations restricting violent content are apt to be judged with the same standard. It is extremely difficult to limit speech reaching children while preserving the rights of the rest of the population to see or hear that speech. The viewers' rights are paramount. "It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC." n261 Adult viewers have the right to watch violent programs at any time of the day and Congress should not be capable of restricting that right. Therefore, a government mandate such as Senate Bill 1383, which channels programs containing violent content to late night hours, would have a chilling effect on freedom of speech and expression.