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MEDIA VIOLENCE AND THE FIRST AMENDMENT: THE CONFLICT BETWEEN FREEDOM OF SPEECH AND PROTECTING AMERICA'S YOUTH* By Helen Gerosthathos** INTRODUCTION Wives, nuns, sluts, whoever
the bitches might be, he will kill them slowly, leaving enough air in their
lungs so their screaming will be prolonged. He will paint the forest with their
blood. I got the machete from O.J., bitch I’m a kill you. [1] These are the lyrics of
Grammy-Award winning artist, Eminem; the controversial rapper whose lyrics
epitomize what is at the heart of the debate between the freedom to express
violent ideas and the impact this expression has on aggression in children.
While violence in entertainment has been around for decades, recent school
shootings and increased studies linking media violence to aggression in
children have brought the issue into the spotlight once again. Americans face a dilemma
today between what they see as legitimate concern over what media violence is
doing to America’s youth and the time honored concern over allowing censorship
as a response.[2] While
violent forms of entertainment enjoy increased popularity, the courts, the
legislature and the industries themselves struggle to come up with solutions
that will address the public’s concern. What is clear upon examination of the
issue, however, is that media violence is a problem for which solutions are
stymied by appeals that invoke the Free Speech Clause of the First Amendment.
This has resulted both in inconsistent responses to the problem and gradual
improvements. This paper will examine the
impact of media violence on children and discuss how appeals to the First
Amendment have hindered efforts to effectuate substantial change in response.
Part I will Explore the different protections granted to the entertainment
media. Next, the paper will focus on the studies and experiments showing the
negative impact that media violence has on America’s children. Third, the paper
will analyze various regulatory efforts by courts, Congress, state legislatures
and the entertainment industries to address this impact and document the
successes and failures of each. Finally, the paper will present some proposed
alternatives and solutions in response to the community’s concern over violence
and the nation’s youth. I. Protections Under the
First Amendment for Entertainment Communications Historically, the Free Speech Clause of the First
Amendment—“Congress shall make no law . . . abridging the freedom of
speech”—has been interpreted to protect individuals from government attempts to
suppress political, ideological or scientific ideas either in art, movies,
literature or music. [3] With this in mind, courts have consistently
held that music, television, video games and movies enjoy Free Speech
guarantees.[4] This
protection, however, is not absolute. One of the difficulties faced by the
courts over protection of speech in broadcast media (defined as television,
video games, music, and the printed word) is that each form of media presents
different challenges to the traditional legal analysis associated with free
speech principles of the First Amendment.[5]
Several rationales have been proffered as to why
broadcast mediums present complex legal issues under the First Amendment. These
rationales include (1) the necessity to limit socially harmful conduct raised
by peoples’ exposure to sexually explicit and violent material;[6]
(2) the necessity to prevent children’s’ exposure to a variety of material that
may be harmful to them;[7]
and, (3) the concern that broadcast media, particularly television, are so
intrusive that its viewers are a captive audience [8]
thereby necessitating distinct treatment. From a psychological
perspective, researchers note that viewing violence and listening to violent
lyrics each have a different psychological impact on children than reading
about violence.[9] Watching
violence is less involving and the viewer has to make fewer connections and
personal references between his life and that which he sees.[10] The aforementioned considerations have
impacted regulatory efforts surrounding the issue of media violence because courts are struggling with balancing of traditional First Amendment
protections and the need to address the distinct impact that broadcast media
have on America’s children. II. The Impact of Media Violence on
America’ s Youth A. The Studies American children and adolescents are increasingly being
exposed to violence through television, movies, music and video games.
According to the American Academy of Pediatrics, by the age of 18, the average
young person will have viewed an estimated 200,000 acts of violence on
television alone.[11]
While children’s’ exposure to media varies considerably depending on the age,
socioeconomic status, and parental viewing habits,[12]
it is undisputed that children are exposed to violence in various broadcast
mediums. The question becomes whether this exposure alone manifests into actual
violence, perhaps explaining such shootings as the ones in Littleton, Colorado
and Jonesboro, Arkansas. Most observers agree that exposure to violence in
entertainment does not alone cause a child to commit a violent act. Factors
such as child abuse and neglect, victimization, bullying, drug and alcohol
abuse, and exposure to violence in the home also are contributory causes of
youth violence.[13] Despite
varying factors, however, the general consensus is that there is cause for
concern.[14] In response to this concern, the American
Academy of Pediatrics has taken an active role in supporting its findings that
media violence does contribute to aggressive behavior in children and
adolescents.[15] Over 1000
studies attest to this causal connection.[16]
Pediatricians claim that media violence may: (1) facilitate aggressive and
antisocial behavior; (2) desensitize viewers to future violence; or (3) increase viewers’ perceptions that they
are living in a mean and dangerous world.[17]
The figures paint a more disturbing picture. In the year 2000, homicide, suicide and accidents were
the top three causes of death for 15-24 year olds.[18]
Over 150,000 adolescents are arrested for violent crimes each year, more than
300,000 are seriously assaulted and 3,500 murdered.[19]
While the juvenile crime rate has decreased since 1996,[20]
research has shown that the strongest factor contributing to the violent
behavior that has occurred is previous exposure to violence.[21]
Additionally, studies indicate that humans begin imitating other individuals at
a very young age and such social interaction shapes the behavior of children.
Thus, observing violent images can lend itself to aggressive behavior in the
later years of a child’s life.[22]
This is significant considering the way American entertainment industries
portray violence. The American portrayal of violence is unique. American
television, for example, presents a view of violence that is unrealistic and
glamorized. Violence on television is depicted frequently, without consequence
and often times rewarded.[23] Rarely do television shows portray the
physical and psychological effects that violence can cause.[24]
The same problem arises in the movies. In a recent U.S. News and World Report article, John
Leo described how the movie Hannibal
portrays Hannibal Letter as a “riveting fellow who lives by his principles”;
“something like a Heathcliff, stormy and controversial, but darned attractive”
despite the fact that he eats human brains.[25]
He also refers to the recent movie about the Marquis de Sade, Quills,
who in real life beat women and molested children. The movie, however,
portrays him as a harmless man whose main problem is censorship.[26]
These unrealistic and glorified versions of violence contribute to aggression
and desensitization in children. Interestingly, one need only look to Japan—the
only other nation with as much media violence as the United States, but with
far less crime— to see how this particular
portrayal of violence, unique to American television and movies, has had such a
profound effect on children.[27]
Pediatricians have identified several mechanisms that can
be attributed to portrayal of violence in the American manner and the subsequent
increase in the aggressive behavior of children.[28] First, because conflicts are often resolved
quickly through violence and without consequences on television, children see
violence as their first response to conflict rather than the last.[29]
Second, because those committing the violence are viewed as heroes, children
see this as an endorsement of aggressive behavior.[30]
Finally, because children today watch television and movies so frequently, they
are desensitized when barraged constantly with violent images.[31] Pediatricians also expressed concern regarding the impact
of media violence channeled to preliterate children. In a recent symposium on
Entertainment, Violence, the Nation’s Health and the First Amendment, Dr.
Robert Sege discussed the different learning stages of children.[32]
He noted that the first stage is visual, where information goes straight to the
brain and begins forming habits in children. The second stage is hearing, which
occurs between 1 ½ - 2 years old. At this stage more decoding is necessary by
the child. The final stage is reading where the brain must do the thinking in
order to process the information. Because observational learning is a powerful
mechanism by which children acquire social skills,[33]
violent programming directed at preliterate children can have a significant
effect. Given the quantity and quality of programming that children are exposed
to, the causation seems clear.[34]
Experiments performed through the years attest to these findings. B. The Experiments A vast majority of experiments have been performed where
a group of children is exposed to violent media while a similar group is
exposed to nonviolent programs.[35] In one such experiment, ninety-six nursery
school students were divided into four groups: real-life aggression condition;
human film aggression condition; cartoon aggression condition; and control
condition (where the children did not view any films, etc.).[36]
In each group, with the exception of the control group, children viewed images
either via cartoon, movie, or in real-life of an adult punching and kicking a
Bobo doll.[37] The
children were then escorted individually to a separate room with a Bobo doll
inside and were observed. The researchers found that while none of the
individual forms of media caused more children to commit aggressive acts than
the other, the total aggressive acts of those who were exposed were
significantly greater than in the control group. [38]
Critics of the study, however, believe that connection is
not so clear. One explanation given for the change of behavior by the children
is that they become excited when they see something new. This excitement leads
to aggression. The key to unlocking the causal connection between the media and
violent behavior is whether children would exhibit this behavior on real
people, such as a brother or sister, as opposed to a Bobo doll. Critics answer
in the negative.[39] Another
criticism is that there is no proof that the type of aggression exhibited by
the children in these experiments is socially harmful.[40]
Additionally, there is no literature that suggests what kind of violent
portrayals in the media will result in what kind of violence.[41] Several studies have also been conducted comparing the
homicide rates in different countries before and after the introduction of
television. In one study, the Caucasian populations of the United States,
Canada and South Africa were used due
to similarities in programming, language, and technological advancement.[42]
Ten to fifteen years after the introduction of television, homicide rates
increased more than twofold in these countries.[43]
Additionally, urban homicide rates increased faster than rural rates because
television was first introduced into larger population markets.[44]
Critics of this study argue that the study failed to look
at countries such as Germany, Japan, and Italy where crime rates did not
significantly change when television was introduced. The study, they believe,
consists of hand picked numbers designed to satisfy the outcome of the study.[45] Opponents of the idea that media violence causes
aggression and violence in children caution readers to closely examine research
in the field. One problem noted is that many students writing their masters
theses will not get published unless some effect is found. As a result, there
are rarely any studies published that indicate media violence has no effect on
aggressive behavior in children.[46]
Another problem with the experiments is that very small sample sizes are
studied in controlled environments. This can produce unrealistic results.[47] While these
experiments and studies vary and do not take into account every factor that may
cause a child to commit a violent act, the end result is that media violence
does seem to have some impact on aggressive behavior in children. Despite what the American Academy of
Pediatrics deems “overwhelming evidence”[48]
attesting to the causal link between media violence and aggressive behavior,
the courts, the legislature and the entertainment industries are struggling
with ways to address the problem. III. The Response While the studies show that children in America are
affected by media violence, the attempts at curbing this result have been
inconsistent. Plaintiffs who are victims or whose loved ones are victims of
media induced violence are gaining virtually no ground seeking redress through
the courts. Legislators favoring the imposition of laws which would regulate or
censor the entertainment industry are continually met with opposition. The
entertainment industries themselves, though attempting to self-regulate, are
confronting increased scrutiny and criticism from the public who claim their
efforts are either insufficient or are failing. What is common throughout these
attempts is the reliance by the courts, legislatures and the entertainment
industries upon the principles of the First Amendment as a justification for
their slow reaction to solving or controlling the problem of media violence. A. The Courts While courts have found that music, movies, television
and video games enjoy First Amendment protections, that protection is not
absolute. Restrictions on the First Amendment are permitted when the speech
constitutes fighting words, incites imminent lawless activity, is defamatory or
is legally obscene.[49]
The courts have also recognized that the well being of children is a subject
within the state’s power to regulate.[50]
While this has primarily been applied to cases involving obscene or
pornographic material, the underlying notion is that First Amendment
protections are not absolute and courts do recognize a government interest in protecting children even at the
expense of the principles of the First Amendment.[51]
This was underscored in a recent opinion of the Seventh Circuit Court of
Appeals where the court stated, in
reference to violent video games, that “protecting people from violence is at
least as hallowed a role for government as protecting people from sexual
imagery.”[52] In the realm of broadcast media such as music, movies and
television, however, the courts are faced with a problem that has led to
different treatment of media violence from that which is classified as
obscenity. This problem can be divided into two separate concerns. The first is
the need to balance the interests of children while not infringing on the First
Amendment rights of the general public. The second is the lack of causal
connection between listening to or watching a violent act and then committing a
violent act. The result is that plaintiffs face tremendous hurdles when suing
entertainment industries. The first problem regarding the court’s concern with
limiting the rights of the general public in an effort to protect children is
particularly relevant in television. In Olivia N. v. NBC,[53]
an action for damages was brought on behalf of a nine-year old girl who was
artificially raped with a bottle after her assailants watched the movie Born Innocent. The court noted two
specific problems regarding television censorship aimed at protecting children.
The first is that regulating the television networks would have a chilling
effect on speech and that subjecting television networks to liability because
of their broadcasting choices would lead to self-censorship, a result that
would dampen the variety of public debate.[54]
The second concern is that the adult population would be subjected to watch
only what is fit for children.[55] In Zamora v. CBS,[56]
an action was brought against three broadcasting companies by the father of a
young man who killed an 83 year old woman, alleging that television violence
caused his son to become desensitized to violent behavior, thus leading to the
murder. This court, as in the Olivia N. decision, stressed the
importance of the viewers and the public to receive suitable access to social,
political, esthetic or moral ideas.[57]
While these cases represent only a small sample, it is
clear upon examination of the case law[58]
involving television networks that the industries are succeeding in utilizing
the First Amendment as a defense to their broadcasting of certain violent
entertainment directed at children. The second factor that has made it difficult for
plaintiffs to recover stems from the causation analysis that courts are
applying in media violence suits. The majority of courts look to the test
delineated in Brandenburg v. Ohio,[59]
when analyzing media violence suits. In Brandenburg, the defendant, a
former Ku Klux Klan member convicted of violating the Ohio Syndicalism Statute,
challenged the constitutionality of this statute on Free Speech grounds.[60]
The Supreme Court held that “the constitutional guarantees of free speech and
free press do not permit a State to forbid . . . the use of force except where
such advocacy is directed to inciting or producing imminent lawless action and
is likely to incite or produce such action.”[61]
Because this test makes it necessary for the plaintiff to causally prove that
listening to or watching violence produced imminent
lawless activity, the burden is often too high for plaintiffs to prevail and
recover damages. In addition, because the Brandenburg test is virtually
the only one used by the courts in these types of cases, the artists and the
media industries are able to defend themselves by invoking the basic Free Speech principles set forth in
the First Amendment in continuing to produce their work. A number of suits have been brought where the court has
used the Brandenburg test in making its decision. In McCollum v.
Osbourne,[62], an action
was brought by the parents of a young man who committed suicide while listening
to Ozzy Osbourne’s music. The particular song at issue was Suicide Solution whose lyrics depict suicide as the only solution
for a person involved in heavy drinking. The court held against the plaintiff
because they did not find that the song incited imminent lawless action under
the Brandenburg test. The court also stated that the listener’s suicide
was not a reasonably foreseeable consequence of the distribution of this
recorded music so as to render the defendant liable.[63]
In a similar case, Waller v. Osbourne,[64]
the parents of a teenage boy brought a wrongful death suit alleging that the
song Suicide Solution contained
subliminal messages that incited their son to commit suicide. The court here,
as in the McCollum case, went through the Brandenburg test to
conclude that the defendants did not engage in culpable conduct that incited
imminent lawless action. Again, the court was reluctant to permit recovery without direct evidence of
causation. Finally, in Davidson v. Time Warner,[65]
the widow of a slain police officer sued Time Warner claiming that the rap
album 2Pacalypse Now by Tupac Shakur
was the cause of her husband’s death. In this case, Ronald Howard, who was
driving a stolen car, was pulled over by state trooper Davidson in an unrelated
traffic stop. During the traffic stop, Howard pulled out a handgun and fatally
shot Officer Davidson. At the time of the shooting Howard was listening to 2Pacalypse Now, which contains at least
one song that advocates violence against police officers. The court held for
the defendants, once again claiming that the Brandenburg test was not
met because although the songs were insulting and outrageous, there was no
proof that the artist intended to incite violence. While these cases do not all implicate minors, the
message from the court is clear. The First Amendment is designed to protect
entertainment media unless the speech falls within a few specific exceptions.
Despite the fact that protecting children is one of these exceptions when
dealing with the obscenity issue, courts are reluctant to impose any
restrictions that would infringe on the First Amendment rights of the general
public to listen or watch this kind of entertainment. As discussed below, without the backing of the courts, any
legislative attempts at addressing this issue faced an uphill battle. B. The Legislature In the last decade, Americans have seen highly publicized
attempts by political figures to pass legislation that placed limits on media
violence due to its impact on America’s children. In the early 1990’s, Tipper
Gore made headlines when she co-founded the Parents’ Music Resource Center, an
organization lobbying for a labeling system for sexually or violently explicit
music lyrics. Lynne Cheney followed her lead and she too has been advocating
for a better rating system.[66]
Most recently, Senator Joseph Lieberman of Connecticut has been in the
news with his appeal to Hollywood to
self-regulate rather than Congress proposing legislation. However, legislative attempts, as with the
results in the courts, have failed to adequately protect children from media
violence because of the reluctance to infringe upon First Amendments rights.[67]
Federal legislation aimed at restricting access to
violent material by children has encountered strong resistance and the majority
of proposed acts have failed. One such act was the Motion Picture Industry
Accountability Act proposed by Senator Christopher Bond of Missouri. This act
called for a commission to study the film industry and determine standards that
would allow individuals to seek legal redress against film producers in cases
where the content of their products influenced destructive behavior. [68] Another act proposed by Senator Ernest
Hollings of South Carolina was an amendment to the Federal Communications Act
of 1934 that would have required that the broadcast of violent content be
limited to hours when children are unlikely to be watching.[69]
Further, Representative Henry Hyde of Illinois also proposed an amendment which
would criminalize the act of knowingly furnishing explicitly violent or sexual
material that lacks serious literary, artistic, political or scientific value
to children under 17.[70] All of these acts and amendments failed to
pass. While federal legislative attempts such as the ones
mentioned above failed to become law, the efforts have not been in vain. In
July of 1999, several senators proposed an “Appeal to Hollywood” which called
for a voluntary code of conduct on the entertainment industry to encourage the
various entertainment outlets to play a role in decreasing the portrayal of
violence aimed at children.[71]
Critics of federal involvement believe that mandatory rules are not far behind.[72] Perhaps one of the biggest impacts the federal government
has made in addressing this issue comes from the recent reports undertaken by
the Federal Trade Commission that address the marketing of violent
entertainment to children. [73]
The first report, made public in September 2000, examined the motion picture,
video game and music industry’s practices for controlling the amount of violent
content reaching children. The report concluded that while each industry did
have some kind of ratings system in place to alert the public about violent
content, they were marketing this violent entertainment to children who fell
below the appropriate age group on the rating. While the specific findings of
the reports will be discussed in the proceeding section on industry response,
it is worth noting that the release of these FTC reports have placed pressure
on the entertainment industries to address the issue internally, fearing
government regulation is not far behind. C. The Entertainment Industries Entertainment industries
have succeeded thus far in utilizing the First Amendment as a method of both
protecting their products and shielding themselves from any resulting liability
from the use of those products. While advocates for tougher regulations condemn
the industries for hiding behind the First Amendment when their primary motive
is making profits, there is some indication that reliance on the First Amendment
does not provide absolute protection. In her recent testimony before the Senate
Committee on Commerce, Science and Transportation, Lynne Cheney noted that the
industries’ strong reliance on the First Amendment might have the opposite
effect.[74]
She stated that the industries’ “persistent irresponsibility threatens the
First Amendment as their product is so objectionable that more and more good
citizens find appealing the idea that government regulation should remove
entertainment industry products from the public square.”[75]
While it is difficult to measure the impact, it is clear that entertainment
industries have turned to self-regulation as a means to avoid government
regulation or censorship. The Motion Picture Industry The Motion Picture Association
of America (MPAA) utilizes a self-regulated rating system whose objective is to
offer parents advanced information about movies so they can decide what they
want their children to see.[76]
MPAA’s rating system is the longest running self-regulatory system and most
adults are familiar with the ratings.[77] This system was established shortly after
two 1968 Supreme Court decisions, Ginsberg v. New York,[78]
and Interstate Circuit v. Dallas,[79]
upheld the rights of states to protect children from certain materials ordinarily
protected under the First Amendment. Rather than risk censorship, the film
studios and theater owners created a national rating system.[80]
While the majority of moviegoers understand the rating
system used by the MPAA, the problem relating to media violence and children
arises in the application of such ratings. The Federal Trade Commission in its
examination of the motion picture industry found that despite ratings warning
children and their parents that the material was inappropriate for minors, the
industry was indeed marketing this same material to children. For example, 80%
of the 44 “R” rated movies chosen in the sample were marketed to children under
the age of 17 either through advertisements in teen magazines, by placing “R
rated trailers in lower-rated movies, or through express statements made by the
industry indicating that their target audiences were children under seventeen. [81]
Another problem noted in the September 2000 report was that the theater owners
were not ensuring that children under seventeen be barred from attending an “R”
rated movie.[82] The result being that minors continue to be
exposed to media violence due to lack of enforcement, and parents remain
unaware of how much violent content is in each film with the current rating
system. Given the situation described above, the question becomes why is the
government allowing the industry to continue self-regulation given the obvious
practice of the MPAA to market violent content to children? The answer lies in
the Free Speech principles of the First Amendment. As stated previously, the industry is well aware of the
courts' reluctance to place limits on this form of speech when the possibility
exists that the First Amendment rights of adults could be infringed.
Additionally, the American public strongly disagrees with censorship and its
appropriateness as a remedy,[83]
thereby contributing to the utilization of the First Amendment as a defense.
However, and despite the judicial victories earned by the entertainment
industries,[84] public
attention after the tragedy at Columbine High School and subsequent legislative
pressures have caused the MPAA to approach the issue of media violence more
seriously. After the Columbine
shooting, eight of the largest domestic theater chains indicated that they had
taken measures to increase enforcement of the minimum age requirements for “R”
rated films.[85]
Additionally, the updated report issued by the FTC in April of 2001 indicated
that the MPAA made some progress in limiting advertising to teens of violent
films and placing rating information in their movie ads.[86]
For example, ads for “R” rated films were not seen in teen magazines and
trailer placement generally corresponded with the films of the various age
groups.[87]
While more work needs to be done,[88]
the MPAA has responded to the public and government pressure to address the
problem of media violence aimed at children. The Music Industry The music industry is one of the least regulated
entertainment industries and self-regulation has not achieved the level of
protection parents and legislators may have expected. The recording industry
has noted that music is often a target when the public is looking for someone
to blame.[89] Throughout
the years, music has played a role as being both provocative and controversial.[90]
While the industry acknowledges that all music is not appropriate for children
under fifteen, the answer to the problem, they say, is not censorship, but
regulation.[91] This
regulation, however, has been met with strong criticism. One of the reasons that the music industry may be lagging
in terms of responding to the media violence phenomenon is the lack of studies
indicating a connection between listening to violent lyrics and aggression in
children. Pediatricians noted that a possible explanation for the lack of cause
and effect relationship is that teenagers often do not fully understand the
lyrics they are hearing.[92]
On the other hand, studies have shown that a preference for listening to heavy
metal music, for example, may be an important indicator for alienation,
substance abuse or suicide risk.[93]
The public perception falls within this category. Most recently, the press had
frequently mentioned the Columbine shooters’ fascination with the band Marilyn
Manson. The rap artist Eminen has also been at the center of controversy with
his misogynistic lyrics and violent themes. Earlier, Ice-T made headlines when
his song Cop Killer, performed by
Body Count, was criticized for allegedly spurring violence against police
officers. In response to all of the concerns raised by parental
groups claiming that their children were exposed to music with explicit lyrics,[94]
the Recording Industry Association of America (RIAA) created a parental
advisory program in 1985.[95]
Under this program, records with lyrics that include strong language or graphic
references to sex and violence receive a parental advisory label. The concern
over this system, however, is that unlike the MPAA, the decision to label a
recording is made by individual record companies, not the RIAA.[96] As the RIAA’s web page states, the record
company considers various factors when they decide to release a record. While
the initial recordings come from the artist’s personal vision, the record
companies may ask an artist to re-record certain songs because of questionable
material.[97] Similarly,
the record company may place parental advisory labels on the records. The RIAA
believes that this system is more effective because each record company is
intimately aware of the recording’s content and can better make a determination
of what is or what is not considered offensive.[98]
The problem, note critics of the system, is that this
system does not provide parents with the information they need to make
decisions on behalf of their children.[99]
For example, when a label on a CD indicates that there is explicit content, the
definition of explicit content may vary from record company to record company.
This makes it difficult for parents to assess the nature of the musical content
within. Critics of the current system also believe that the current labeling
system has become a marketing device for the industry. Charlie Gilreath,
Entertainment Monitor’s editor-in-chief, stated that a “child looking for hard
core rap records is not going to buy one that does not have [an advisory label]
on it.”[100] The RIAA,
however, emphatically states that it takes its responsibility to help parents
identify music with explicit lyrics seriously.[101]
In the most recent FTC report, the Commission found that
the RIAA had not responded to the Commission’s first report and none of the
reforms announced by its trade association had been implemented.[102]
A few of the problems the Commission noted was that the RIAA was routinely
advertising on teen programs music labeled as “explicit content.” Additionally,
the advertisements did not indicate that the recording was marked with a
parental advisory label.[103]
The RIAA, however, has been clear with their objectives.
The industry expressed the notion that “fears concerning youth violence are
well founded, but witch-hunts are not.”[104]
Currently the RIAA is working hard with state and federal legislatures to
ensure that the rights of artists are preserved by currently opposing: (1)
proposals which would allows local governments to rate music concerts and label
tickets in advance of sales with the goal of regulating access of minors to the
shows; (2) laws seeking to change Supreme Court standards for materials that
are denied to children by deeming the material harmful to minors; and (3)
proposals imposing financial penalties for merchants selling recordings with
parental advisory labels to minors.[105]
What seems clear from the music industry is a commitment to fight against both
government regulation, which impedes the First Amendment rights of the artists,
and public discontent, which the industry believes is a cyclical problem when
it comes to music. The Video Game Industry The video game industry has the most comprehensive
regulatory system among the entertainment media. As a result of congressional
hearings and proposals in the early 1990’s expressing concern over the violent
content in the games, the industry formed the Interactive Digital Software
Association (IDSA). The IDSA then created a separate division, the
Entertainment Software Rating Board (ESRB) to develop a labeling system.[106]
Three people who have no ties to the industry and whose identities remain
anonymous rate each game. They are then instructed to record every instance
where the board member observes a
segment of gameplay that qualifies under a particular category in the rating
system. When two out of three board members apply the same rating, that rating
category becomes the consensus rating for the game.[107] While the video game industry has made significant
strides in addressing the need for higher parental controls, there is still
work to be done. The F.T.C. noted that while ratings do exist on the games,
they often do not indicate what level of violence is included within that game.[108]
Given the realistic nature of many of the new games, providing parents with a
clear understanding of what kind of violence is contained within is a key
component to protecting minors against harmful images. Another component is
eliminating the marketing of adult rated games to the under-17 market. The most
recent F.T.C. report notes that the video game industry continues to place ads
for mature rated games in magazines with a substantial audience under 17 years
of age.[109] IV. Proposed Solutions Addressing the impact of media violence on
children while not infringing on First Amendment rights is a complex issue. As
the research indicates, the courts, the legislature and the entertainment
industry are struggling to find
solutions. On a positive note, the one area where most Americans do agree is
that censorship is not the answer. Therefore, the remedy has been to rely on
the industries themselves to self-regulate and provide parents with a means to
help their children pick suitable material for their age group. As noted
previously, this solution has not been without its problems. The question is
where do we go from here. Proposed Solution
Number One: Utilizing the Miller Test for Media Violence Given the difficulty plaintiffs have in recovering
damages for injuries sustained on account of
media violence, several solutions have been offered that may provide
relief. The first solution entails establishing an exception to the Free Speech Clause for media violence
utilizing a standard similar to the obscenity standard enunciated by the
Supreme Court in Miller v. California.[110]
Critics of the courts’ use of the First Amendment to permit the portrayal of violence in the media on free speech grounds suggest that in order for any substantive change to occur within the entertainment industry, a court must provide for effective limitations.[111] One way to accomplish this is by declaring that certain types of media violence, like pornography, is obscene and should therefore be restricted under the First Amendment. The Supreme Court has previously held that obscenity, which includes pornographic material, is not afforded First Amendment protections. Using the test based on the decision in Miller that substitutes “violence” for “obscene sexual content” would satisfy the concern over freedom of expression versus harm to children. The test set forth in Miller provided that illegal obscenity can be determined by assessing 3 factors: (1) “whether the average person applying contemporary community standards would find that the work appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”[112] The rationale behind applying this test to the issue of media violence is that certain violent content, like pornography, is obscene and therefore entertainment companies should be held liable if they are producing and marketing obscene material. By proving that excessive media violence is in fact obscene using the modified Miller test, courts and legislatures would be in a better position to restrict excessive and unwarranted media violence. In practice, however, one court was reluctant to impose liability under the modified Miller test. In Luke Records, Inc. v. Navarro,[113] the record company and music group that produced the record As Nasty as They Wanna Be by 2 Live Crew sought relief after a sheriff in Florida obtained an ex parte court order declaring the record obscene.[114] The Court of Appeals for the Eleventh Circuit held that the sheriff failed to meet the burden of proof that the material was obscene under the Miller test.[115] One of the rationales for the court’s decision was that in order for the legal precedent in Miller to apply, all three elements of the test had to be met.[116] Although excessive violence can certainly lack serious value under the Miller test, excessive violence does not by a strict definition appeal to the prurient interest or depict sexual conduct offensively. Accordingly, plaintiffs drawing comparisons between illegal obscenity (using Miller’s three-pronged test) and excessive media violence on the other hand face the same hurdles mentioned above unless the courts modify the Miller test to deal specifically with media violence. In
order to adequately protect minors from excessive media violence, a court must
determine whether the violence portrayed is so excessive and lacks all value so
that it could be likened to illegal obscenity such as pornography.[117]
Using this modified test, the end result would be that violence could still be
depicted, but violence that can be classified as obscene would undergo stricter
regulation. Courts and legislatures involved in policing the new excessive
violence standard for media violence would be forced to engage in the same the
line drawing analysis and involving the same community standards as set forth
in the Miller test to assess obscenity. Rather than viewing this as a
censorship mechanism, which has some skeptics concerned,[118]
this excessive violence standard can be seen as a method of allowing artists to
continue to express themselves using violence while the entertainment industry
at the same time restricts excessive violence from reaching minors. Opponents of this idea believe
that the result will be a chilling effect on the industry and prevention of a
free flow of ideas. They also claim that drawing the line between good violence
and bad violence would be a difficult burden for the courts to overcome.[119]
In response, the argument is made that just as the entertainment industry has
adapted to the strict standards regarding pornography, so too would they adapt
to violent programming restrictions.[120]
Proposed Solution Number Two: Education The second proposed solution does not involve
a change in the law but merely an increased education strategy. One of the chief criticisms of the
self-regulatory approach taken by the entertainment industry is that despite
its effort to educate parents on violent content, children are still being
exposed to violence either through marketing, peers, or self-initiation. One of
the proposed solutions to this problem is creating media literacy awareness
programs. The American Academy of Pediatricians suggest that parents become
media literate through watching television with their kids and discussing the
content with them, thereby initiating the process of selective viewing from an
early age.[121] The R.I.A.A. encourages parents to do the
same.[122] Through
their “Talking With Kids About Tough Issues Campaign,” the R.I.A.A. is working
with recording artists to develop public service materials, which will help
parents to better communicate with their children about difficult issues facing
their lives. Media literacy programs in schools, for example, would be another
way to help children interpret and analyze what they are seeing and hearing.[123]
The bottom line of this solution is to facilitate communication and awareness
surrounding violence rather than imposing regulations, which would prohibit
minors from accessing the material. Proposed
Solution Number Three: Increased Self-Regulation Through Universal Standards While legislative attempts have largely failed, proponents of increased regulation of media violence believe that the politicians and advocacy groups should continue advocating comprehensive regulation of the media and entertainment industries.[124] For example, in his latest appeal, Senator Joseph Lieberman urged Hollywood to take a more responsible role in the marketing of violent content to children. Similarly, in its reports, the F.T.C. suggested that the industries: (1) expand or establish codes that prohibit target marketing and impose sanctions for violations; (2) improve self-regulatory system compliance at the retail level; and (3) increase parental awareness of ratings and labels.[125] Finally, the American Academy of Pediatrics urged producers and artists to exercise sensitivity and self-restraint in what they depict given the impact it has on children.[126] All these point to working within the current system of allowing industries to self-regulate, but pushing the industries to be more accountable for the products that they provide. While these attempts,
including the reports of the Federal Trade Commission, have succeeded in
drawing attention to the issue of excessive media violence and by placing the
industries on the defensive, the end
result is that each industry has created their own system for regulating
violence. These various systems make it difficult for parents to choose
materials for their children. Creating universal standards that would apply to
the all the major media and entertainment industries across the board
would better equip parents and children with the information they need to make
educated decisions regarding content. This would include industry-wide
standards for determining what constitutes violence.
CONCLUSION Media violence and the First Amendment is a clearly complex issue. At the heart of the debate is the balancing of the need to preserve free speech rights with the need to protect our children from depictions of violent material. This paper has provided examples of how solutions to media violence are stymied by appeals to the First Amendment. These appeals have frustrated the ability of the courts and legislatures to make any real headway in the protection of children from this material. On the other hand, the appeals have provided the various entertainment industries with great autonomy to self-regulate and create their own solutions. At the end of the day it remains to be seen what direction the various groups will follow. Surely as Eminen’s songs climb the charts and violence among youth continues, the issue will remain at the forefront of American families. * This article is an outgrowth from the 2001 Milton Sorokin Symposium, the eighth symposium jointly sponsored by the Center for First Amendment Rights, Inc. and the University of Connecticut School of Law. The symposium was held at the Law School on Monday, April 30, 2001. On the panel were Robert Sege, MD, PhD, Associate Professor of Pediatrics at Tufts Medical School; Attorney Gail Markels, General Counsel of Interactive Digital Software Association in New York; and Attorney Robert Corn-Revere ,First Amendment attorney with Hogan & Hartson LLP in Washington D.C. Professor Frederick Lawrence of Boston University School of Law served as moderator. ** The author is currently a third-year law student at the University of Connecticut School of Law. [1] Eminem, Kill You, on The Marshall Mathers LP (Interscope 2000) [2] Sissela Bok, Violence as Obscenity: Limiting the Media’s First Amendment Protection. By Kevin W. Saunders, 95 Mich L Rev 2160, 2160-2165 (1997) [3] See Federal Trade Commission, Rep. No. 994511 Appendix C, Marketing Entertainment violence to Children: A Review of Self-Regulation and Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries (2000) [4] See Schad v. Burrough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176 (1981). See also American Amusement Machine Assoc. v. Kendrick, et. al., No. 00-3643, 2001 U.S.App. LEXIS 4371(7th Cir. Mar. 23, 2001). [5] Thomas G. Krattenmaker and L.A. Powe, Jr., Televised Violence: First Amendment Principles and Social Science Theory, in First Amendment Anthology 348, 352- 359 (Donald E. Lively, et. al. eds., 1994). [6] Matthew l. Spitzer, Seven Dirty Words and Six Other Stories (1986) [7] Id. [8] Krattenmaker & Powe, supra, at 352. [9] Spitzer, supra
note 6, at 68. [10] Id. [11] American Academy of Pediatrics, Policy Statement Media Violence RE9526, Pediatrics Vol. 95, No. 6 (June 6, 1995). [12] Surgeon Gen. Rep. (Jan 2000) <http.www.surgeongeneral.gov> [13] Federal Trade Commission, Marketing Violence to Children: A Review of Self-Regulation and Industry Practices in the Motion Picture, Music Recording and Electronic Game Industries, September 2000, p2 . See also Surgeon Gen. Rep., supra note 12. [14] See F.T.C. Rep, supra note 13. See also Recording Industry Association of America website <http.www.riaa.com> where RIAA stated that “fears concerning youth violence are well-founded, but witch hunts are not.” [15] Id. [16] Id. [17] Id. [18] Michael Rich, MD, MPH, FAAP, American Academy of Pediatrics, Public Health Summit on Entertainment Violence, Washington, DC (July 26, 2000). See also <http.www.aap.org> [19] Id. [20] See Scary News, Soothing Numbers, U.S. News and World Report, April 23, 2001, at 74. [21] See Rich, supra note 18. [22] See Surgeon Gen. Rep., supra note 12, at Appendix 4-B [23] Robert Sege, MD, PhD and William Dietz, MD, PhD, Television Viewing And Violence In Children: The Pediatricians Agent For Change, Pediatrics, Vol. 94, No 4 (Oct 1994). [24] Id. [25] See John Leo, Lovely Monsters, U.S. News and World Report, March 5, 2001, at 14. [26] Id. [27] See American Academy of Pediatrics, supra note 11, citing a 1981 study which found that the nature of the portrayal of violence in Japan is more realistic and places a greater emphasis on physical suffering. Thus in Japan, the bad guys are the ones committing the violence while the good guys suffer the consequences. In this context, violence is seen as wrong, a villainous activity with serious consequences. This is the opposite approach from the portrayal of violence in the United States. [28] See Sege, supra note 22. [29] Id. [30] Id. [31] Id. [32] Symposium, Entertainment, Violence, the Nation’s Health and the First Amendment, held at the University of Connecticut School of Law (Apr. 31, 2001). [33] See Surgeon Gen. Rep., supra note 21, [34] See Symposium, supra note 31. [35] See Sege, supra note 22. [36] See Spitzer, supra note 6, at 97. [37] Id. [38] Id. Additional experiments were also conducted on adolescents and college students. [39] See Symposium, supra note 31. [40] See Krattenmaker, supra note 5, at 351. [41] Id. [42] See Sege, supra note 22. [43] Id. [44] Id. [45] See Symposium, supra note 31. [46] Id. [47] Id. [48] See Rich, supra note 18. [49] See Waller v. Osbourne, No. CIV, 88-111-ALB/AMER(DF), 59 USLW 2706 (1991). See also Miller v. California, 413 U.S. 15, 93 Sup.Ct. 2607 (1973). [50] See Ginsberg v. State of New York, 390 U.S. 629,636 88 S.Ct. 1274, 1279 (1968) stating that because of the state’s exigent interest in preventing distribution to children of objectionable material, it can exercise its power to protect the health, safety, welfare and morals of its community (in this case, pornographic material). [51] Id. [52] See American Amusement Machine Assoc. v. Kendrick, et. al., 2001 LEXIS 4371 at *1 (where city ordinance limiting the access to minors of video games that depict violence was found not to violate the First Amendment because the city lacked a reasonable basis for believing the ordinance would protect children from harm.). [53] 126 Cal.App.3d at 488 (1981). [54] Id. at 494. [55] Id. at 495 (quoting Butler v. Michigan, 352 U.S. 380 (1957)). [56] 480 F.Supp. 199 (1979). [57] Id. at 205. [58] See also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S.Ct. 1878 (2000) where regulation requesting cable operators to scramble sexually explicit channel in full or limit the programming to certain hours when children were unlikely to watch was deemed overbroad since it infringed on adults’ First Amendment rights. [59] 395 U.S. 444, 89 S.Ct. 1827 (1969) [60] The Ohio Syndicalism Statute made it a crime for voluntarily assembling with any society formed to teach the doctrines of criminal syndicalism. [61] Id. at 447, 89 S.Ct. at 1829. [62] 202 Cal.App. 989, 249 Cal.Rptr. 187 (1988). [63] Id. [64] 59 USLW at 2706. [65] No. CIV. A.V.-94-006, 1997 WL 405907 (S.D.Tex) (March 31, 1997). [66] Lynne Cheney, State Committee on Commerce, Science and Technology <http. www.drudgereport.com/mat28jj.htm> [67] Because state government efforts have focused predominantly at other sources of violence, namely access to firearms and expanding criminal laws, this section will focus primarily of federal legislative attempts. See Symposium, School Violence, School Safety, and the Juvenile Justice System, 37 Hous.L.Rev. 21 (2000). [68] Id. [69] Id. [70] Id. See also Miller, 413 U.S. at 15, 93 Sup.Ct. at 2607, citing the standards for pornography used by Rep. Hyde in his amendment. [71] Clay Calvert, Media Bashing at the Turn of the Century, 2000 L. Rev. Mich. St. U. Det. C.L. 151,151-163 (2000) [72] Id. [73] See F.T.C Rep., supra note 13. See also Federal Trade Commission Follow-up Report (Apr. 24, 2001) <http.www.ftc.gov/opal2001/04/youthviol.htm> |