Foreword: Protecting our children and our freedom

Wednesday, May 9, 2007

Ronald K.L. Collins

Nearly four decades ago, Justice Brennan declared: “The well-being of [our] children is of course a subject within the State's constitutional power to regulate.” In that same case, Ginsberg v. New York (1969), Justice Fortas objected to the majority’s willingness to set aside First Amendment freedoms: “I agree that the State in the exercise of its police power — even in the First Amendment domain — may make proper and careful differentiation between adults and children. But I do not agree that this power may be used on an arbitrary, free-wheeling basis.”

That free-speech debate continues, most recently with the release of the Federal Communications Commission’s release of its TV-violence report (April 6, 2007). The report comes in response to a request three years ago from 39 members of the House of Representatives. They asked the FCC to address the following questions:

  1. “What are the negative effects on children caused by the cumulative viewing of excessively violent programming?”
  2. “What are the constitutional limits on the government’s ability to restrict the broadcast of excessively violent programming when children are likely to be a significant or substantial part of the viewing audience? In particular, could television violence regulations, including possible time channeling requirements, be narrowly tailored to the governmental interests they are intended to serve?”
  3. “Is it in the public interest for the government to adopt a definition of ‘excessively violent programming that is harmful to children,’ and could the government formulate and implement such a definition in a constitutional manner?”

Those questions formed the basis for the commission’s new report, which examines the various studies concerning children and TV violence and thereafter makes certain recommendations calling for particular kinds of government regulation.

We have invited two noted scholars, two First Amendment lawyers and a media activist to offer their assessments of the new FCC report. To further inform our readers, we have also included a variety of resource materials, ranging from the FCC’s 1975 report on TV content to Judge Richard Posner’s 2001 opinion concerning violent video games.

In all of this, the reader can judge where he or she stands on questions such as:

  1. Can the government adequately define “excessive television violence” both in a meaningful way and in manner that does not abridge our First Amendment freedoms?
  2. Does excessive TV violence cause harm to children? Is it correlated with such harm? If so, how and to what extent does it do that?
  3. What existing technological alternatives are available to parents to police objectionable TV content? Are they adequate? If not, what if anything should the government do?
  4. Would “time channeling” solutions in this area significantly reduce any alleged harm to children relating to TV violence? Are such solutions constitutional?
  5. And finally, can Congress regulate cable programming by requiring some form of “a la carte” purchasing options to families?

Such questions and others are explored in the symposium that follows. Consider them and decide for yourself what, if anything, the government ought to do to protect our children and safeguard our freedom. (Meanwhile, challenges to the FCC’s exercise of its powers to regulate indecency are pending in the 2nd and 3rd U.S. Circuit Courts of Appeal.)

We also refer our readers to an important but unnoticed new report released by the Federal Trade Commission, its sixth report on Marketing Violent Entertainment to Children.

One final thing: Regulation of the electronic media began “when the Titanic sank and the United States government seized control of the airwaves.” Though that is another story,* it illustrates an important point: A government that fails to act in the face of actual danger is useless, whereas a government that overreacts is dangerous.

* See Thomas G. Krattenmaker & Lucas A. Powe Jr., Regulating Broadcast Programming (1994), pp. 5-7.

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