Insidious censorship: equating violence, indecency

Thursday, March 1, 2007

On Feb. 14, the staff at the Federal Communications Commission sent a valentine to members of Congress seeking to censor violence on television. Hatched in the bowels of the FCC, this report argues that it would not violate the Constitution to equate violence with indecency, which the FCC already has the power to regulate. All it would take is an act of Congress giving the FCC the power to move forward with its censorship agenda.

Some may argue that since the Democrats control the Congress, the First Amendment is safe from such intrusions. The fact is, however, that the leading legislator supporting this power grab by the FCC is Sen. Jay Rockefeller, D-W.Va. He plans to lead a bipartisan coalition that pushed for similar legislation in 2005.

Rockefeller’s legislation is not the first to attempt to equate violence with obscenity in an effort to regulate it. Indianapolis attempted to limit access to violent video games by minors in arcades. The ordinance defined “graphic violence” in two ways. First, it bracketed “graphic violence” with obscenity arguing that it caters to a “morbid interest,” is “patently offensive to prevailing standards in the adult community as a whole,” and “lacks serious literary, artistic, political or scientific value.” Secondly, the ordinance defined “graphic violence” as “amputation, decapitation, dismemberment, bloodshed, mutilation, maiming, or disfigurement.” A local judge approved implementation of the Indianapolis ordinance.

The case was appealed to the 7th U.S. Circuit Court of Appeals in 2001. Judge Richard Posner issued the unanimous ruling of the court in American Amusement Machine Association v. Kendrick, in which he argued that “no showing has been made that games of the sort found in the record of this case” induce violence. “The grounds” for such an ordinance “must be compelling,” not merely plausible, Posner said, because “[c]hildren have First Amendment rights.” Posner compared the video games to literature containing graphic violence and concluded that video games, despite their interactive nature, were still stories that taught lessons.

Does televised violence induce actual violence? If it does, that might constitute a harm significant enough to trump First Amendment rights. However, the most recent evidence does not support the thesis.

In 2000 Prof. Jonathan Freedman of the University of Toronto, who has studied violence and the media for many years, concluded that none of the 200 or so recent violence studies support a causal relationship between violence in programming and violence in society. Richard Rhodes, a Pulitzer Prize-winning scientist, told ABC News: “There is no good evidence that watching mock violence in the media either causes or even influences people to become violent” (Broadcasting and Cable, Oct. 30, 2000, p. 82). Jib Fowles’ 2000 study of violence on television found it often provided a catharsis that reduces violence. President Bush’s surgeon general concluded that there was “insufficient evidence to suggest that video games cause long-term aggressive behavior.” In April 2004, the Journal of the American Medical Association summarized available research and agreed with the surgeon general. It also noted that while video-game participation has increased, “youth violence has been decreasing.” In June 2005, Prof. Dmitri Williams published a study in Communication Monographs that examined 213 video-game players after a month of study. He found no increase in aggressiveness among the participants.

For years we have seen international comparisons that demonstrate this point. While Japanese media, and particularly their video games, are pervaded by violence, Japan has much lower crime rates than the United States. The same is true of Canada. What America has that Japan and Canada lack is a high level of poverty, excessive gun ownership, drug abuse, broken homes, illegitimacy and gangs. Wouldn’t it be smarter to go after the real causes of violence in our society rather than seeking a scapegoat in televised violence?

Because of this data, the courts have found that violent programming cannot be regulated without creating a chilling effect on its content. Furthermore, since violence is very difficult to define, it presents regulators with the opportunity to censor in an arbitrary and capricious manner, which is also unconstitutional.

Prof. Karen Sternheimer, a sociologist at the University of Southern California and a researcher at the Center for Media Literacy, complained that violence often conflates “programs as diverse as cartoon and police dramas with video games and action movies” (“Blaming Television and Movies Is Easy and Wrong,” Los Angeles Times (Feb. 4, 2001), p. M5). This procedure, claims Sternheimer, negates “the importance of context and meaning.”

Thus, until a viable, legally tenable definition of violence can be found, regulating it may prove impossible in light of the arbitrary and capricious standard.

Craig R. Smith is director of the Center for First Amendment Studies at California State University – Long Beach. His latest book is The Four Freedoms of the First Amendment.