Lawmakers blast marketing efforts of entertainment industry

Thursday, September 14, 2000

Sen. John McCain

WASHINGTON — Members of Congress sharply attacked the entertainment industry yesterday for allowing its quest for profits to overtake good corporate citizenship. The lawmakers accused the industry of singling out children in the marketing of products with violent content that the businesses themselves rate as adult-only.

At a five-hour hearing before the Senate Commerce Committee, several lawmakers threatened to take legislative action if the industry fails to move voluntarily to change the marketing practices within six months.

The hearing was held in response to a Federal Trade Commission report earlier this week that criticized companies in the music, movie and video game industries for “routinely” marketing to children “the very products that have the industries' own parental warnings or ratings with age restrictions due to their violent content.”

Although representatives of the music and video game industries did appear before the Senate panel to respond to the FTC report, movie industry officials were notably absent, a fact that Sen. John McCain, R-Ariz., called attention to early and often during the hearing.

Jack Valenti

Commenting on the “thundering silence” from motion picture executives, the Commerce Committee chairman told the standing-room-only crowd, “By some uncanny coincidence, every single studio executive was either out of the country or unavailable. I can only conclude the industry was too ashamed of, or unable to defend, their marketing practices.”

The industry did send its Washington lobbyist, Jack Valenti, to testify on its behalf. He insisted the executives did have scheduling conflicts that made it impossible for them to appear.

“The fact that these people are not here is not because they're duckin' and runnin' because I told them that's impossible to do,” Valenti said. “They literally had other things on their schedule that were impossible to erase.”

McCain said he would call another hearing in two weeks and would expect all the motion picture industry executives to appear at that time.

Valenti said he would travel immediately to California to confer with the studios and the National Association of Theater Owners to address the FTC recommendations that entertainment companies not target the very young for their advertising, that the ratings enforcement be strengthened at the retail level and that more information be offered to parents on the rating systems.

The fact that a president, the entire membership of the House of Representatives and one-third of the U.S. Senate will be elected in less than two months added an inescapable political aroma to the air.

“I've been in politics all my life,” Valenti commented near the end of the hearing. “I know when you trash the entertainment industry, your poll numbers go up.”

The first two hours of the hearing were devoted to opening statements from McCain and the other committee members and to testimony from various senators and members of Congress who had asked to make remarks. In all, nearly two dozen senators and House members spoke or included comments in the hearing record condemning the marketing practices. Sen. Joseph Lieberman, D-Conn., the Democratic vice presidential nominee, was one of the witnesses, as was Lynne Cheney, former head of the National Endowment for the Humanities and wife of former Wyoming Congressman Richard Cheney, the Republican vice presidential nominee.

Sen. Joseph Lieberman

McCain, who himself ran for president against eventual GOP standard-bearer George W. Bush, also used the forum to boost his pet legislative project, campaign-finance legislation to limit special interest money. He noted that the movie industry has given some $18 million, mostly in soft money, to the two parties.

McCain didn't point out that Hollywood money goes primarily to Democrats, but Lynne Cheney did, observing that one of the no-show movie executives, Harvey Weinstein, chairman of Miramax, would be hosting a large Democratic fund-raiser today in New York on behalf of the entertainment industry.

“When these corporations do things so shameful … shouldn't people of stature hold them to account?” Cheney said of the industry marketing practices. “I note two people of stature — Vice President Gore and Senator Lieberman — are attending a fund-raising extravaganza that Mr. Weinstein is hosting on Thursday, and I urge them to deliver the message.”

“Mr. Weinstein has time to attend a fund-raiser; he does not have time to come here,” McCain said.

A recurring comment throughout the hearing was that the entertainment companies should be given some time to clean up their own act before the FTC or Congress moves against them. One possibility for action would be enforcing the existing FTC regulations against deceptive or unfair acts and trade practices. FTC Chairman Robert Pitofsky said he had asked commission lawyers for an opinion on whether the FTC could bring a legal challenge to marketing that is inconsistent with the industry trade associations' own rating systems.

“If it turns out that self-regulation does not solve these problems and that current law is inadequate, legislation, respectful of the First Amendment, should be considered,” Pitofsky told the panel.

Lynne Cheney

Meanwhile, the Federal Communications Commission announced Sept. 12 that it would examine whether broadcasters were promoting inappropriate programming when children were likely to be watching.

At yesterday's hearing, six months seemed to be the consensus on how long Congress would be willing to wait for some decisive voluntary action before considering a move against the entertainment industry. Lawmakers insisted, however, that what they were proposing was not censorship or in any way a violation of the First Amendment since they were focusing on marketing practices, not product content.

“Censorship is a strong word, usually reserved for those occasions when the government tries to influence the content of ideas, particularly unpopular ideas,” said Rep. Edward Markey, D-Mass. “It has never been the law of the land, nor will it ever be, that those engaged in the sale of a product that harms children will have an unfettered right to cause that harm. Commercial speech is protected by the Constitution, but not absolutely, as though there were no competing public good.”

“The entertainment industry must stop hiding behind the shibboleth of censorship, claiming any form of restraint, even self-imposed, is nothing more than a capitulation to the puritanical,” said Sen. Orrin Hatch, R-Utah, chairman of the Senate Judiciary Committee. “Too often, the outrageous and shocking are little more than a cover for a lack of creativity and originality. But these artists will continue to flourish until the industry stops pretending that the permanent coarsening of entertainment is the only way to pay homage to the First Amendment.”

“Violence directed at kids is obscenity, and that is not protected by the First Amendment,” said Rep. Henry Hyde, R-Ill., chairman of the House Judiciary Committee.

However, two representatives of the music industry did not appear to be as comfortable as the lawmakers were over the distinction between marketing practices and content.

“Unlike the visual media, the record business is being asked to categorize and label groups of words. For the same reason there is no ratings system for books, or for that matter congressional testimony, with one narrow exception, it is virtually impossible to rate words,” said Danny Goldberg, president and CEO of Artemis Records.

The exception referred to by Goldberg relates to the so-called “seven dirty words” that record companies use, along with other curse words, to decide whether a “parental advisory” sticker should be placed on a recording. Goldberg said he had no problem making the actual lyrics on recordings available at point of sale so that parents can see what their children are buying, but he cautioned that not all parents would agree over what is or is not objectionable.

“We in the media do share in shaping our nation's culture. We may not change what people think, but we create a vernacular for those thoughts. We as an industry must recognize our role and play it responsibly,” said Strauss Zelnick, president and CEO of BMG Entertainment. “None of this means, however, that the government should serve as the censor of our art and the regulator of our speech. Yes, violence is a terrible problem. But government interference with free expression is a 'cure' that is worse than the disease.”

Douglas Lowenstein, president of the Interactive Digital Games Association, whose industry was singled out by the FTC as having the best system of voluntary ratings, said his companies categorically reject some of the FTC findings involving advertising, particularly suggestions that it is inappropriate for games with a mature content to be promoted in publications that have some younger readers.

“It's easy to lose sight of the fact, in all the rhetoric and political posturing, that video games are entertainment products for people of all ages, that they are constitutionally protected products and that at best, the scientific evidence linking them to harmful effects is weak and ambiguous, and at worst does not exist,” Lowenstein said.

Goldberg, Zelnick and another witness, Michael Eric Dyson, also cautioned the committee not to rush to judgment over the content of music lyrics they consider violent or obscene, since often the artists are expressing a reality that exists for many young people, especially those from African-American or Latino neighborhoods.

“Implicitly, there is a censorship that goes on when we begin to give the voice and the microphone to some and not to others,” Dyson said.

Also, he said, what is considered violent may be perceived differently among lawmakers than among others.

“The Duke, John Wayne, would not be brought before this committee” to justify violence in his films, Dyson said, “but Snoop Doggy Dogg would. Violence in John Wayne is acceptable; violence in Snoop Doggy Dogg is not.”

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