Media industry should take FCC report seriously

Friday, April 27, 2007

Kevin Saunders

The impact of the just-released Federal Communications Commission’s report will depend on the media industry’s understanding of what the agency can do, should the industry fail to act.

At the outset, the suggested rule that consumers be allowed to select individual channels in the cable packages they purchase seems unproblematic. This should be particularly so, if the eventual rule is not content-specific. If the consumer can select in or out of any channel, there is no regulation of content. Such a rule is simply consumer protection.

Pacifica precedent
Admittedly, a limitation on the broadcast of violent material presents a more difficult issue. Even so, the FCC has the authority to regulate the broadcast media to an extent that would be unacceptable for other media. Specifically, it is clear that the FCC can require the time channeling of broadcasts of sexually indecent material into hours when children are less likely to be in the audience. That principle was established in Federal Communications Commission v. Pacifica Foundation (1978) and in the culmination of a series of later cases the U.S. Circuit Court of Appeals for the District of Columbia determined that those hours are between 10 p.m. and 6 a.m. The issue raised by the recent FCC report is whether the same power extends to the channeling into those same hours of material that is objectionable for its violence, rather than its sexual content.

Much of the justification for the Pacifica decision applies as well to violence as to sex. The Court justified the lesser First Amendment protection for the broadcast media because of that media’s uniquely pervasive presence, the fact that material broadcast over the air confronts the individual not only in public but in the privacy of his or her own home, and the accessibility of the broadcast media to children, even to children too young to read. Those factors do not depend on the particular nature of the objectionable material.

One of the issues the Pacifica Court faced was what sort of material was included in the FCC’s statutory authority to limit indecent material. The broadcaster argued that the power was limited to obscene material, but the Court said it extended to material not in conformance with “accepted standards of morality.” It would seem that material could then be indecent because of its violent nature; that is, material may not conform to accepted standards of morality by being excessively violent, just as well as by being excessively sexual.

Impact of TV violence
The real legal issue here is whether the constitutionality of limiting sexual content — not just the statutory authority to do so — carries over to violent material. If the justification is based on harm to the youthful viewer, it speaks far more strongly to violent material than sexual material. Despite the uproar over Janet Jackson’s breast, it is difficult to demonstrate any psychological harm to viewers. The same may be said for the comments of Howard Stern. However distasteful they may be, there is no demonstration of actual harm.

The impact of violent material, on the other hand, has been studied for decades. Despite the reluctance of courts to recognize that impact, all the major health organizations concerned with the physical and psychological well-being of children have signed on to the position that media violence leads to real-world violence.

The FCC has, in its report, tapped into a large reservoir of social-science data. While courts have had a difficult time accepting, and from the statements of some judges perhaps understanding, the statistical evidence for this effect, there are more recent developments that serve to add strength. New studies in the development of adolescent brains show a difference in functioning in the region associated with inhibition and judgment for children exposed to violent media. A concern for the healthy development of children certainly justifies the FCC’s inclination, whatever the legal principles involved may be.

The counter argument to the science would be that the ability to channel sex is not based on harm but on the fact that obscene material does not enjoy constitutional protection. Because of that denial of protection, lesser levels of sexual depiction fall outside the protection of the First Amendment for broadcast purposes. That may or may not be the best interpretation of Pacifica, since the Court did use language that was broader.

Constitutionality of regulating media violence
Even if Pacifica is limited to material that is similar in content to obscenity, although falling short of obscenity in its degree of prurient appeal and offensiveness, that is still not the end of the argument that Pacifica may allow the FCC to limit violence. It has been argued that the concept of obscenity should reach violent material and not be limited to sex, at least when it is made available to children.

The focus of obscenity on sex seems to have been the product of general Victorian-era concerns, and the concept in constitutionally important eras was broad enough to include violence. This argument was accepted by the federal district court in an Indianapolis case involving limits on children’s access to violent video games. It was, however, later rejected by the 7th U.S. Circuit Court of Appeals, and that appellate opinion has led other courts to follow suit.

Until the Supreme Court rules on the issue, it is still viable. There is a Supreme Court case sometimes cited for the proposition that violent material cannot be regulated. Winters v. New York (1948) struck down a New York criminal statute aimed at material that amassed tales of bloodshed and crime. Though the statute was declared unconstitutional, that was because the statute was unconstitutionally vague. The Court specifically warned against taking its opinion as holding that violence could never be restricted, although recognizing that the material went beyond what had traditionally been considered indecent. That leaves open the possibility that adequately defined violence could be limited, particularly in a non-criminal context. In the broadcast context, the Court may be willing to allow the FCC to require that violent material be channeled into hours where children are less likely to be exposed.

Television violence has been a matter of public concern for decades. Years ago it was estimated that a child who watches television for two to four hours a day would witness 8,000 murders and 100,000 other acts of violence by the time he or she was 12. It defies common sense, as well as psychological studies, to believe that this experience does not have an impact. It is refreshing to see the FCC’s willingness finally to perhaps be more direct in doing something to address this problem.

Kevin W. Saunders is senior associate dean and professor at Michigan State University College of Law. He is the author of Violence as Obscenity and Saving Our Children from the First Amendment.

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