Rating & labeling entertainment

Friday, September 13, 2002

For years, parents and citizen groups have said they’re frustrated by what they characterize as declining morality and good taste in the nation’s music, films, television programs and other entertainment media. Citing concerns about the effects of these media on children, many parents have called for legislation to control sexual and violent content.

For now, the industry response to government mandates and parental demands has been to create ratings, usually a system of letters and numbers to indicate the presence of any adult-oriented content in an entertainment product.

Rating systems, supporters say, offer parents some of the tools they need to monitor what their children listen to and watch. The need for such information, they say, overrides some First Amendment concerns.

But opponents say ratings not only threaten free speech by compelling the entertainment industry to label movies, television shows, records and video games with content advisories and symbols but also are so subjective and insubstantial as to be misleading.

Free-speech advocates also warn that people should not be fooled by the fact that the rating systems currently used are considered “voluntary.” A “voluntary” program may seem to come from willing industry participants, critics say, but that compliance is usually due to significant pressure from lawmakers.

Movie ratings
Introduced more than 30 years ago, the Motion Picture Association of America’s rating system — the leading code denoting movie content — continues to generate debate. While free-speech advocates, filmmakers, critics and rating supporters disagree on the effectiveness and constitutionality of the system, they all agree: The MPAA ratings serve as the standard against which all other rating programs are measured.

Soon after the first nickelodeons opened at the turn of the century, state and local officials formed censorship boards to monitor film content. In response, a group of film producers formed the National Board of Censorship in 1909 to screen their own films and to pre-emptively delete those scenes that might be deemed unsuitable by public officials.

The U.S. Supreme Court didn’t help stave off censorship. In 1915, the Court ruled in Mutual Film Corp. v. Industrial Commission of Ohio that movies were “a business pure and simple” and, thus, not due the kind of constitutional protections books and newspapers enjoyed.

In 1921, the industry formed the Motion Picture Producers and Distributors of America (later renamed the Motion Picture Association of America) and named former postmaster general Will Hays as its director. The organization, better known as the Hays Office, drafted a list of 11 “Don’ts” and 25 “Be Carefuls.”

Even stricter censorship surfaced in the 1930s when a group of Roman Catholic bishops formed the National Legion of Decency to rate movies on their own. Movies deemed to be immoral faced Catholic boycotts.

Not to be outdone, Hays reconstructed his office and drafted the even stricter Production Code. Code violations brought fines as high as $25,000 per film.

A 1952 Supreme Court decision in Burstyn v. Wilson — called the “Miracle” case after the Roberto Rossellini film — reversed the Court’s 1915 ruling. The Court ruled that the motion picture was, in fact, an important communication medium and worthy of First Amendment protection. But the Production Code remained in effect through the 1960s.

Jack Valenti says on the MPAA Web site that when he became the group’s president in 1966, the “stern, forbidding catalogue of ‘Dos and Don’ts’ [bore] the odious smell of censorship.” At the same time, he says, a new kind of movie, “frank and open,” was beginning to surface.

Worried that states and cities would form censorship boards, Valenti said the MPAA worked with other film industry groups to come up with a voluntary, but consistent, system to rate the content of films. The MPAA introduced the rating system on Nov. 1, 1968.

In his 1972 book The Movie Rating Game, Stephen Farber wrote that the MPAA rating system was designed to give filmmakers “unprecedented creative freedom, while at the same time maintaining a system of ‘self-regulation’ that would ease the pressures for some forms of government classification.”

Farber told the Freedom Forum for a 1998 publication, “The Rating Game,” that the system quickly degenerated into a censoring tool. Although the rating system is a voluntary one, Farber said studios are forced to get the ratings because most theater owners won’t show unrated or NC-17 films, claiming that many patrons refuse to see such movies.

“In theory, it’s not supposed to be censorship,” said Farber. “It’s just supposed to be advising people of the content. I don’t see anything wrong with that. It all sounds very inoffensive.”

Farber said problems with the ratings began to develop as studios pushed filmmakers to keep their work within a certain rating category.

“Once you give it a rating category, there is a lot of pressure to move it into a less restrictive category” particularly from an NC-17 to an R, he said. “That’s when the censorship pressures come.”

Syndicated film critic Michael Medved disagreed, saying Valenti reworked the ratings in 1968 in response to a new wave of filmmaking, sparked by the sexuality of “Blow Up” and the frank language in “Who’s Afraid of Virginia Woolf?”

“If you take a look at what’s happened since the new rating system was instituted, there is a great deal more flexibility than with the old Production Code,” Medved said. “For better or worse.”

Music labels
When the Recording Industry Association of America launched its parental advisory program in 1985, officials said they were responding to public demands to better inform listeners of the subject matter of music lyrics.

The labels — voluntarily placed by recording companies on music they deem too explicit for children — were designed, in part, to head off threats of even tougher government restrictions.

But some critics say the recording industry isn’t doing enough.

In December 2001, the Federal Trade Commission released a report criticizing record companies for marketing albums with explicit lyrics to children. The industry, the report said, had made progress with using parental advisory labels on albums and in advertising, but companies continued to promote music with explicit content in the most popular teen venues on television, radio and the Internet and in print.

The FTC criticized the music industry again in a June 2002 report, saying recording companies continued to advertise albums with explicit content on TV shows and in magazines popular with teens.

Earlier, in July 2001, the music industry was singled out in two congressional committee hearings examining the entertainment industry’s efforts to curb minors’ exposure to violent and sexually explicit material.

Lawmakers took the industry to task again during an October 2002 congressional committee hearing. Committee members criticized the industry for not using more descriptive parental advisory labels that indicate whether recordings contain sexual or violent references or strong language. Legislators, however, praised music publisher BMG for its June 2002 decision to start specifying whether its music is labeled because of violent or sexual content or strong language.

Meanwhile, in June 2001, a Maryland woman sued Atlantic Records, claiming the company engaged in “deceptive and misleading practices” under the state’s Consumer Protection Act by failing to place a parental advisory sticker on a rap CD.

Barbara Wyatt, president of the Parents Music Resource Center, the group that sparked the first Senate hearing on music labeling in 1985 under the leadership of Tipper Gore and other wives of senators, said in 1998 that she considered the RIAA program one of “standardized labels but no standards.”

Specifically, Wyatt and others said that the voluntary system enables each recording company to make its own decisions about which recordings need the sticker. They said the stickers, which read PARENTAL ADVISORY: EXPLICIT CONTENT, offer little information about the recording.

Wyatt’s concerns have been echoed in lawmakers’ demands that the industry provide more descriptive labels.

The industry has instituted a number of revisions to its parental advisory program since it was first introduced. The latest revisions, which took effect April 1, 2002, included the introduction of an “Edited Version” label, which is used to identify modified versions of albums that bear parental advisory labels. The new guidelines also introduced an “Edited Version Also Available” label, which can be used in print advertising to alert consumers that a modified version of an album is available.

The revisions also extended existing guidelines for print advertising to radio and TV ads, requiring all ads for any recording bearing a parental advisory label to indicate that the album contains explicit content.

Critics, however, still say the labels should provide more information.

But industry representatives say the current system gives parents enough information without violating the right to free expression.

“This is the balance that the industry tried to achieve between responsibility to the community and to parents and extremely strong feelings in the creative community about this issue,” RIAA President and CEO Hilary Rosen was quoted by the Associated Press as saying during the October 2002 congressional committee hearing.

Industry representatives also object to critics’ claims that they shouldn’t advertise explicit albums in teen magazines. After the FTC released its June 2002 report, RIAA spokeswoman Amy Weiss said that because the parental advisory program is not age-specific, ads for albums with explicit content can appear in any publication, The Washington Post reported.

Critics, however, disagree.

“The RIAA’s excuse, that their parental advisory system does not include age-based ratings, still sounds like a broken record,” said Sen. Joseph Lieberman, D-Conn., a frequent critic of entertainment media, in a statement. “Their one-size-fits-all warning label is hardly a justification for their irresponsible marketing practices.”

Dave Marsh, former writer for Rolling Stone and author of 50 Ways to Fight Censorship, in 1998 described the labels as “an extremely effective tool, as long as you understand that they are a tool to censor.”

“Rated records don’t get into stores and have to get bowdlerized,” Marsh said. “Plus the industry is continually under attack by legislators and other moralists for the simple reason that the labels are a constructive guilty plea.”

Grading the tube
Also coming under fire from parents and citizen groups have been the TV Parental Guidelines, which were introduced by the television industry in January 1997, revised a year later to include more content labeling and finally approved by the Federal Communications Commission in March 1998.

The technology of the V-chip makes it possible for television networks to code their programs so that parents can block reception of programs rated for certain levels of violent and sexual content.

The Telecommunications Act of 1996 states that TV networks must rate their programs in a way similar to the system used by the motion-picture industry. Early in 1997, television executives announced a system comprising six broad categories: TV-Y, suitable for all children; TV-Y7, geared for children age 7 and above; TV-G, suitable for everyone; TV-PG, parental guidance suggested; TV-14, parents strongly cautioned; and TV-MA, designed for mature audiences.

A program’s rating may also include one or more of the following content labels: D, suggestive dialogue; L, coarse language; S, sexual situations; V, violence; FV, fantasy violence.

First Amendment concerns arise because such rating schemes can be seen as a kind of government regulation of what TV networks choose to show, as well as interference with what people can watch. Critics say it is not clear that the government had a compelling interest in imposing this system, or whether less-burdensome alternatives might exist. Those are the tests that courts typically apply when asked to decide whether “protectionist” laws are constitutional.

The National Association of Broadcasters is against government attempts to regulate broadcasting. The NAB Web site states that legislative attempts to regulate the industry “undermine the real voluntary efforts that broadcasters have made with the television rating system and the V-Chip. Equally important, the mere threat of future governmental action can have a chilling effect on free speech. This ‘soft censorship’ can be just as damaging to the First Amendment as heavy handed ‘hard censorship.’”

The American Civil Liberties Union opposes the V-chip, claiming that it is unnecessary and that other available devices do not require government intervention: channel “lockboxes” for cable TV; built-in channel guards that allow parents to block certain channels for specified periods; and new products such as the TeleCommander and the TV Guardian, which allow parents to choose what their children watch. Furthermore, no substantive link between violent imagery and violent behavior has been proven.

Although the Supreme Court has not ruled on the TV-violence issue, in its 1968 decision in Interstate Circuit v. Dallas, the Court struck down as unconstitutionally vague an ordinance authorizing the classification of certain films as “not suitable for young persons” where the standard was defined as “describing or portraying brutality, criminal violence or depravity in such a manner as to … incite or encourage crime or delinquency on the part of young persons.”

Rating video games
The rating debate also has expanded into the video-game market where several industry associations have developed their own rating systems. Gail Markel of the Interactive Digital Software Association said her group used the MPAA ratings as its starting point to establish the Entertainment Software Rating Board in 1994.

In addition to six letter ratings ranging from EC for Early Childhood to AO for Adults Only, the board uses about 20 “content descriptors” to show if a particular game has violence, strong language, sexual themes or other potentially offensive content.

Another organization, the American Amusement Machine Association, later drafted ratings for coin-operated arcade machines.

“Ratings aren’t about censorship,” Markel said in 1998. They are “about providing information so parents and consumers can do their jobs. I think the industry is in danger if it can’t show it provides that information.”

Recent legislation
In recent years, Congress has considered, but failed to pass, several measures targeting the entertainment industry.

A sample of some of the bills introduced in the 107th Congress:

  • Media Marketing Accountability Act of 2001 (S. 792/H.R. 2246)
  • Children’s Protection from Violent Programming Act (S. 341/H.R. 1005)
  • Children’s Protection Act of 2001 (S. 124)
  • Commission to Study the Culture of Violence in America Act (H.R. 655)
  • 21st Century Media Responsibility Act of 2001 (H.R. 1916)All died in committee with the end of the congressional session. Congress has continued its efforts by introducing similar bills in every subsequent session. The 109th Congress, for instance, introduced:
  • “Children and Media Research Advancement Act” (S. 579, H.R. 4124, S. 1902) to authorize funding to establish a program on children and the media that would study the role and impact of electronic media in the development of children.
  • “Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005” (S. 616), a bill to inform the American public and to protect children from increasing depictions of indecent and gratuitous and excessive violent material on television.
  • “Kid Friendly TV Programming Act of 2005” (S. 946), a bill to require multi-channel video programming distributors to provide a kid-friendly tier of programming.
  • “Family Entertainment Protection Act” (S. 2126) to limit the exposure of children to violent video games.
  • H.R. 5345, introduced on May 10, 2006, to require ratings labels on video games and to prohibit the sales and rentals of adult-rated video games to minors.Entertainment-industry representatives have criticized lawmakers’ efforts to regulate the industry.
    In a 2005 Wall Street Journal piece, Doug Lowenstein, president of the Entertainment Software Association, likened the criticism of videogames to fears in the 1950s that rock ‘n’ roll would destroy society’s moral fiber. A trade group for video-game publishers, ESA has successfully mounted legal challenges to a number of state laws concerning the sale and rental of violent video games to minors.
    “This is a bedrock First Amendment issue,” Lowenstein said in an April 2006 interview posted on video-game news Web sites. “Can government impose laws that regulate content? Because if you accept the principle that it can ban a violent game, then it can come along and ban any kind of content it doesn’t like – games that are pro-war, perhaps, or games that promote homosexuality or certain religious beliefs. So our saying that we’re not going to permit government to regulate the sale of our product based on its content is a principle that is absolutely critical to constitutional and creative freedom. That’s why it’s a big deal.”
    On the state and local legislative front, video games have come increasingly under fire.
    Tennessee approved the first measure targeting video games. The 21st Century Media Market Responsibility Act would have imposed a statewide rating system for video games and carried criminal penalties for violators. After the state attorney general advised that the measure would be unconstitutional, the bill’s sponsor revised it to add violent games and computer software programs to the state’s definition of obscenity. The revised measure became law in June 2000.
    In September 2000, Indianapolis enacted the first law prohibiting juveniles from playing any arcade video games deemed “harmful to minors.” A $200-a-day-per-violation fine was imposed. When video-game manufacturers challenged the law, a federal district judge found that the First Amendment did not bar states from restricting children’s access to video games that the state considered harmful to them. However, the 7th U.S. Circuit Court of Appeals overturned the judge’s ruling and stayed operation of the law while the challenge is pending.
    This decision, American Amusement Machine Association. v. Kendrick, 244 F.3d 572 (7th Cir. 2001), has become the precedential case regarding video-game litigation. A number of points expressed by Judge Richard Posner in Kendrick have recurred in subsequent cases. Posner wrote that in order for a government to enact an ordinance that regulates speech on grounds not authorized by the First Amendment, the grounds must be compelling and not merely plausible. He also expressed doubt that a government could have a compelling interest in preventing minors from playing violent video games; that the research in this area did not compel a conclusion that violent video games increased aggressive behavior in minors; and that the ordinance’s conjectural benefits were outweighed by First Amendment concerns.
    Many First Amendment advocates say there is no legal precedent for measures that target violent media. But supporters of such legislation disagree, saying the Supreme Court upheld a “harmful to minors” standard in its decision in Ginsberg v. New York. In that 1968 decision, the justices validated a New York law prohibiting the distribution to children of materials deemed to be obscene to minors. The standard in this case, however, has been rejected by all the recent courts that have decided violent video-game cases because the speech in Ginsburg was not constitutionally protected speech. Video games have been deemed worthy of First Amendment protection.
    But free-speech advocates say the courts have been unwilling to approve a governmental authority to regulate violent expression as different from other protected speech.
    As far back as 1948, the Supreme Court determined that violent publications deserve full First Amendment protection. In that case, Winters v. New York, the justices invalidated a state law curbing the publication of magazines “devoted principally to criminal news and stories of bloodshed, lust or crime.”
    “What is one man’s amusement, teaches another’s doctrine,” the Court wrote. “Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.”
    The high court has not only upheld violent content as protected speech, it has denounced past government efforts to regulate such speech through censorship boards or labeling systems.
    On the same day it announced its decision in Ginsberg, the Court declared in Interstate Circuit v. Dallas that an ordinance setting up a city’s censorship board was unconstitutionally vague, since it lacked “narrowly drawn, reasonable and definite standards for the officials to follow.”
    Rating programs
    A summary. Also see the Parental Media Guide.
    The Motion Picture Association of America’s rating board
    A voluntary program started in 1968, the Classification and Rating Administration board consists of about a dozen anonymous parents in California who view as many as 500 films each year.
    After viewing a movie, the board determines its rating — G, PG, PG-13, R and NC-17 — through majority vote.
    Producers or distributors displeased with a rating may appeal the decision to a 14- to 18-member appeals board consisting of film industry personnel and executives. A two-thirds vote of the board is required to overturn the rating board’s decision.
    Producers or distributors may choose to distribute movies without ratings or with their own ratings as long as they don’t use ones similar to the MPAA’s registered trademarks.
    According to MPAA President Jack Valenti, these are the general guidelines the rating board follows:

    • G: General Audiences. All ages admitted. Contains nothing in theme, language, violence, etc. that would be offensive to parents whose younger children see the film. Some snippets of language may go beyond polite conversation, but they are common expressions. No stronger words are present. Violence is at a minimum. Nudity, sex scenes and drug use are not present.
    • PG: Parental Guidance Suggested. Some material may not be suitable for children. May contain adult themes, some profanity, violence or brief nudity. But these elements are not deemed so intense as to require that parents be strongly cautioned. Contains no drug-use scenes.
    • PG-13: Parents Strongly Cautioned. Some material may be inappropriate for children under 13. Contains more intensity than a PG film in theme, violence, nudity, sex, language or other elements, but not intense enough to require an R. Any drug-use content usually requires at least a PG-13. If nudity is sexual or violence is rough or persistent, the film usually gets an R. With regard to profanity, the board pays particular attention to one of the harsher sexually derived words. One use as an expletive requires a PG-13; more than one expletive use or any use in a sexual context requires an R, though these films can be rated less severely by special vote.
    • R: Restricted. Under 17 requires accompanying parent or adult guardian. Contains adult material. May include hard language, graphic violence, sensual nudity, drug abuse or some combination of those.
    • NC-17: No one 17 and under admitted. No children can be admitted. Contains patently adult material, such as violence, sex, drug abuse or aberrational behavior that most parents would consider off-limits to children.

    The Recording Industry Association of America’s Parental Advisory Program
    The RIAA administers a voluntary Parental Advisory Program and offers guidelines to music companies for deciding which recordings require the parental advisory logo. If a member company decides to place the logo on a recording, it’s required to use the standard black-and-white image reading PARENTAL ADVISORY: EXPLICIT CONTENT. The nonremovable logo, smaller than 1-inch square, must be placed under the shrinkwrap and on the front of the packaging of the album.
    If an edited version of an album bearing a parental advisory label is released, it should include an “Edited Version” label displayed either on the front of the CD (on the shrinkwrap or on the album cover itself) or on its top spine.
    The RIAA also recommends that all consumer advertisements for an album bearing the parental advisory logo indicate that the recording contains explicit content. If an edited version of the album exists, the ads should include an “Edited Version Also Available” label.
    The RIAA also recommends that online retailers prominently display the parental advisory logo when shoppers are reviewing or buying recordings bearing the label.
    The TV Parental Guidelines
    The TV Parental Guidelines Monitoring Board, composed of representatives from the television industry, is responsible for making sure there is as much uniformity and consistency in applying the guidelines as possible.
    The ratings:

    • TV-Y — suitable for all children.
    • TV-Y7 — geared for children age 7 and above; programs in this category that contain intense fantasy violence are labeled TV-Y7-FV.
    • TV-G — suitable for everyone; parents may let children watch unattended.
    • TV-PG — parental guidance suggested; program contains material that some parents may find unsuitable for younger children and may contain one or more of the following: moderate violence (V), sexual situations (S), infrequent coarse language (L) or suggestive dialogue (D).
    • TV-14 — parents strongly cautioned; program contains material some parents may find unsuitable for children under age 14 and includes one or more of the following: strong coarse language (L), intense violence (V), intensely suggestive conversation (D) or intense sexual situations (S).
    • TV-MA — designed for mature audiences; program contains crude language (L), graphic violence (V) and/or explicit sexual content (S).

    The Entertainment Software Rating Board
    The Entertainment Software Rating Board, created by the Interactive Digital Software Association, assigns letter ratings and content descriptors for games for personal computers, home video systems and the Internet. Each game is reviewed by three specially trained raters. An ESRB staff member examines the raters findings to determine the product’s final rating.
    The rating categories are:

    • EC — Early Childhood — content suitable for ages 3 and older.
    • E — Everyone — content suitable for ages 6 and older.
    • T — Teen — content suitable for ages 13 and older.
    • M — Mature — content suitable for ages 17 and older.
    • AO — Adults Only — content suitable only for adults.
    • RP — Rating Pending.

    The content descriptors include: comic mischief, mild violence, violence, suggestive themes, mature sexual themes, strong sexual content, mild language, strong language, blood and gore, use of drugs, informational and edutainment.
    Coin-Operated Video Game Parental Advisory System
    Devised by the American Amusement Machine Association, these ratings include “suitable for all ages” and mild or strong marks in these categories: animated violence, lifelike violence, sexual content and language.
    All new coin-operated video games carry this Parental Advisory Disclosure Message either in the artwork of the game or on a color-coded sticker on the machine.
    First Amendment Center legal researcher Bill Kenworthy, assistant news editor Eugenia Harris and former staff writer Phil Taylor contributed to this report.
    Updated May 2006