Senator defends entertainment-labeling bill as ‘citizenship,’ not censorship

Friday, September 3, 1999

After months of tossing around statistics designed to detail a growing connection between graphic entertainment and real-world violence, senators will return from the Labor Day recess next week prepared to craft measures to warn parents of undesirable content in television, movies, video games and music.

On the table is the Media Violence Labeling Act of 1999, a bill that, if passed, would lead to the development and enforcement of a system for labeling violent content in entertainment media.

While free-speech advocates contend such an exercise offends the First Amendment, senators such as Joe Lieberman, D-Conn., prefer to describe their efforts as recasting “questions of censorship to questions about citizenship, what responsibilities we all accept in return for the rights we all cherish.”

“The fact is, this is really a bill of last resort,” Lieberman press secretary Dan Gerstein said. “We have pleaded, cajoled, coaxed, whatever — you plug in the verb — with the entertainment industry to assert more self-control and self-restraint with their products.

“If the industry is going to continue to act as it does and not even acknowledge [that it has] responsibilities, we think legislation is a very reasonable alternative.”

But opponents say the Bill of Rights doesn't offer a “last resort” clause for the government on First Amendment issues.

“These labels are a panacea without any regard to constitutional issues,” said Robert Corn-Revere, a First Amendment attorney with the Media Institute. “They've tried to cast this as a voluntary effort, but what they are really saying is, 'Do it to yourself, or we'll pull the trigger.' “

If passed, the Media Violence Labeling Act would require various entertainment media — ranging from the video-game industry to the music industry to filmmakers to television — to jointly develop a common rating system within six months of the bill's passage.

According to Lieberman, such a rating system would have “to reflect the nature, context, intensity of violent content and age appropriateness of the media product.”

The bill would authorize the Federal Trade Commission to investigate whether a movie, video game, television show or sound recording was properly labeled. Violators could be fined up to $10,000 for each infraction.

Like the Federal Cigarette Labeling and Advertising Act it would amend, the bill would also prohibit the sale of labeled products to minors.

The FTC — responding to President Clinton's order for a federal inquiry into the marketing of violent entertainment — actually entered the picture several weeks before the bill made its appearance. Last month, FTC officials issued requests to both the Motion Picture Association of America and the Recording Industry Association of America for documents detailing how they conduct their rating and warning programs.

Also bolstering the bill's chances is the Aug. 5 release of a Senate Judiciary Committee report which concludes that, not only do television, video games, movies and music dominate the lives of children, but these media offer them “exceedingly violent” images. Such content, the report says, leads to real-world violence.

“The effect of media violence on our children is no longer open to debate,” according to the report.

The Judiciary Committee report, in part, urges Congress to begin a national media campaign to educate parents and to create a national clearinghouse on children and entertainment violence. It also recommends that the various industries rate their products using a universal system.

Predictions of doom for rating system

As MPAA president, Jack Valenti served as primary architect of that group's letter-rating system in the late 1960s. After 30 years, the MPAA code remains the premier rating tool in the entertainment industry.

But Valenti says that the senators' attempt to legislate and enforce a uniform labeling program across most of the entertainment spectrum won't work.

“There are very significant practical and artistic differences among these creative works,” Valenti said in a statement sent to the First Amendment Center. “Any attempt by the federal government to define such terms as 'intensity of violent content,' 'age appropriateness' and 'context' will collapse in failure because these concepts are elusive, swarming in subjectivity which always resists 'formula' solutions.”

Joan Bertin, executive director of the National Coalition Against Censorship, notes that the bill doesn't even define “violence.”

“Who is to become our 'violence czar' — somebody who is going to define how many dead bodies can appear on the screen?” Bertin asked. “What number is too much? How intense is too intense? How could you possibly create such rules?”

Bertin says such government-imposed ratings may effectively reduce the amount of violent material not out of sense of responsibility but of fear. Many filmmakers, she says, would likely reject even satirical films about violence, just to avoid a threat of having the work labeled “violent.”

“So you have a huge potential for the chilling of any kind of expression and any ideas relating to what might be called violence,” Bertin said. “I think this draft has taken essentially no notice of the obligations of the government under the First Amendment.”

Valenti agrees, saying the bill is flat-out unconstitutional.

“Such a proposal is an expensive exercise in futility,” he said. “Why? Because this scheme will be struck down by the first court that considers it. There is literally no precedent for such intrusions on creative works protected by the First Amendment.”

High court's take on violent media

Bill supporters disagree, saying the U.S. Supreme Court upheld a “harmful to minors” standard in its decision in Ginsberg v. New York. In that 1968 case, the justices validated a New York law prohibiting the distribution to minors of materials deemed to be obscene to minors.

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.

Corn-Revere said that, as far back as 1948, the U.S. 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.”

Lieberman's press secretary, Gerstein, says concerns about the bill's vagueness or unconstitutionality could be quickly addressed to stave off any court challenges. He says, too, that government officials could easily demonstrate a compelling interest for government to demand that the entertainment industry draft a universal rating program.

Several prominent Americans agree, including former presidents Gerald Ford and Jimmy Carter, retired Gens. Norman Schwarzkopf and Colin Powell, entertainers Steve Allen, Naomi Judd and Joan Van Ark and such political figures as William Bennett and Jack Kemp.

In a petition called “An Appeal to Hollywood,” the signatories demand that the entertainment industry adopt a voluntary code of conduct similar to the one the National Association of Broadcasters embraced for nearly 30 years.

“In recent years, several top entertainment executives have spoken out, laudably, on the need for minimum standards and, more recently, on the desirability of more family-friendly programming,” the statement reads. “But to effect real change, these individual expressions must be translated into a new, collective affirmation of social responsibility on the part of the media industry as a whole.”

Specifically, the signatories say the industry code should establish clear, minimum standards for each medium and drawing a line governing violent, sexual and degrading material, below which producers can be expected not to go.

Truth in labeling?

Gerstein denies that codes and ratings abridge speech, saying they merely provide “truth in labeling,” akin to health warnings affixed to tobacco and cigarette advertisements.

“It's a real, real stretch to say it's censorship,” Gerstein said. “It simply means that they are not to sell a product to children that they themselves openly acknowledge is not good for (children) or meant for them.”

Corn-Revere says comparing entertainment ratings with tobacco and cigarette warnings is “ludicrous.”

“A basic problem with this approach overall is that it bans the marketing of all media that are considered to have violent content unless they go through this FTC labeling process,” he said.

But James Hamilton, associate professor of public policy at Duke University, says it's fair, in some ways, to put entertainment in the same category as regulated substances.

“To the extent that entertainment products cause increases in aggression, fear or desensitization, they can harm both viewers and those affected by viewers,” Hamilton said. “The First Amendment makes it unlikely that liability law will be used to link content to harms created by media products, so [the] provision about content may be the next best legal alternative to alerting consumers, especially parents, to violent content.”

Some object to Hamilton's assertion that some entertainment content influences violent behavior.

“They are trying to create an appearance of a causal relationship,” Bertin said. “But where is the evidence?”

In “An Appeal to Reason” — a direct response to “An Appeal to Hollywood” — the National Coalition Against Censorship and other free-expression groups note that the National Research Council doesn't even recognize exposure to media violence among risk factors for violent behavior.

“The purported link between media violence and crime is further undermined by the fact that the crime rate is now the lowest it has been in recent decades,” the statement reads.

The “Appeal to Reason” contends that censorship would not reduce crime but states that it would stifle artists, writers and musicians from exploring violent topics in their works. Also, it states, the rating program would likely stigmatize works such as the Bible, The Iliad, William Faulkner's Light in August, nearly all religious art graphically depicting the crucifixion of Christ and much of Shakespeare.

No rating system, the appeal says, can distinguish between “good” violence and “bad” violence. Even if it could, such ideas can't be stifled by suppressing offensive speech and images.

“To counter destructive ideas and behavior requires us to see them for what they are and to speak out forcefully and effectively against them,” the statement reads. “The best response to hateful speech is still more speech, not enforced silence.”