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On
April 26, 2001, Hilary Clinton, Joseph Lieberman and others
submitted Senate Bill 792 entitled the "Media Marketing
Accountability Act." The necessity for this bill is summed
up as follows:
Because the entertainment industry continues to target
its advertising of adult-rated products to children,
there is need for narrowly targeted legislation to prohibit,
as a false and deceptive trade practice, the targeting
of children in the advertisement and other marketing
of products rated for adults, and to authorize the Federal
Trade Commission to stop these practices.
Senate
Bill 792.
This bill follows two reports by the Federal Trade Commission
("FTC"), the first of which outlined perceived marketing
of "adult oriented" material by the motion picture, music
and computer gaming industry to children, and the second
which found that these industries were not adequately responding
to concerns raised in the first report. (footnote
1) A third FTC report is already in the works,
and the FTC has indicated that it will be an even harsher
indictment of the industry.
This brief discussion hopes to offer some insights into
the government's renewed focus on the media as a cause of
social ills. My goal is not to engage in an academic exercise,
but to provide those in the business with a clearer context
of their legal rights as they attempt to wind their way
through a politically uncomfortable situation.
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2.
THE FTC REPORTS AND SENATE BILL
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The
government's attention was again drawn to the impact of
media on children following the Columbine High School
shooting, when then President Clinton asked the FTC to
investigate whether the entertainment industry was marketing
"adult oriented" violent content to children. This curious
Democratic Party effort stems from the still very controversial
proposition that "media violence can be harmful to children."
Senate Bill 792. By focusing on marketing rather
than the content itself, there seems to be some expectations
that there is a less significant First Amendment problem.
See Central Hudson Gas & Elec. v. Public Serv. Comm'n,
447 U.S. 557, 566 (1980) (commercial speech is only
afforded a qualified protection and there is no protection
for misleading commercial speech). Similarly, the Supreme
Court has repeatedly recognized that the protection of
children is a legitimate governmental interest that may
defeat a First Amendment challenge to legislation. See
Ginsberg v. New York, 390 U.S. 629, 639 (1968)
(upholding legislation prohibiting the sale of "girlie
picture" magazines to minors). Interestingly, it was the
Ginsberg case that prompted the motion picture
industry to adopt its current voluntary rating system.
Significantly,
the FTC in its reports expressly acknowledges the First
Amendment problems with regulating media companies, and,
for this reason, emphasizes that it prefers a resolution
based on voluntary compliance by industry created ratings
and enforcement systems. It is fairly clear that using
the government's bully pulpit to prompt industry action
does not run afoul of the First Amendment. Penthouse Int'l
v. Meese, 939 F.2d 1011, 1017 (D.C. Cir. 1991) (requesting
that magazine publishers answer questionnaires and attend
public hearings did not violate the First Amendment).
However, if the government's actions cross the line to
coercion, then First Amendment problems can arise. Bantom
Books, Inc. v. Sullivan, 372 U.S. 58 (1963) (government
created Commission for the Encouragement of Morality that
sent letters to book publishers and sellers about works
they found offensive and noted that it would refer obscene
matter to the attorney general for prosecution violated
the First Amendment).
A. Summary of the FTC Reports’ Findings.
In
its two reports, the FTC found that the motion picture
industry, the music industry and the computer gaming industry
had each established their own rating systems. The FTC,
however, was troubled by the extent the industry advertised
mature rated content in media predominately viewed by
children. It is important to understand that the FTC is
not concerned here with pornographic material, but rather
mainstream media. For example, the FTC mentioned that
MTV advertises music that includes explicit lyric warnings
during times when a significant portion of the audience
is under 17.
The
FTC also focused on the fact that the industry was not
enforcing its own ratings systems. For example, children
were getting into R rated movies unaccompanied by an adult
and children were able to purchase music with explicit
lyrics at any retailer.
At
the conclusion of its reports, the FTC sums up what it
expects from the entertainment industry to remedy this
problem:
1.
The industry should establish a rating system that can
be understood by parents and adopt an
outreach program to educate parents about their rating
system;
2. The industry should establish a code that prohibits
the marketing of "adult oriented material" to
children; and
3. The industry should improve its self regulating system
to ensure compliance with the rating system
at the retail level - i.e., prevent children from buying
music with explicit lyric warnings.
B.
Summary of Senate Bill 792.
While
the FTC clearly noted the First Amendment problems with
anything other than industry self-regulation, Senate Bill
792 arguable crosses the line from voluntary self-regulation
to compulsion. Senate Bill 792 empowers the FTC to prosecute
as false and deceptive advertising advertisements of "adult
oriented" media to children. While Senate Bill 792 provides
a safe harbor, like the FTC's recommendation, the safe
harbor requires the industry to undertake a course of
conduct far beyond simply restricting their advertising.
In particular, Senate Bill 792 requires the industry to
adopt policies that will further restrict minor's access
to the "adult oriented" content and develop a procedure
to sanction those in the industry who fail to comply.
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3.
THE FIRST AMENDEMENT, MEDIA AND CHILDREN
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A
few things quickly jump out when considering both
the FTC reports and Senate Bill 792.
A.
Regulation Beyond Advertising.
First,
despite their respective titles, both the FTC reports
and the Senate Bill, reach far beyond advertising.
Both demand improved rating systems, which begin to
smack of constitutionally impermissible compelled
speech. Riley v. National Federation of the Blind
of North Carolina, Inc., 487 U .S. 781, 795 (1988)
(Striking down disclosure requirement for charitable
organization). Secondly, both demand that the industry
create a sanction that is based on the content of
speech, the most constitutionally suspect of regulations.
Reno v . ACLU, 521 U.S. 844, 879 (1997) (striking
down effort to restrict "indecent" material on the
internet to protect children).
Supporters
of this effort no doubt will focus on the permissible
regulation of radio and television airwaves to protect
children from indecent material as a justification
for the present action. See FCC v. Pacifica Foundation,
438 U.S. 729 (1978) (upholding FCC regulation aimed
at protecting children by limiting the time when "indecent"
material can be broadcast over the radio); Denver
Area Educational Telecommunications Consortuim Inc.
v . FCC, 518 U.S. 727 (1996) (upholding the exclusion
of adult channels from the must carry requirements
of cable television in order to protect children).
This line of cases, however, is immediately distinguishable
due to the uniqueness of the mediums at issue. See
Sable Communications of California v. FCC,
492 U.S. 115 (1989) (refusing to apply the Pacifica
line of cases to dial a porn). In particular, the
Court has held that because of the scarcity of television
and broadcast spectrums and the invasiveness of the
medium within the home, regulation narrowly designed
to protect children can withstand constitutional scrutiny.
Reno v. ACLU, 521 U.S. 879 (1997) (holding
that the scarcity and invasiveness element is not
applicable to the internet). Movie theatres, music
stores and retailers selling games do not have the
same types of scarcity and invasiveness found relevant
in these cases.
B.
FTC's Limited Definition of "Entertainment".
A
second troubling aspect of this renewed governmental
effort is that it addresses only a limited category
of what is perceived as entertainment. While the FTC
wants to prevent a child from buying an album by Eminim,
there is absolutely no discussion or concern about
a child buying a book by the Marques de Sade. Similarly,
while the FTC wants to ensure that children do not
see films like "American Pie," it does not advocate
any rating requirements to prevent a child from viewing
the nudity in a live theatre production like "Hair."
The most likely response to this obvious anomaly will
be that this effort is focused on the advertising
of content and not the content itself. As has been
demonstrated above, however, this is simply not the
case.
At
best, the government is deriving some distinction
between what it considers high art and less worthy
entertainment. However, can anyone really make a compelling
argument that morality is more severely undermined
by an entertaining picture compared with a tediously
written group of words. While this distinction may
border on the absurd, there is a long line of case
law that shows the government's continued desire to
draw such a distinction. In upholding a state board
of film censors, the Supreme Court held in 1915 that
motion pictures
are
mere representations of events and ideas and sentiments
published and known; vivid, useful and entertaining
no doubt, but as we have said, capable of evil, having
the power for it, the greater because of their attractiveness
and manner of exhibition.
Mutual
Film Corp. v. Industrial Commission of Ohio, 236
U.S. 230, 244 (1915) overruled in Burstyn
v. Wilson, 343 U.S. 495, 501 (1952) ("The importance
of motion pictures as an organ of public opinion is
not lessened by the fact that they are designed to
entertain as well as to inform.").
Similarly,
there is precedent to support the constitutionality
of legislation designed to restrict entertainment
that promotes violence. Winter v. New York,
333 U.S. 507, 509 (1947) ("We have recognized the
importance of the exercise of a state's power to minimize
all incentives to crime, particularly in the field
of sanguinary or salacious publications with their
stimulation of juvenile delinquency.") Additionally,
it must be remembered that the Supreme Court has upheld
regulatory systems that restrict minor's access to
entertainment so long as the regulation is not unduly
intrusive on adults. See Ginsberg v. New York,
390 U.S. at 639. And this precedent supports the constitutionality
of a ratings board. But see Interstate Circuit, Inc.
v. City of Dallas, 390 U.S. 676 (1968) (in striking
down a motion picture rating board, the Court held
that "[v]agueness and the attendant evils . . . are
rendered no less objectionable because the regulations
of expression is one of classification rather than
direct suppression.").
C.
Interpretation of "Deceptive" and "Misleading" Advertising.
A
final troubling aspect of this current governmental
effort is its contention that the challenged advertising
is somehow deceptive or misleading. Although a piece
of music may contain a warning about explicit lyrics,
there is no law or internal industry regulation prohibiting
the sale of such music to minors. Similarly, while
a movie is rated R because of adult content, the industry
rating simply requires that a parent accompany any
minor to the movie. Advertising of either media to
children is not misleading in the common sense because
children are not barred from viewing or listening
to the media. The FTC contends that such a construction
of misleading and deceptive is overly circumscribed
and points to its ability to regulate the time and
manner of direct marketing as an analogy. Arguably,
however, at least one justice on the Supreme Court
does not believe that the government needs to make
such a stretch in order to fall within the meaning
of deceptive and misleading. U.S. v. Playboy Entertainment
Group, Inc., 529 U.S. 803 (2000) ("We have recognized
that commercial entities which engage in 'the sordid
business of pandering' by 'deliberately emphasize[ing]
the sexually provocative aspect of [their nonobscene
products], in order to catch the salaciously disposed,'
engage in constitutionally unprotected behavior.")
(Scalia dissenting).
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While
it is unlikely that Senate Bill 792 will pass, the entertainment
industry should expect significant political pressure
over the foreseeable future in the area of the availability
of its content to minors. Each of the three industries
targeted by this report have already undertaken action
in an effort to reach sufficient compliance with the governments
objectives. The real sticking point will come when the
industry starts to deal with the issue of enforcement
and sanctions. At present, there are no sanctions for
the sale of music with explicit lyrics to children and
a movie can still be released without an MPAA rating.
The government obviously wants this to stop. If the industry
ultimately accedes to the government's "requests," the
issue remains open as to whether such private regulation
could withstand a First Amendment challenge by a maverick.
FOOTNOTE:
(1)FTC Report to Congress "MARKETING OF VIOLENT ENTERTAINMENT
TO CHILDREN: A REVIEW OF INDUSTRY PRACTICES IN THE MOTION
PICTURE, MUSIC RECORDING & ELECTRONIC GAME INDUSTRIES"
September 2000; FTC Report to Congress "MARKETING OF VIOLENT
ENTERTAINMENT TO CHILDREN: A SIX-MONTH FOLLOW-UP REVIEW
OF INDUSTRY PRACTICES IN THE MOTION PICTURE, MUSIC RECORDING
& ELECTRONIC GAME INDUSTRIES" April 2001.
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