Legislative attention to violence on television began in the 1950s.(note 1) The Senate Subcommittee on Juvenile Delinquency of the Committee on the Judiciary under Senators Kefauver and, later, Dodd conducted investigations into this area in 1954, 1955, 1961-62, and 1964.(note 2) In 1969 the National Commission on the Causes and Prevention of Violence, chaired by Dr. Milton Eisenhower, reported that a constant diet of violent behavior on television has an adverse effect on human character and attitudes.(note 3) The Commission's study, however, was based on a small number of lab studies, and little action took place on the subject until 1972, when the Surgeon General issued a report concluding that television violence has an adverse effect on certain members of society.(note 4)
These early studies represent the beginning of a long continuum of research on violence on television and its effect on society, especially children. On December 1, 1990, President George Bush signed the Television Violence Act(note 5) into law. This Act, originally introduced in 1986 by Senator Paul Simon (D-Ill.), is designed to encourage the networks, the cable industry, and independent stations to reduce the amount of violence currently shown on television. The Act, according to Senator Simon, is not direct government regulation of television content. It simply permits the industry to establish standards on violence on a voluntary basis for limited purposes and a limited time. Nothing more. Nothing less.(note 6)
This Note examines the Television Violence Act. Part I discusses federal attempts to improve children's television including the 1974 Family Viewing Policy, a voluntarily imposed guideline found unconstitutional in 1976; the Television Violence Act; and the Children's Television Act of 1990. Part II discusses the relationship between violence on television and the behavior of certain segments of the population, including a discussion of various social science theories that purport to establish this relationship. A brief analysis of these theories establishes the difficulty in demonstrating a causal connection between violence on television and an individual's behavior. Part III provides a detailed analysis of the Television Violence Act, including the Act's problems, effectiveness, and constitutional implications. This Note concludes that, while the Act raises distinct First Amendment questions, it is constitutional. Irrespective of its constitutionality, however, the Act is unlikely to reduce violence on television enough to satisfy those in government who contend that violent television is a significant contributor to a violent society.
This Note, therefore, concludes with a discussion of alternatives to the Act for reducing television violence. Many of the proposed alternatives would be either unconstitutional or ineffective in accomplishing Congress's objective of decreasing the amount of violence in society by reducing it on television. Because the Television Violence Act is unlikely to change television content in any significant way, and because the proposed alternatives are either unconstitutional or unrelated to Congress's objectives, this Note recommends leaving regulation of violence on television to the market and allowing the public to show its approval or distaste for violent television by what programming it watches and what advertisers it supports. While the marketplace is not universally effective in inducing social change, it is far better than allowing the government to impose its values upon society by regulating the content of speech.
Concern over violent programming on television began to intensify in the early 1950s, when studies on the extent of television violence were first conducted.(note 7) In response to these studies and because of its concern for children, the National Association of Broadcasters (NAB) developed a code that recognized broadcasters' responsibilities to present certain themes with greater sensitivity and with regard to their potential effects on children.(note 8) The National Association of Broadcasters Television Code required broadcasters to present violence and sex without unnecessary emphasis and only as required by the plot development.(note 9)
After the National Commission on the Causes and Prevention of Violence released its report in 1969(note 10) and the Surgeon General released his study in 1972,(note 11) Congress began to take action. In 1974 both the House and the Senate Committees on Appropriations directed the Federal Communications Commission (FCC or Commission) to submit a report to the Committees outlining specific actions planned by the Commission to protect children from excessive programming of violence and obscenity.(note 12) In response, Richard Wiley, then Chairman of the FCC, attempted to get the three networks (ABC, NBC, and CBS) to adopt a policy of self-regulation that would decrease the amount of sex and violence on television.(note 13) Consequently, during the winter of 1974, the networks and the NAB Television Code Review Board adopted the Family Viewing Policy. The policy stated that programs broadcast during the first hour of prime time would be suitable for viewing by the entire family unless the network broadcast advisories warning parents that some of the materials might not be suitable for viewing by younger family members.(note 14)
Although the policy called for voluntary enforcement, the amount of violence aired on television did not change for three reasons. First, the broadcast industry is motivated by a desire for profits, and violence sells.(note 15) Second, in order to maximize its profits, television airs programs of mass appeal, and violent programs further this appeal.(note 16) Finally, violence is considered a key element of success for such programming. Therefore, the broadcast industry has little incentive to implement voluntarily any restrictions on violence.(note 17)
In response to the networks' failure to reduce violence on television, the Subcommittee on Communications of the House Committee on Interstate and Foreign Commerce held hearings on television violence.(note 18) The Subcommittee issued a report containing five conclusions.(note 19) First, it stated that while it may be impossible to prove a cause and effect relationship between television violence and aggressive behavior, excessive viewing of violence may have harmful effects.(note 20) Second, the responsibility for the present level of violence rests largely with the networks and, to a lesser degree, with broadcast licensees, program producers, advertisers, and the viewing public.(note 21) Third, parental supervision is probably the most effective way to curb the negative effects of excessive viewing of television violence by children.(note 22) Fourth, industry self-regulation is a potentially effective way to limit television violence.(note 23) Finally, there are avenues through which the Subcommittee, the FCC, and the public can address the problem of television violence in a manner consistent with the First Amendment.(note 24) Congress took no action regarding this report because of the belief that the First Amendment and Section 326 of the Communications Act of 1934(note 25) prevented any type of governmental intrusion into the programming decisions of the broadcasting industry.(note 26)
In 1982, ten years after the Surgeon General's first report on the effects of television violence,(note 27) the Surgeon General issued an updated report. The Surgeon General's new report stated that the great majority of observational or field studies and surveys indicate that there is a positive correlation between television viewing and a variety of behavioral influences including aggressive behaviors.(note 28) Congress and the Reagan administration largely ignored this report. In 1983, the NAB Code was eliminated.(note 29) In 1984, the FCC, as part of its efforts to deregulate the broadcast industry, discarded the Commission's rules curbing advertising time and separating commercials from programs on children's television.(note 30) After these actions, there was little legislation concerning children's television until the Television Violence Act.
Senator Paul Simon introduced the Television Violence Act. Senator Simon reported first becoming interested in reducing the amount of violence on television when late one night he turned on the television and watched someone being sawed in half by a chain saw. He wondered what happens when children see such programs.(note 31) Senator Simon then asked representatives of the television industry about the issue. The television industry informed Senator Simon that an NBC study showed that there might not be any relationship between violence on television and violence in society.(note 32) These representatives also told Senator Simon that they could not get together and agree on voluntary standards because it would violate the antitrust laws.(note 33) Consequently, Senator Simon introduced the first of a series of bills that would exempt the networks from the Sherman Antitrust Act(note 34) if they would reduce the amount of violence on television.
The Television Violence Act exempts from the antitrust laws certain activities relating to the reduction of violence on television.(note 35) The Act allows the three networks, Fox Broadcasting, the cable industry, and independent stations to meet regularly for a period of three years to discuss violence in programming. Before Congress passed the Act, the Sherman Antitrust Act prohibited the networks from any joint discussions. Under the Television Violence Act, the networks receive a three year exemption from the Sherman Actbut only to develop joint guidelines to reduce the amount of violent television.(note 36)
Significantly, the Act did not grant Congress or the FCC authority to enforce any guidelines that the networks create. Supposedly, if the networks do not reduce the amount of violence, the government will do nothing to enforce the Act. The Act provides the networks with the opportunity to meet and discuss this issue; it does not require them to do so. Before Congress passed the Act, it was difficult for one member of the television industry to impose internal standards on violence when the others could gain a commercial advantage by going in the opposite direction.(note 37) After all, violence is a surefire ratings booster.(note 38)
The Act became law on December 1, 1990. The television industry, however, did not meet until December 1992, when under pressure from Senator Simon, ABC, CBS, and NBC finally came together to establish some guidelines to reduce violent television. In a joint statement, the networks said that their standards are intended to prohibit depicting violence as glamorous or using it to shock or stimulate the audience.(note 39) The standards also limit violence characterized as gratuitous or excessive and prohibit scenes depicting excessive gore, pain or physical suffering.(note 40) They also limit scenes depicting the use of force that are inappropriate for home viewing; unique or `ingenious' methods of inflicting pain or injury; portrayals of dangerous behavior or weapons that invite imitation by children; and gratuitous animal abuse.(note 41) In children's programs, the agreement also bars realistic portrayals of violence that are unduly frightening.(note 42)
The problems with these guidelines are numerous. First, who but the networks will apply and interpret the guidelines? Moreover, who will decide what is gratuitous, glamorized, or excessive?(note 43) Further, violence has not even been defined. It is unclear whether the networks drafted the guidelines out of a sincere desire to reduce the level of violence on TV or merely to placate Senator Simon, who became disturbed that the networks had taken no action. Moreover, these standards have not reduced the amount of violence on television enough to satisfy Congress. In fact, Senator Simon became so disturbed by the networks' inaction that in August 1993 he told the television industry that it had sixty days to reduce the amount of violence on television or face congressional action.(note 44) This differs significantly from Senator Simon's earlier statements that any guidelines that the networks develop would be voluntary and unenforceable by the government.(note 45)
The Children's Television Act of 1990(note 46) is Congress's latest effort at improving children's television through regulation. The 1990 Act applies to the content of both children's programming and advertising during children's television. The Act restricts advertising on children's television to twelve minutes per hour during the week and 10.5 minutes per hour on weekends.(note 47) In addition, broadcasters must air programs specifically designed to meet the educational and informational needs of the child audience. Each station must comply with the Act's requirements in order to qualify for its license renewal.(note 48)
In enforcing the Children's Television Act, the FCC assumes compliance with the educational programming requirement unless a formal complaint is filed with the agency challenging a station's compliance. According to the FCC, it would be too burdensome for it to monitor compliance on its own.(note 49) The FCC's action, therefore, virtually assured that little change would occur in children's television.
Each station was to comply with the new children's educational programming requirements as of October 1991, but there has been littleif anynoticeable improvement. Networks have just taken shows such as G.I. Joe and The Jetsons and claimed they are educational.(note 50) The lack of improvement is due both to the Act's vague standards and also to the FCC's lack of visible interest in enforcing the Act.(note 51)
Despite its initial lack of enforcement, the FCC took action in March 1993.(note 52) The Commission announced that cartoons like The Jetsons will no longer count as educational and informational programming. The FCC also delayed renewing the licenses of seven stations, demanding that they provide better evidence that they are meeting their educational responsibility in children's programming.(note 53)
The average child watches about twenty-seven hours of television per week.(note 54) In fact many children spend more time in front of the television than they do in the classroom. It is therefore reasonable to conclude that television likely has some impact on a child's learning process. Arnold Fege testified before Congress in 1988: [F]or some children, television acts as the electronic baby-sitter and as a surrogate parent. With a T.V. in 96% of all American households, T.V. obviously has major effects on the attitudes, education and behavior of our children.(note 55)
Because of the number of children watching large amounts of television, many people have understandably become concerned with the amount of violence occurring during each day's programs. A study released by the University of Pennsylvania's Annenberg School of Communications in 1990 reported that prime-time programs average five or six violent acts each hour, while Saturday morning children's programs average twenty-six violent acts each hour.(note 56) The National Coalition on Television Violence also released a study that showed that 50 percent of cartoons were found to glorify violence or use violence to entertain.(note 57) According to Thomas Radecki, the Coalition's research director, by age eighteen the average child will have seen two hundred thousand violent acts on television, including forty thousand murders.(note 58) Moreover, after the 1980s and deregulation, violent acts increased by about eight acts per hour in children's television.(note 59)
Despite the reports, the networks have not reduced the amount of violence on television. At least five possible reasons may explain why network television executives opt for violent programming. First, violent programming is cheaper to produce than sophisticated drama, and it is far more profitable.(note 60) Second, action shows require less talented, less expensive actors than drama.(note 61) Third, the networks have found that violent shows sell much more quickly in foreign markets than drama or comedy. According to George Gerbner, former Dean of the Annenberg School of Communications, Violence travels well in foreign markets. It is a low-cost, high circulation commodity.(note 62) Fourth, violence is also much easier to depict in cartoons than humor because producers of cartoons rely on an assembly-line approach to churn out six-to- eight minute episodes, each with standard plots and characters.(note 63) According to George Gerbner, [P]roducers can develop new cartoons merely by using the same plots and types of characters, but by changing the cast.(note 64) Finally, violent programming attracts a large audience, and, therefore, advertisers are more likely to purchase space on such programs.
Because the networks seek profits, they are not eager to reduce the amount of violence on television. Moreover, the networks point to the weak link between violence on television and violence in society. The government, on the other hand, is apparently less concerned with the networks' profits and more concerned with the possibility that violent television produces a violent society. The government's action suggests that by regulating violent television it can reduce the amount of violence in society. But the government's objective of decreasing violence in society by reducing violence on television ignores the ultimate question: Does television reflect society or does society reflect television? Considering that violence is intertwined with so many facets of societysports, newspapers, plays, books, etc.it appears that television is just one reflection of a society that has violent roots that will continue to sprout.
Therefore, when the government makes an effort to reduce violence, it should consider whether the amount of violence on television impacts the amount of violence actually committed against real people. In other words, will any kind of regulation of television violence achieve the government's objective of reducing violence in society?
Congress, in addressing this concern, relied on numerous reports regarding violent television and its impact on society. These studies show a possibility that violence on television causes aggressive behavior. Unfortunately, the studies cannot offer more than a possibility. Because the studies cannot establish a causal link between violent television and violent behavior, they do not justify Congress's regulating the content of television. Nevertheless, Congress does regulate television violence, relying on four theories that have emerged from the various studies on television's effect on viewers.
The first theory is imitative violence, that is, young viewers imitate what they see on television. For instance, there was a film on television about a man committing suicide, and twenty-eight young men around the nation committed suicide exactly the same way after seeing it on television.(note 65) Further, convicted felons have admitted to learning new tricks and improving their criminal expertise by watching television.(note 66)
A second theory is the violence hypothesis. Advocates of this theory argue that viewing television violence causes aggression against individuals. One such advocate is Leonard Eron, research professor emeritus at the University of Illinois at Chicago and a psychologist at the University of Michigan Institute for Social Research.(note 67) While a psychologist at the University of Illinois, Dr. Eron and L. Rowell Huesman, another psychologist, studied four hundred males for more than twenty years. They found that children who watched significant amounts of television violence at the age of eight were more likely to commit violent crimes or abuse a child or spouse at age thirty.(note 68) A study by another advocate of this theory, Dr. Brandon Centerwell, a Washington psychiatrist and epidemiologist, showed that the mere introduction of television caused a doubling of violent crime as soon as the first children to watch television were old enough to commit crimes as adults.(note 69)
Dr. Centerwell's study raises an important question: Is it violence on television that contributes to violence in society, or is it television itself? Marie Winn, author of The Plug-In Drug: Television, Children and the Family, wrote in The New York Times, [T]he time-consuming act of watching replaces some crucial child experiences, notably play and socialization.(note 70) She suggests that it is not violence on television that is the culprit, but television viewing itself. Even if the content is monitored, if all the child watches is Sesame Street, National Geographic specials or 60 Minutes, the effect is the same.(note 71) And as Florian Sauvageau, director of journalism studies at Laval University in Quebec City, points out, Why is our society so violent? That is the issue at hand. We're just making television the scapegoat.(note 72)
While support for the violence hypothesis is substantial, it is not unanimous. Furthermore, while studies have easily established a correlation between television and violence, it is difficult to establish that television causes violence. Direct government regulation would almost definitely be unconstitutional unless at least a substantial link can be established between television and violence.(note 73)
The third theory was formulated by George Gerbner of the Annenberg School for Communications. Gerbner postulates that violence on television makes viewers more afraid, less perceptive of the real world, and more prone to support repression (more jails, more executions and more global policing) as long as it can be justified as enhancing security.(note 74) Gerbner's report, Violence Profile, involves the monitoring of samples of prime-time and weekend daytime television on all major U.S. networks each year.(note 75) Gerbner does not count violent episodes, but rather plugs the data into a formula designed to yield comparative measurements (called a Violence Index) of the violence in overall yearly programming. In calculating this formula, Gerbner looks at the percentage of programs containing an occurrence of violence, the rate of violent episodes per program, the rate of violent episodes per hour of programs, and the percentage of leading characters involved in violent acts (either as perpetrators or as victims).(note 76) Gerbner arrives at an index number by examining the frequency with which violence occurs, of the roles assigned to victims and aggressors, and of the relative frequency with which a violent act results in death.(note 77)
While Gerbner is probably the most popular and well-known of social scientists who engage in this research, he fails to measure the correlation, if any, between violent behavior in real life and the frequency of violence on TV.(note 78) Consequently, it is difficult for the government to use Gerbner's Violence Profile as a justification to regulate violent television.
The final theory offered by social scientists is the idea of desensitization. This theory holds that children become immune to the horror of [televised] violence, and they become passive when they see it occur in real life. Because children see violence so often on television, real life violence doesn't have as much impactit can almost be perceived as another television show.(note 79)
The problem with all of these theories is that they only show that televised violence may result in increased aggressiveness, desensitization, or fear. In order to regulate the content of television, Congress should be required to show at least a substantial, if not direct, link between violent television and violent behavior. While most scientists studying in this field agree that there may be a relationship between televised violence and aggressive behavior in children,(note 80) the scientists have not established a causal connection between violence on television and violence in society. But what these studies all have in common, however, is that they establish at least a correlation between television and violence. Consequently, many scholars, social scientists, and members of the government would like to see the amount of violence on television reduced. The question is how to do this without running afoul of the First Amendment. Regulating the amount of violence on television is, after all, content control, which the Supreme Court has often found unconstitutional, even in the area of broadcast media.
The Television Violence Act became law on December 1, 1990; the three-year exemption to the antitrust laws will thus expire in December 1993. But even in the Act's last year, many questions remain to be answered. Is the Act government suppression of speech or a means by which the networks can join together to reduce what they too believe to be a social ill? Is the Act necessary, or is the government's goalto reduce violence in society by reducing the amount of violence on televisionmisdirected? Is the Act effective or are the guidelines merely a way to appease Congress?
Although the Television Violence Act is not subject to FCC enforcement and is merely a limited exemption from the Sherman Act, it is still a government measure to control the content of television programming. Even if the Act is not direct coercion, it is government regulation:
[T]he bill is a velvet glove. Though couched as an invitation to the industry to do something about violence, it actually is an order. In form it is an exemption from antitrust laws, giving members of the industry permission to conspire in a noble cause. Implicitly it is a threat: Unless a solution satisfactory to Congress is achieved within three years, sterner legislation will follow.(note 81)
Whether or not the Act is a threat by Big Brother(note 82) or merely something that the networks have hoped for in order to reduce the amount of violence on television,(note 83) the question still remains whether the Act is constitutional. The main arguments for the Act's constitutionality are that the Act is limited to the broadcast arena, that any guidelines would be self-imposed and therefore the Act's provisions do not require or prohibit speech, and that, although it is content-based, it does not discriminate on the basis of viewpoint.
The Supreme Court has traditionally applied more lenient standards to government regulation of broadcasting than to regulation of other media, even when such regulation is based on content.(note 84) Although the Supreme Court has not articulated a precise standard of review for regulation of electronic media, it has stated that because broadcast regulation involves unique considerations, our cases have not followed precisely the same approach that we have applied to other media and have never gone so far as to demand that such regulations serve `compelling' governmental interests.(note 85)
The difference in treatment has been based on two arguments. First, the broadcast medium is scarce and therefore needs regulation to overcome problems caused by this scarcity.(note 86) Second, broadcasting is a public resource and therefore the government has the obligation to set standards to make certain that the `resource' is not wasted or misused.(note 87) Although both of these reasons pose strong rationales for the Act's constitutionality, neither is a convincing argument. First, the scarcity argument is quickly becoming obsolete.(note 88) Today, the number of broadcasting outlets far exceeds the number of operating daily newspapers,(note 89) which receive more First Amendment protection than electronic media. In addition, it is questionable whether it is appropriate to exact a quid pro quo by requiring broadcasters to operate in the public interest.(note 90)
Because electronic media, especially television and radio, receive a less stringent level of scrutiny, the regulation must only be narrowly tailored to serve a substantial (or perhaps only legitimate) governmental interest.(note 91) The government here has two strong interests: protecting the nation's children and preventing physical injury. Because numerous studies have established a significant link between violent television and aggressive behavior, voluntary guidelines are narrowly tailored and seek to accomplish [the] goal in a distinctly unintrusive fashion.(note 92)
The Supreme Court, in a number of cases, has upheld various regulations that, although content-based, are not viewpoint- based.(note 93) The Television Violence Act is similar to these regulations. Although it is a content-based regulation, it is not viewpoint-based. Of course, the government could not enact selective exemptions from the antitrust laws in order to encourage speech that it prefers, or discourage speech that it dislikes.(note 94) For example, the government could not give an antitrust exemption for the networks to get together and discuss how to broadcast Democratic views at the exclusion of Republican views. This action would be an unconstitutional viewpoint-based regulation. In contrast, when it enacted the Television Violence Act, the government did not suppress a particular point of view. The government is remaining neutral in its regulation of protected expression.(note 95) The government is not trying to suppress a social, political or philosophical message a [broadcaster] intended to communicate.(note 96)
The Supreme Court has never held that content regulation is subject to a per se ban . . . .(note 97) A court will likely uphold a content-based regulation as long as the regulation furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that governmental interest.(note 98)
The Television Violence Act is directed at the secondary effects on the country rather than a point of view.(note 99) In other words, the Act is aimed not at the suppression of free expression, but at the control of messages thought to be harmful because of the manner in which they are delivered.(note 100) In City of Renton v. Playtime Theatres, the Court held that a regulation that concentrated a city's adult movie theaters into a particular area was constitutional.(note 101) The Court based its holding on the district court's finding that the City's predominate concerns were with the secondary effects of adult theatersfor example, increased crime and a deterioration of the quality of lifeand not with the content of the adult films themselves.(note 102) Similarly, the Television Violence Act's purpose is to reduce the amount of violence in society, not to suppress certain ideas violent television may contain.
Content-based regulations that are not designed to censor any particular viewpoint do not trigger the most exacting First Amendment scrutiny. The regulation must only be narrowly tailored to serve an important governmental interest.(note 103) Here, the interests in preventing the public from violence and protecting children from unwilling exposure are indeed strong. Further, because the Act does not ban violent television, but merely asks that the networks reduce the amount they air, a court would likely find that the Act is the least restrictive means to further the government's interests. Consequently, a court could find the Act constitutional under this rationale.
Perhaps the best argument for the Act's constitutionality is based on the Supreme Court's holding in FCC v. Pacifica Foundation.(note 104) In Pacifica, the Court, in a 5-4 opinion, upheld the power of the FCC to regulate `adult speech' over the radio air waves [sic], at least in some limited circumstances.(note 105) The speech involved was George Carlin's comedy routine, Seven Dirty Words. The Court said that although the speech was indecent, it was not obscene, and therefore deserved some First Amendment protection. However, the Court then turned around and said that broadcasting receives the most limited free speech protections of all forms of communication because it is a uniquely pervasive presence in the lives of all Americans and is uniquely accessible to children, even those too young to read.(note 106) These factors limited the Carlin broadcast's First Amendment protection. If Carlin had presented his monologue in a theater rather than on the radio it presumably would have received greater protection.(note 107)
On its face, the Pacifica holding seems to support Congress's power to regulate violent television. Television is, after all, a broadcast medium, and therefore courts accord it less First Amendment protection. Moreover, many children have almost unlimited access to a television. Like a radio, the viewer may turn it on without being aware of the programming to be faced. There are, however, several factors that may limit the holding of Pacifica to the radio.
First, radio may be more pervasive than television. Many people have a television guide and therefore will not turn on the television unless they know what they want to watch. In addition, warnings are often placed in television listings and even made on the air at the beginning of programs and/or during commercial breaks.(note 108) On the other hand, people are constantly turning off and on the radio without knowledge of the programming content. When it comes to children, however, a court could easily recognize that either children are too young to read television listings or would never think to look at them. Therefore, this argument presumes that parents are present to censor their children's viewing habits.
Second, while regulations to protect children are understandable, the regulations should not abridge other viewers' First Amendment interests.(note 109) While the Television Violence Act is primarily designed to protect children, the Act abridges the First Amendment rights of willing adults, the First Amendment rights of children,(note 110) and the constitutional rights of parents to determine whether their children should be exposed to certain types of programming.(note 111) After Pacifica, however, it is doubtful the Court would take these factors into account, especially when considering the substantial link between violence on television and violent behavior.
Another reason Pacifica may not apply is that the Act is really only an exemption from an already existing law and not a newly created law enforceable by the government. Congress is not directly censoring the material the networks broadcast (although it may be indirect censorship). On the other hand, the FCC's actions in Pacifica were much more intrusive on the editorial discretion of a broadcaster because the FCC made the decision regarding what can and cannot be broadcast on the radio. The Television Violence Act allows broadcasters to make this decision. In this way, a court would likely find that the Act is less offensive to the First Amendment than in Pacifica and therefore would apply less scrutiny to the regulation.
Because the courts accord electronic media less First Amendment protection than other forms of media and because of the societal interest in protecting both children and the rest of society from harm, a court will no doubt find the Act constitutional. And Congress has already hinted that it may take further action if the networks do nothing to reduce violence on television.
Judging from the networks' actions so far, it is not clear whether they will actually reduce the amount of violence on television. The Act expires in December 1993. The networks convened for the first time in December 1992 to discuss the voluntary guidelines,(note 112) and it was not until June 30, 1993, that ABC, NBC, CBS, and Fox Broadcasting offered to air warnings preceding violent shows.(note 113) And the networks developed the parental advisory plan only to avoid a federally imposed system of ratings for violence on television.(note 114) Moreover, critics of the networks' actions have already pointed out numerous problems with the networks' plan. First, the networks will decide for themselves which shows are violent.(note 115) Second, the plan assumes the presence of parents both to catch the warnings and to switch the channel. This assumption ignores the millions of children who watch television without supervision.(note 116) Third, the advisories may be just a faster road map to the violent material.(note 117) In other words, many children may watch a program simply because the network issued a warning.(note 118) Fourth, many cable and syndicated programs remain exempt.(note 119) Finally, broadcasters could use the warning system as a license to air programs that are more violent than those broadcast before the advent of a warning system.(note 120) This development would frustrate the government's goal of reducing the amount of violence on television.
Because the networks' actions are so recent, viewers may not have an opportunity to see the results of the warning plan until the 1993 fall season is well under way. At a conference on television violence in Los Angeles, California, on August 2, 1993, however, Senator Simon said that the television industry had sixty days to start reducing and monitoring violence on television or face congressional action.(note 121) Senator Simon has not described what the congressional action would entail.
For an industry supposedly eager to cure a violent society, the networks have proceeded very slowly. This may be due to the fact that at the time of the Act's passage, the networks claimed that it was unnecessary because they had their own standards departments. If they felt the Act was unnecessary in 1990, who is to say that they feel differently now? Additionally, because of the market lure of violent programming, the networks do not have a strong economic incentive to change their current programming.
If the Act does indeed prove to be ineffective in prompting the networks to act, how will Congress respond? At one time, Senator Simon suggested that the government would do nothing. His recent statements, however, suggest otherwise.(note 122) There are a number of alternatives for the government if the broadcast industry does not reduce the amount of violence on television. The same questions that were asked about the Television Violence Act must also be asked with regard to any alternatives: Is the regulation constitutional? Is it effective?
If the Television Violence Act fails to reduce the amount of violence, it will be largely because the networks are the ones to apply and interpret the guidelines. They decide what violence is glamorized, excessive, and/or gratuitous.(note 123) Therefore, any subsequent regulation will probably be a statutorily imposed FCC regulation. An FCC regulation will require the same scrutiny in a court that the Act would receive. A court, however, may very well find a statutorily imposed regulation not to be the least restrictive means to reduce violent television.(note 124) Further, although the Communications Act of 1934 requires the FCC to ensure that broadcast licensees operate in a manner consistent with the public interest,(note 125) Section 326 of the Act prevents the FCC from using its powers to censor broadcast media.(note 126) But, because of the limited First Amendment protection electronic media receives, and because of the strong interest the government has in protecting children, the manner in which the FCC could regulate television violence may affect a regulation's constitutionality.
The first alternative, which involves FCC action, is to ban violence on television completely. This alternative would not only be unconstitutional, it would be unnecessary to achieve the government's objective of reducing the amount of violence in society. The television, after all, is not the only culprit of our violent society. This nation witnesses acts of violence everywhere. Violence is a part of life and has a place in drama. The problem therefore becomes one of narrowing the use of violence on television in a manner designed to combat the creation of increased aggression in the viewer.(note 127)
A more constitutionally acceptable regulation of violent television would be to limit violence to certain times or days in the week. For instance, the FCC could remove violent television from the early evening hours. In light of Pacifica, a court would most likely find this type of regulation constitutional.
This regulation would, however, face similar problems that a voluntarily enforced guideline would. The government would be limiting violent television solely because of its content. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.(note 128) However, in light of Renton and Pacifica, a court would uphold zoning violent television for the same reasons the Television Violence Act could be upheld: the medium is television, Congress is regulating the secondary effects, and it has a unique accessibility to children.
Like the Television Violence Act, zoning violent television abridges the rights of parents and other adults. However, if a court were to weigh the interests of willing viewers against the government's interest in protecting society and its children from harm, a regulation that would merely limit the amount of violence, although posing First Amendment problems, would pass constitutional muster.
A third alternative involves lock boxes, or other technical solutions, which provide a potential means of reducing the amount of violence children see on television. Lock boxes are appealing because they preserve the rights of both adult viewers and parents, the group that should exercise the greatest control over their children's access to the television set. A lock box, or other similar technical facility, requires attaching a device to the television set that prevents access to certain programs. The FCC could possibly require the television manufacturer to attach such devices to the television.
Moreover, the lock box rule may be justified on grounds unrelated to the suppression of expression. Two scholars have pointed out that lock boxes conserve energy for all owners of television sets and that pay-television subscribers may save billing costs from undesired or inadvertent use of the set.(note 129)
Two potential problems arise with the possibility of using a lock box. First, a technical device is unlikely to address the central concerns of those who believe televised violence is a social ill, because lock boxes do not guarantee a reduction (or elimination) of televised violence. Nevertheless, the fact that some members of society may be offended by television violence is not a permissible basis for censorship of speech.(note 130)
The second potential problem is that parents might be unwilling or unable to supervise their children's television viewing even if the means to do so were readily available. For those who believe televised violence is a social ill, the lock box does not adequately address the concerns. But for those who believe that parents should retain the right to supervise the rearing of their children, a lock box is a good solution. As for the argument that parents may be unable to supervise their children's television fare, it may be possible to design lock boxes to lock out certain channels even while a parent is not in the home.
Regardless of the potential problems, technical solutions such as lock boxes seem to be an effective way to help parents to control the amount of television their children watch. But these alternatives are unlikely to have much political appeal because they will not reduce the amount of violence in television programming, and there is no guarantee that parents will prevent their children from viewing excessive violence. The current tenor of Congress seems to be toward action that will reduce the amount of violence on televisionand reduce it as quickly as possible.(note 131)
Because lock boxes do not relieve the anxiety of those who view violent television as a social ill, and because other statutorily imposed regulations seem too intrusive, the marketplace may be the only other alternative. While a market alternative may not address the concerns of those who believe in complete or partial regulation, it is the alternative that most effectively addresses the concerns of viewers. After all, it is the First Amendment rights of viewers that are paramount.(note 132) And the viewers have manifested in the market their enjoyment of violent television and their willingness to pay for it.
The television industry is part of the marketplace and is likely to respond to market pressures. Thus, public outcry against certain programming or a boycott of advertisers that consistently advertise their products on a particular type of program may be preferable to Congress acting as arbiter.(note 133) The television industry will often receive thousands of letters in response to a certain type of programming. Shouldn't it be up to the industry to determine when to remove a particular program?
Even if viewers do not find a program harmful, and therefore do not respond through the marketplace, the viewers should control the content of television programming. Control of television content should not be left to Congress. Today, Congress wants to control the amount of violence on television. Tomorrow, Congress may want to control the amount of drugs shown on television. The Senate bill that preceded the Act is a perfect example of how Congress may use antitrust exemptions to regulate all kinds of controversial subjects. When the Bill passed the Senate unanimously in 1989, it contained an amendment introduced by Jesse Helms (R- N.C.) that would have included sexual activity in the Act's coverage. The House version limited the antitrust exemption to violence. After both versions passed, the Bill went through a joint conference committee to resolve the differences, and the committee eventually omitted the sexual activity language. Thus, the Television Violence Act could set the stage for further censorship.(note 134)
Because the purpose of our communication system is to allow, where possible, the free market to determine matters,(note 135) television violence should be left to the control of the market. Moreover, one of the goals of the FCC is to promote diversity.(note 136) This goal focuses on adding voices to provide viewers with a full range of programming options. Diversity does not countenance eliminating voices or viewpoints.(note 137) Therefore, regulating violent television is in conflict with promotion of diversity. The market will provide a fair degree of diversity, especially in a time of numerous outlets.(note 138)
Protecting children is a worthy goal, and it is indeed hard to ignore the substantial social science data that links television with violence in society. However, one must remember the importance of the First Amendment. For years, the government has attempted to impose its values on society by suppressing unpopular ideas. The Court, usually remaining faithful to the tenets of the First Amendment, has struck down these various regulatory activities. Pacifica represented an erosion of these First Amendment principles. Hopefully, this departure will not continue. Even when regulating the media, one must keep in mind the First Amendment, the values attached to it, and the dangerous suppressive action it prevents.
While the Television Violence Act appears to fall in line with a number of Supreme Court cases that allow regulation, the government must not go too far. If, as predicted, the networks fail to reduce television violence under the Act, government should allow television to return to the free market systemits rightful place.
An antitrust exemption is not the answer either. With an exemption, the government is basically manipulating the antitrust laws to bring about government censorship.(note 139) The government should not be able to hand out antitrust exemptions in order to impose its own values on the television industry. This is a dangerous activity and not a sensible way to overcome the deleterious effects of cutthroat competition.(note 140)
Consequently, although the Television Violence Act may be constitutional, any further direct regulation of television violence would violate the First Amendment because it impedes the freedom of expression long enjoyed by Americans. In December 1993, the Act will expire, and the government should return television to where it belongs: the marketplace. Congress may then work to eradicate crime and violence by focusing on the deeply rooted social conditions that create them. Congress should stop blaming an electronic box that merely reflects the society that already exists.
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