Commentary

Rated V for Violence: Legislation Stamping Warning Labels on Electronic Media May Cause Constitutional Sticker Shock

By Ronald D. Rotunda
This essay was originally published in the Legal Times on Aug. 14, 2000.
The Media Violence Labeling Act of 2000, now pending in the Senate, is on a collision course with the Supreme Court. Last May, Sens. John McCain and Joseph Lieberman introduced this bill, known as S. 2497. It will require manufacturers and producers of audio and visual products-including movies, video games, and music-to label “violent content in audio and visual media products and services (including labeling of such products and services in the advertisements for such products and services) … .” People will not be able to sell any audio or visual media product “or service” to any consumer judged too young to cope with the violence in it.

The bill covers motion pictures, but oddly enough, excludes all television programming, including movies broadcast on television, no matter how violent. This bill, while no doubt well-intentioned, contravenes cases protecting free speech.

Even though this bill is in the early phases of consideration by the Senate, it raises implications so troubling it is important to evaluate it now. This is especially so in light of the fact that one of its authors is now a candidate for vice president of the country.

INVOLUNTARY LABELING

Pursuant to the bill’s “Voluntary Labeling System,” manufacturers and producers “of audio and visual media products and services”-our newest regulated industry-“may submit” a “joint proposal” to the Federal Trade Commission without worrying about antitrust liability.

(It is significant that, despite the bill’s implication to the contrary, no industry needs statutory permission to propose or lobby for a law because settled case law already gives First Amendment protection to that conduct.)

The bill also provides that the FTC will issue its own labeling system for audio and visual products, which need not be based on the industry proposal. No one may sell or distribute covered products without the FTC label, and no one may buy a product or service unless he or she meets the age requirements specified in the label. Every violation is subject to a fine of up to $ 10, 000. Each day of distribution is a separate violation.

One should compare this labeling system to the system now in effect for movies. That scheme, unlike the one proposed in the bill, is truly voluntary- some movies are simply not labeled. In addition, there are only a few hundred movies a year, but there are literally tens of thousands of video games, songs, and other musical works published each year. One could not even begin to catalog all of music pieces distributed on the Internet in digital MP3 format.

Under S. 2497, no one could publish any of them unless they first obtained labels from whatever licensing board the FTC would create to implement the terms of the bill. If government bureaucrats are slow to approve, then the delay could last a long time. Then there may be protests of the assigned labels, appeals, and so on.

The bill’s labeling scheme is a classic prior restraint, invalid under the First Amendment. The case law establishes that a prior restraint occurs when a court or administrator issues an order that prevents communications prior to the time that they would otherwise occur. As the Court stated in Bantam Books Inc. v. Sullivan, “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. ” The point of a prior restraint is to freeze or postpone-that is, restrain- speech. Under S. 2497, no one could sell or distribute a covered product or service without first securing the FTC-approved label. Thus the problem.

The law sometimes allows prior restraint of materials that are constitutionally “obscene,” as the Court held in 1965 in Freedman v. Maryland. Yet, even for allegedly obscene work, the Court now requires important procedural and substantive safeguards not found in the McCain-Lieberman bill.

The Court’s cases on the topic indicate that, to be permissible, any government body or official trying to impose a prior restraint: (1) must afford the accused party a prompt hearing; (2) must show that the material is, in fact, obscene; (3) must defer to a judicial proceeding for the imposition of a valid final restraint on the material; and (4) must seek an affirmation in court of its initial obscenity finding.

The labeling bill does not adopt any of these safeguards. It does not mandate a hearing, prompt or otherwise. It forbids the sale or distribution of any publication or service unless it first undergoes the labeling gauntlet, even though that procedure may be time-consuming. The bill evidences no concern for burden-of-proof issues. There is no provision for a prompt judicial hearing. And there is no provision for the FTC to go to court to seek an affirmation of its determination of “violence” before any labeling could go into effect.

It is important to emphasize that the proposed legislation lacks the important substantive requirement that the disputed material be “obscene” before it is subject to prior restraint. In its 1973 decision in Miller v. California, the Court defined “obscenity” by imposing the following test:

“The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” (Emphasis added.)

Because the pending labeling bill is not limited to “sexual conduct” under the Miller test, it is unconstitutional. Instead, it is concerned with ” violence,” a term that is defined nowhere in the bill, and perhaps is not definable.

In addition to being unconstitutional, the bill would be ineffective, because it does not apply to movies shown on television, no matter how violent. Children (with parental supervision) could not view a violent movie at a local cinema, but (without parental supervision) they could see the same movie for free on television. These same children would not be able to learn about the horrors of war by watching a documentary at the local theater, but could see any program glorifying war on TV.

The bill also poses an enforcement problem. Though it provides for civil penalties, the legislation does not authorize the federal government to prosecute violations. Instead, it gives the “authority” to “the attorney general of a State” to “receive and investigate allegations” of violations of this law. The bill could not require the states to enforce it, given the Court’s 1997 opinion in Printz v. United States. That decision held that certain provisions of the Brady Handgun Violence Prevention Act, which commanded state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks, violated the Constitution. A 1992 case, New York v. United States, offers a similar lesson.

By failing to authorize federal enforcement of its provisions, the bill has no teeth. The proposed legislation, therefore, is something of a charade, claiming to address a problem without providing any means of doing so.

ULTIMATE IRONY

The ultimate irony of the labeling bill, though, goes beyond its specific provisions, and even beyond its questionable constitutional viability. Rather, it’s about what our experience teaches us about labeling entertainment.

This bill would require a new labeling system on top of the current voluntary movie-labeling system. But that present system has failed to work as intended, because it has affected how Hollywood makes movies. Studios try to avoid garnering a “G” label for their products-we live in a vulgar age, and “G” is now the box office kiss of death.

In the same way, one would expect the makers of music CDs, video games, and the like to avoid a similar designation. So if the proposed rating system does become law, it may cause producers of CDs and other audio and visual entertainment to add violent content in order to avoid the equivalent of a “G” label.

The lesson to be learned: Be careful what you wish for because your wish may come true.

Ronald D. Rotunda is the Albert E. Jenner Jr. Professor of Law at the University of Illinois College of Law and a visiting senior fellow in constitutional studies at the Cato Institute.