Briefing Paper No. 24 August 3, 1995

Briefing Paper

"V" Is Not for Voluntary

by Robert Corn-Revere

Robert Corn-Revere is a partner at the Washington, D.C., law firm Hogan & Hartson L.L.P. and teaches First Amendment law at the Communications Law Institute, Catholic University of America School of Law. From 1990 to 1994 he served as legal advisor to FCC commissioner James H. Quello.


Executive Summary

Proponents of V-chip legislation tout it as a "voluntary" system that imply restores parental control of the family television. But there is nothing voluntary about the rating systems being proposed. First, ratings for television programs would be imposed either by a government commission or by the industry under a government-compelled deadline. Second, the courts have invalidated government-imposed ratings systems for movies as "unbridled censorship," and the same First Amendment considerations would apply to television. Third, the legislation does not amount to "parental responsibility," for parents would not be the ones to determine what is objectionable. Rather, parents would gain the ability only to tune out programs deemed by the government to be unfit for family viewing.

Contrary to the characterizations of its congressional sponsors, the V- chip is not a voluntary solution to the issue of televised violence, nor is the focal point of the debate the V-chip itself. The heart of the debate is whether the Constitution permits the government to impose a ratings system for television programming. It does not.

Introduction

There appears to be a V-chip in our future. A V-chip is circuitry that can be wired into a television set to block programming that has been designated with a "violent" rating. V-chip technology is the centerpiece of legislation passed by the Senate in June, and a V-chip bill is currently being considered in the House. The proposed bills would require screening technology and ratings to prevent viewing of other types of "offensive" programming besides shows containing violence. President Clinton specifically en- dorsed such circuitry at a conference on children in July. That makes the prospects for passage about as accompli as a fait gets in Washington.

Proponents of V-chip legislation tout it as a "voluntary" system that simply restores parental control over the family television. Instead of imposing government censorship and threatening the First Amendment, they say, the V- chip simply gives parents more information about television programming and enables them to act on it. The law would not create a "Big Brother," according to Rep. Ed Markey (D- Mass.), who introduced his V-chip bill in July. "It's more like 'Big Mother' and 'Big Father,'" he says.(1) Or, as the president put it, "This is not censorship. This is parental responsibility."(2)

Those assessments, however, paint a false picture of the proposed laws. First, there is nothing voluntary about the rating systems being proposed. Ratings for television programs would be imposed either by a government commission or by the industry under a government-compelled deadline. Second, the courts have invalidated government-imposed rating systems for movies as "unbridled censorship," and the same First Amendment considerations would apply to television. In that regard, judges have been no more willing to accept schemes by which the government seeks to coerce television licensees to reduce the number of violent programs. Third, the legislation does not amount to "parental responsibility," for parents would not be the ones to determine what is objectionable. Rather, parents would gain the ability only to tune out programs deemed by the government to be unfit for family viewing. We can only guess what programs might be affected because Congress is not saying.

The Legislation

The House and Senate bills are substantially similar but contain some slight differences. The Telecommunications Competition and Deregulation Act, S. 652, passed by the Senate on June 15, would require that all television sets over 13 inches be equipped with circuitry that would enable users to screen out a particular channel during specified times or "block display of all programs with a common rating." The bill would give the industry one year from the date of enactment to come up with a rating system that would enable the circuitry to screen out "violence or other objectionable content in television programming."

If the industry fails to "establish the rules" contemplated by the bill during the one year set aside for "voluntary" compliance, the law creates a Television Rating Com- mission, with five members appointed by the president and confirmed by the Senate. Three of the seats on the new agency would be reserved for members of "appropriate public interest groups" or "interested individuals from the private sector." The remaining two members would be drawn from the broadcast and cable television industries. The Television Commission's job would be to "establish the rules for rating the level of violence or other objectionable content in television programming, including rules for the transmission by broadcast stations and cable systems."

The House bill, H.R. 2030, entitled the Parental Choice in Television Act of 1995, would authorize the Federal Communications Commission to create an "advisory committee" that would "identify and rate video programming that contains sexual, violent, or other material about which parents should be informed." The technology would then "block the display of video programming that [parents] have determined is inappropriate for their children." H.R. 2030 states that the industry may avoid government-prescribed ratings only if it "establish[es] voluntary rules for rating video programming" and "agree[s] voluntarily to broadcast signals that contain ratings." The FCC advisory committee would be created if the broadcast and cable TV industries fail to come up with a ratings system that is "acceptable to the [Federal Communications] Commission" within one year. Under either bill, one way or another, all televisions will be equipped with V-chips and all programs will be rated. Big Mother, indeed.

Constitutional Problems

It is understandable that Congress would attempt to characterize its approach to ratings as "voluntary," for government-compelled ratings have been uniformly invalidated by the courts. Such cases arose from local attempts to classify and restrict films. But as a result of Supreme Court and lower court review, local licensing and ratings boards have been consigned to constitutional oblivion.

One of the last such cases presented to the Supreme Court involved a licensing ordinance for the city of Dallas, Texas. Under the Dallas law, a film had to be reviewed by a Motion Picture Classification Board and receive a rating. If the film was deemed to be "not suitable for young persons," all advertisements were required to clearly disclose the classification, patrons under 16 had to be turned away at the box office, and the exhibitor had to obtain a special license to show "not suitable films." The ordinance also set out a long description of the substantive standards governing ratings decisions. It provided that "not suitable for young persons" means "describing or portraying brutality, criminal violence or depravity in such a manner as to be, in the judgement of the Board, likely to incite or encourage crime or delinquency on the part of young persons." The ratings system also covered films "describing or portraying nudity beyond the customary limits of candor in the community."(3)

The Supreme Court struck down the Dallas ordinance as a violation of the First Amendment. In doing so, the Court cited a host of other decisions in which similar rating systems had been struck down as unconstitutional.(4) The Court was not impressed with the city's argument that its licensing system was consistent with the First Amendment because it employed "classification rather than direct suppression." Nor were the law's unconstitutional features rendered acceptable because the ordinance was "adopted for the salutary purpose of protecting children." The Court said that such a classification system would cause theater owners to shy away from any films that would receive an "unsuitable" rating, so that they would "contract to show only the totally inane." Echoing former FCC chairman Newton Minow's view of television, the Court said, "The vast wasteland that some have described in reference to another medium might be a verdant paradise" compared to a world in which films are judged according to a government ratings system.(5)

Since the Supreme Court took that strong position against film censorship, such official rating schemes have completely faded away. But at the same time, and somewhat ironically given the Court's reference to Newton Minow, the drive to impose some analogous system on television has escalated, culminating in the current V-chip proposals. Evidently aware of enough constitutional history to try to avoid the appearance of a frontal attack on free speech, the congressional sponsors framed their current proposals in terms of encouraging industry to adopt "voluntary" ratings.

Some proponents of regulation are taking the position that such an approach would be constitutional for broadcasting because the First Amendment has been applied with less rigor to that medium. In particular, some V-chip advocates point to a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit that upheld the FCC's rules regulating "indecent" speech.(6) However, nothing in that case suggests that the court was willing to extend the precedent beyond "indecent" speech, and the Supreme Court has expressed a decreased tolerance for broadcast content controls. As it noted last summer, "The FCC's oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered by broadcast stations."(7) Nor may the government "impose upon [broadcasters] its private notions of what the public ought to hear."(8) In addition, courts have emphatically struck down indecency rules applied to cable television, which Congress now seeks to include in the V-chip scheme.(9)

Rather than reduce constitutional problems, the plan to impose a "voluntary" solution on the broadcast industry may create more First Amendment difficulties.(10) As the Supreme Court made clear in the Dallas film ratings case, the prob- lem of a vague rating scheme "is particularly pronounced where expression is sought to be subjected to licensing."(11) Such concerns apply with special force to broadcasters, who must periodically seek license renewal from the FCC. For that reason, the U.S. Court of Appeals for the D.C. Circuit struck down a requirement that noncommercial radio stations make audio tapes of programs on which "issues of public importance" were presented. It found that both commercial and noncommercial broadcasters are subject to "a variety of sub silentio pressures and 'raised eyebrow' regulation of program content." Accordingly, even a seemingly neutral regulation could be invalid to the extent it increases the likelihood that broadcasters "will censor themselves to avoid official pressure and regulation."(12)

Concern over informal pressure by the government led courts to strike down a drive to restrict violent TV shows 19 years ago. In the mid-1970s broadcasters adopted the "family viewing policy" as a result of a concerted effort by Congress and the FCC. Then-chairman Richard Wiley, pursuant to a congressional directive, initiated a series of meetings with network, independent TV, and officials of the National Association of Broadcasters "to serve as a catalyst for the achievement of meaningful self-regulatory reform."(13) The chairman's message was amplified in speeches before broadcast groups and in suggestions to the press that public hearings would be convened if voluntary action was not forthcoming.(14) The FCC's "suggestions" were adopted by the networks and were to be enforced through an industry code. The self-regulation program was adopted just in time for the FCC to report to Congress on the status of televised sex and violence.

In a lawsuit brought by writers and producers of television programs, the U.S. District Court for the Central District of California invalidated the policy. The court held that "the existence of threats, and the attempted securing of commitments coupled with the promise to publicize noncompliance . . . constituted per se violations of the First Amendment."(15) The court characterized the FCC's tactics as "backroom bludgeoning" and found them to be in violation of the First Amendment, the Communications Act, and the Administrative Procedure Act.(16) The district court opinion was vacated on appeal for other reasons, but the court of appeals agreed that "the use of these techniques by the FCC presents serious issues involving the Constitution, the Communications Act and the APA."(17)

Apart from the constitutional issues, the V-chip bills threaten to spotlight the spectacle of federal policymakers seeking to explain what they mean by "violent" or "offensive" programming. Their public statements thus far suggest that the legislators and other officials are unable to agree among themselves, leaving little prospect for consensus with the audience in whose interest they presume to act. For example, Sen. Paul Simon (D-Ill.) told a group of broadcasters that cartoons such as Tom and Jerry are too violent and that he "would like to see a little less of that." On the other hand, a film such as Schindler's List would be permissible as long as it was not aired "at eight o'clock when a lot of kids are watching."(18) Sen. Ernest Hollings (D-S.C.) complained about the violence in the CBS sitcom Love and War in which the characters throw popcorn at each other in a spoof on televised violence. Hollings reportedly was "disturbed by the ruckus" and aired a film clip of the program at a Senate hearing.(19)

Although it sometimes seems that every policymaker is a critic, few agree on how television programming should be improved. Former surgeon general Joycelyn Elders testified that presentations of violence should not be sanitized and should realistically portray the consequences--that "you really do bleed." Rep. Carlos Moorhead (R-Calif.), on the other hand, objected to programs in which "people are shot and get hurt and are writhing in pain" and concluded that "cowboy movies were better."(20) Sen. John Kerry (D-Mass.) has cited reality-based shows such as Cops as objectionable, while other lawmakers have declined to differentiate between the various types of violent programming. Sen. John Dan- forth (R-Mo.) reportedly has stated that "Shakespeare, Beavis and Butthead, Schwarzenegger--it's all the same."(21)

Conclusion

Contrary to the characterizations of its congressional sponsors, the V-chip is not a voluntary solution to the issue of televised violence, nor is the focal point of the debate the screening technology. The heart of the debate is whether the Constitution will permit the government to impose a rating system for television programming. The Supreme Court addressed that question with respect to films and repeatedly found that government rating requirements violate the First Amendment. The same conclusions are warranted in the case of television. Indeed, congressional efforts to coerce a voluntary rating system create more, not less, First Amendment concern, because broadcasters are subject to federal licensing requirements. As the Supreme Court has stated, a rating system will inevitably cause those subject to it to transmit only programs they know to be "safe." Accordingly, the Court has noted, "The vast wasteland that some have described in reference to another medium might be a verdant paradise" compared to a world in which media are judged according to a government rating system.

Notes

(1) Congressional Record, July 13, 1995, p. E1437.

(2) John F. Harris, "Clinton Backs Measures to Block Offensive TV," Washington Post, July 11, 1995, p. A1.

(3) Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 678-81 (1968).

(4) See, for example, Kingsley International Pictures Corp. v. Regents, 360 U.S. 684 (1959); Holmby Productions, Inc. v. Vaughn, 350 U.S. 870 (1955); Commercial Pictures Corp. v. Regents, 346 U.S. 587 (1954); Superior Films, Inc. v. Department of Education, 346 U.S. 587 (1954); Gelling v. Texas, 343 U.S. 960 (1952); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Police Commissioner v. Siegel Enter prises, Inc., 223 Md. 110, 162 A.2d 727, cert. denied, 364 U.S. 364 U.S. 909 (1960); People v. Kahan, 15 N.Y.2d 311, 206 N.E.2d 333 (1965); People v. Bookcase, Inc., 14 N.Y.2d 409, 201 N.E.2d 14 (1964); Hallmark Productions, Inc. v. Carroll, 384 Pa. 348, 121 A.2d 584 (1956); Paramount Film Distributing Corp. v. City of Chicago, 172 F. Supp. 69 (N.D. Ill. 1959). See also Winters v. New York, 333 U.S. 507 (1948), which struck down a standard seeking to protect children from presentations of "criminal news or stories of deeds of bloodshed or lust, so massed as to become vehicles for inciting violent and depraved crimes".

(5) Interstate Circuit, Inc. v. Dallas, 390 U.S. at 683-85.

(6) Action for Children's Television v. FCC, ___ F.3d ___, 1995 WL 384630 (D.C. Cir., June 30, 1995).

(7) Turner Broadcasting System v. FCC, 114 S. Ct. 2445, 2463-64 (1994).

(8) Ibid. at 2463, quoting En Banc Programming Inquiry, 44 F.C.C.2d 2303, 2312 (1960).

(9) Community Television of Utah, Inc. v. Wilkinson, 611 F. Supp. 1099 (D.C. Utah 1985), aff'd sub nom. Jones v. Wilkin son, 800 F.2d 989 (10th Cir. 1986), aff'd mem. 480 U.S. 926 (1987); Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985); Daniels Cablevision, Inc. v. United States, 835 F. Supp. 1, 9-10 (D.D.C. 1993); Community Television, Inc. v. Roy City, 555 F. Supp. 1164 (D. Utah 1982); Home Box Office, Inc. v. Wilkinson, 531 F. Supp. 987 (D. Utah 1982).

(10) See generally, Robert Corn-Revere, "Television Violence and the Limits of Voluntarism," Yale Journal on Regulation 12 (Winter 1995): 187.

(11) Ibid., p. 683.

(12) Community Service Broadcasting of Mid-America, Inc. v. FCC, 593 F.2d 1102, 1116 (D.C. Cir. 1978) (en banc).

(13) Report on the Broadcast of Violent, Indecent, and Ob- scene Material, 51 F.C.C.2d 418, 420 (1975).

(14) Writers Guild of America, West v. FCC, 423 F. Supp. 1064, 1098, 1105, 1117 (C.D. Cal. 1976), vacated and remand- ed on jurisdictional grounds sub nom. Writers Guild of America, West v. ABC, 609 F.2d 355 (9th Cir. 1979), cert. denied, 449 U.S. 824 (1980).

(15) Ibid., p. 1151.

(16) Ibid., p. 1142. The court also held that the networks and the NAB were liable for damages for acting in concert with the government to suppress speech.

(17) Writers Guild of America, West v. FCC, 609 F.2d at 365.

(18) Kim McAvoy, "Washington Watch," Broadcasting & Cable, March 7, 1994, p. 58.

(19) Hanna Rosin, "The Producers: Congress Fights TV Violence," New Republic, December 13, 1993, p. 12.

(20) Ibid.

(21) Ibid.

1995 The Cato Institute
Please send comments to webmaster