My name is Roger Pilon. I am vice president for legal affairs atthe Cato Institute, where I hold the B. Kenneth Simon Chair inConstitutional Studies and am the director of Cato's Center forConstitutional Studies.
I want to thank you Mr. Chairman for your invitation to testifythis morning on the subject of "Rating the Entertainment Ratings:How Well are They Working for Parents, and What can be Done toImprove Them?" You have also asked me to address the issues raisedin the June 19, 2001, letter to you from the National Institute onMedia and the Family. The concerns raised in that letter havecontributed, I gather, to the bill you co-sponsored and introducedin the Senate on April 26, 2001, S. 792, the "Media MarketingAccountability Act of 2001, about which I will also comment.
At the outset, let me say that I share many of the concernsraised in the Institute's letter, concerns that you have raisedover the years about the quality of some of the entertainment thathas been produced and distributed in America for some time,especially as it bears on the development of children. Obviously,this is a land of many tastes. Given our relative freedom and themarket system it entails, producers will arise to satisfy thosetastes. That can coarsen our culture, giving rise to"entertainment" that some would prefer not to have in their midst.Yet the very freedom that enables that fare to arise also enablesgreat and often controversial works to flourish. The issues hereare ancient, of course. Sex and violence have been the stuff ofliterature and entertainment from our earliest days. The onlyquestion, therefore, is what to do about it. And on that, I partcompany with the proposals raised in the Institute's letter,especially as they might entail governmental initiation oroversight, and with the provisions contained in S. 792.
In so doing, however, I want to make it clear that I am not hereto represent or to speak on behalf of any part of the entertainmentindustry. I am speaking only for myself, although I share, ofcourse, the general outlook of my colleagues at the Cato Instituteon the virtues of individual liberty and limited, constitutionalgovernment. In fact, it is a concern for that kind of governmentthat will animate my remarks this morning and that so troubles meabout the proposals before the committee. To go to the heart of thematter, I would ask, without elaboration for the moment, given thelimits imposed on Congress by the Constitution and by the FirstAmendment, why are these hearings even being held? And why are theybeing held before, of all things, the Committee on GovernmentalAffairs? The regulation of the entertainment industry of a kindthat is proposed in S. 792 is not only thought by most to beunconstitutional but is also not what one ordinarily thinks of as a"governmental affair" like management, rule in the District ofColumbia, or campaign finance. It is an odd concern, at least.
Having noted my interest in these hearings and my basic concernabout the proper role of government in the regulation of theentertainment industry, let me turn now, Mr. Chairman, to thequestion immediately before the committee and to the issues raisedin the National Institute's letter. Regarding your question, I amafraid I do not know precisely how well entertainment ratings areworking for parents, nor does anyone else, I submit. I am struck,however, by the implicit presumption of the National Institute tobe speaking for "parents," as if parents spoke with one voice onthe matter. Thus, their letter claims that "Parents and childdevelopment experts disagree with the current [media] ratings." Nodoubt some do. At the same time, annual national surveys conductedsince 1969 by the Opinion Research Corporation of Princeton, NewJersey, show growing parental satisfaction with the voluntary movierating system in place since 1968. The latest poll, conducted inSeptember, revealed that 81 percent of parents with children underage 13 found the ratings "Very Useful or Fairly Useful" as a guidefor deciding what movies children should see. Only 17 percent foundthe ratings "Not Very Useful." Those numbers would seem to undercutthe claims of parental dissatisfaction made by the NationalInstitute.
More precisely, however, the National Institute claims that thevoluntary rating systems now in place for television, video games,motion pictures, and music fail to identify sensitive materialaccurately, consistently, or in a way that helps parents. And thereare too many rating systems, their letter says. Thus, they call forthe creation and implementation of an independent ratings oversightcommittee composed of parents, media industry representatives,academic media and child health researchers, public healthrepresentatives, and child advocates. The committee would create auniversal ratings system, would monitor media ratings for accuracy,and would conduct research to ensure valid ratings.
Although the National Institute asks only for "your support andinfluence," Mr. Chairman, including possibly "calling for hearings,issuing a statement to media executives asking for these changes,or convening a summit to discuss these issues," one imagines thatthey would like more. Government grants to support the proposedresearch come immediately to mind, of course, but more extensive"public-private partnerships" may be in the offing as well,including commissions with coercive legal powers. Quite apart fromsuch possibilities, however, one also wonders why, if the concernsare as well-founded as they purport to be, there is not moreprivate support to see them implemented. Why, that is, does theNational Institute feel it necessary to come to Congress with itsconcerns? There is nothing, after all, to stop the people whosigned the June 19 letter to you from establishing their own,privately funded committee to accomplish everything the letter setsout as being worthy of accomplishing. Our history is replete withexamples of private self-help, of course, as de Tocquevilledocumented early in that history. Just what is the government anglein this case?
Let me set that question aside for the moment, however, and lookmore closely at the National Institute's underlying assumptions. Inclaiming that current ratings are both inaccurate and inconsistent,they imply that a more "accurate" and "consistent" system ofratings is not only desirable but possible. That implication isproblematic at best. To be sure, the different media have differentrating systems. But why should we assume that music should be ratedby the same standards as, say, video games? And how could thoseratings possibly be made consistent across the different media?Given the subjectivity that is inherent and inescapable in applyingany rating system, consistency could be hoped for only if therating were somehow centralized-performed by a single body orcommittee, as envisioned by the National Institute. But at currentannual production levels, that "single" body would have to reviewsome 650 films that are rated each year, some 2000 hours per day ofTV programming (the equivalent of 1,000 movies every day, andgrowing), 1,300 computer and video games (forget web sites), and40,000 music releases. To the extent that any committee undertooksuch a task, it would, as a practical matter, have to do so throughmany subcommittees, which would reintroduce all the purportedproblems of inconsistency. The National Institute's proposal soundsfine until you start to think about it.
But similar concerns arise over the claim of inaccuracy in theratings. True, one can always raise questions about the "accuracy"of a particular rating; given the inherent and inescapablesubjectivity of the enterprise, however, it is the very idea of"accuracy" that in the end is called into question. Just what doesit mean to say that a film or a CD should have been given a higheror a lower rating? How many "sexual events" or "violent acts," andof what kind, given the larger context of the work, enter into thatjudgment? The very idea of "accuracy" in such judgments isillusory. This is not mathematics. It isn't even science.
Yet the National Institute's letter speaks of "valid ratings"and of "validity research known to the scientific community." The"science" on that subject, however, is anything but settled,nowhere more so than with the assumption implicit in the letterabout the connection between media violence and violent behavior.In your bill, Mr. Chairman, you make that assumption explicit whenyou list among your congressional findings the contention that"Most scholarly studies on the impact of media violence find a highcorrelation between exposure to violent content and aggressivebehavior." With all due respect, that is false. In a recent reviewof the extant English-language research on the subject, Dr.Jonathan L. Freedman of the Department of Psychology of theUniversity of Toronto concluded that "the research does not provideconsistent or strong support for the hypothesis that exposure tomedia violence causes aggression or crime." In fact, he continues,"fewer than half (in some instances far fewer than half) of thestudies provide evidence that supports a causal effect, while manyfind evidence against such an effect. … Moreover, studiesoutside the laboratory produced very weak results and none foundconsistent support for a causal effect." Correlation is notcausation, of course, but neither is it the stuff of seriousscientific inference. The cock's crowing is highly correlated withthe sun's rising; yet only the cock would think he had caused thesun to rise.
But there is a deeper and often unnoticed problem with theassumption underlying the National Institute's letter. Thebehaviorism implicit in their efforts to correlate media violencewith violent behavior has the unsavory result of taking that whichis distinctly human-namely, choice-out of the equation. Thestimulus-response model of behavior may be appropriate for studyinglower life forms. When employed to study human behavior, however,it has the distinct disadvantage of denigrating us as human beingswith a capacity to choose. To some extent, of course, we are all"influenced" by our environments. But even those who are influencedto action by what they see are held responsible for their actionsonly because they have independent choice. The irony of the causalmodel is that it denigrates us in the name often of upliftingus.
Let me conclude, Mr. Chairman, with a few legal comments on S.792, which would prohibit as an unfair or deceptive practice, underregulations established and enforced by the Federal TradeCommission (FTC), the targeted marketing to minors of adult-ratedmedia-providing a "safe-harbor" for producers or distributors whoadhere to a voluntary self-regulatory system established undercriteria drawn by the FTC. The first legal question one wants toask about any proposal of that kind, of course, is where in theConstitution Congress finds its authority to act. The secondquestion, having determined that the end is authorized to Congress,is whether the proposed means are necessary and proper-proper innot running afoul of any the guarantees afforded by theConstitution.
As we all know, since the notorious Court-packing scheme duringthe New Deal, the first question has been all but unasked. In thepast few years, however, the Supreme Court has begun to ask thatquestion, reviving the doctrine of enumerated powers in theprocess, albeit still in a very limited way. Nevertheless, whethera given end is proper to Congress-whether such a power was everdelegated to Congress-is a question very much back in play today.Thus, even before we get to the First Amendment, we can ask whetherCongress has any authority to regulate the entertainment industry.Plainly, Mr. Chairman, the authors of S. 792 believe thatCongress's power to do so, like so much else that Congress doestoday, falls under its power to regulate "commerce among thestates." And, even under Chief Justice Rehnquist's readings of theCommerce Clause in the 1995 Lopez and the 2000 Morrison decisions,Congress can be said to have power to regulate the"instrumentalities" and the "channels" of interstate commerce-thus,presumably, the marketing of media.
But as Justice Thomas has noted in concurrence in both thosecases, the Chief Justice's reading, albeit a bit narrower than thatof the past 60 years, is a far cry from the original understandingof the Commerce Clause. The clause was written to enable Congressto ensure the free flow of goods and services among the states,especially in light of state efforts at the time to erectprotectionist barriers to free commerce. It was not meant to be theequivalent of a general police power of a kind that belongs to thestates, enabling Congress to regulate anything for any reason,provided only that the thing "affected" interstate commerce. Infact, the Court over the years has repeatedly said that there is nogeneral federal police power, even as it has allowed the commercepower to be used as such, in effect, for more than 60 years. Thus,properly read, with reference to its function, Congress's commercepower kicks in only if necessary to ensure the free flow ofcommerce among the states, particularly in light of state actionthat might impede that commerce. There is nothing here to indicateany such warrant for Congress to act. In fact, commerce in media isflourishing, and no states are impeding it.
But what about the "deceptive practices" that S. 792 addresses?Does Congress not have power to regulate those? Again, theregulation of fraud and other such practices is a function,quintessentially, of the general police power that belongs to thestates. Only if such regulation were to be so uneven orinconsistent as to threaten or impede the free flow of commercewould the federal commerce power kick in. That is how a functionalaccount of the clause, the original understanding, would limit itsscope and hence would limit federal power. Had the ratifyinggeneration thought they were giving Congress the kind of regulatorypower Congress regularly exercises today, the Constitution wouldnever have been ratified.
Yet there is something almost as disturbing here as the absenceof congressional authority to enact S. 792. It is the bill'scharacterization of targeted marketing to minors of adult-ratedmedia as an "unfair or deceptive practice." Just how is that"unfair or deceptive"? Where is the deception? The movie or CD,say, is rated. It is not parading under false colors. It is justbeing marketed, presumably, to an inappropriate audience, one forwhich it is not suited. That is not unfair or deceptive. No one isbeing defrauded. Plainly, this is an effort, using linguisticlegerdemain, to recast a police power action of a kind that belongsto the states-the protection of minors-as a regulation of commerceand hence, under the modern reading of the Commerce Clause, as anend authorized to Congress. If there is any deception, it is inthis bootstrapping effort.
We come, finally, to the second constitutional question, whetherS. 792, even if grounded in constitutional authority, runs afoul ofany constitutional guarantees. As a practical matter today, ofcourse, it is the First Amendment that poses the greatest risk tothe bill. And the drafters appear to have understood that, for theyhave provided a "safe-harbor" for producers and distributors-otherthan the one set forth explicitly in section 102 of the bill.Section 101 declares illegal the targeted marketing to minors ofadult-rated media. In section 106, however, we find "adult-rated"defined as "a rating or label voluntarily assigned by the produceror distributor of such product, including a rating or labelassigned pursuant to an industry-wide rating or labeling system."Thus, it would appear that a producer or distributor could removehimself from the coverage of the act, if enacted, simply by notrating his product. The bill's incentives, therefore, are perverse.If enacted, the measure would encourage less rather than moreinformation. Out of simple self-protection, producers anddistributors would be encouraged to avoid labeling theirproducts.
Yet even that reading may not be accurate, for the subordinateclause in the above definition introduces an ambiguity. On anatural reading of the definition, a rating "voluntarily" assignedby a producer "includes" one assigned pursuant to a labeling systemto which he "voluntarily" subscribes. In other words, "voluntary""includes" voluntary membership or operation under such a system.An alternative reading, however, would enable such a system to"assign" a label, whether or not the producer subscribed to thesystem. That, of course, would not amount to a voluntary assignmentand so would not seem to be "included" under the term"voluntary."
But even on the more natural reading, the speech of the produceris burdened and chilled. For whatever reason, a producer may wantto label his product-perhaps to hype it. If he does so, however,the bill imposes a cost and hence burdens his speech by forcing himunder its provisions. It thus acts also to chill his speech.
Yet the explicit "safe-harbor" of section 102 is also coercive,even though it purports to be "voluntary." That section says thattargeted advertising of adult-rated products will not be treated astargeted advertising "if the producer or distributor responsiblefor the advertising or marketing adheres to a voluntaryself-regulatory system" established under criteria written by theFTC. This is a classic example of coercion, little different thanthe mugger's proposition: "Your money or your life-you choose." Youhand over your money "voluntarily" only because the alternative isworse. This is "voluntary" self-regulation only under Orwellianprinciples.
In sum, this appears to be one of those classic examples of aproblem searching for a solution in the wrong place-government. TheFounders established a limited constitutional government on theunderstanding that not every problem required a governmentsolution. The problem here is occasional irresponsible behavior-howoccasional is open to debate. The solution, as with most examplesof irresponsibility, is moral suasion. Will that solve the entireproblem? Of course not. But it is far better, as the history ofoverregulation has demonstrated in spades, than introducing theheavy hand of government where it does not belong-morally orconstitutionally.