ACLU Comments to the Federal Communications Commission re: MB Docket No. 04-261, the Matter of Violent Television Programming and Its Impact on Children

Federal Communications Commission
Washington, DC 20554

Re: Comment on Notice of Inquiry, MB Docket No. 04-261; In the Matter of Violent Television Programming And Its Impact on Children

Dear Commissioner:

The ACLU submits these comments in reference to MB Docket No. 04-261, In the Matter of Violent Television Programming And Its Impact on Children. The Notice of Inquiry is long and fairly complex, seeking comment on many issues regarding violence and its effect on children, as well as the constitutionality of regulating depictions of violence. Our comments are limited to two issues: (1) the adequacy of research demonstrating the effects of violent programming; and (2) the constitutional issues in government regulation of violent programming.

The Notice of Inquiry is a response to a letter from thirty-nine members of the House of Representatives, Committee on Energy and Commerce, dated March 5, 2004. Congressional concern over media effects on children is hardly new. Each new medium is greeted with concern and efforts to regulate it on behalf of the children. The Internet is one of the most recent forms of information and entertainment causing Congressional concern, spawning several attempts to regulate the information that can reach children. Thus far, those attempts have failed, because they failed to adequately address constitutional concerns. Attempts to regulate violence in the broadcast medium are likely to meet the same fate.

Research has not proven that watching violence on television causes watchers to commit violence.

Congress often calls witnesses in hearings on media violence that opine their certainty that media violence causes violence. A dispassionate review of the data, however, demonstrates something far different.

The causes of violence are many and varied, and watching violence on television is not the sole, or even the most important factor. In September 2000, the Federal Trade Commission issued a report entitled “”Marketing Violent Entertainment to Children: A Review of the Self-Regulation and Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries.”” In Appendix A of that report, the FTC reviewed the available research on the impact of violence in the entertainment media. Regarding causation, the FTC noted that “”[m]ost researchers and investigators agree that exposure to media violence alone does not cause a child to commit a violent act, and that it is not the sole, or even the most important, factor in contributing to youth aggression, anti-social attitudes, and violence.””

The FTC noted that “”[b]roader research into the causes of youth violence has identified interacting risk factors, such as genetic, psychological, familial, and socioeconomic characteristics. Severe antisocial aggressive behavior appears to occur most often when more than one of these factors is present. The typical profile of a violent youth is one who comes from a troubled home, has poor cognitive skills, and exhibits psychological disorders such as anxiety, depression and attention deficit hyperactivity.””

Intuitively, the conclusion that media violence causes actual violence is incorrect. While violent media is allegedly on the rise, violence, and in particular youth violence, has declined according to FBI statistics. If media violence is a causative factor, one would expect to see a rise in violent crime, rather than a decrease.

Attachment 1 to these comments is an amicus brief filed on behalf of thirty-three media scholars in the case of Interactive Digital Software Ass’n v. St. Louis County in 2002, and is submitted with the permission of the authors.

The brief analyzes the studies and data in the area. Quoting psychologist Guy Cumberbatch, it notes, “”If one conclusion is possible, it is that the jury is not still out. It’s never been in. Media violence has been subjected to lynch mob mentality with almost any evidence used to prove guilt.”” The brief additionally discusses the positive benefits of fantasy violence, and concludes that “”[c]ensorship laws based on bogus claims that science has proved harm from violent entertainment deflect attention from the real causes of violence and, given the positive uses of violent fantasy, may be counterproductive.””

Courts that have examined the data have likewise not been impressed with the proponents of causation. Most recently, a federal district court in Washington struck down a law dealing with violent video games where the violence was perpetrated against a law enforcement officer. The proponent of the law was confident that it would be upheld because it was allegedly supported by research that showed that watching violence produces violent activities. The court, however, was unimpressed, and held the law unconstitutional. [Video Software Dealers Ass’n v. Maleng, No. C03-1245L (D.Wash. July 15, 2004)]

Assumptions about the negative effects of viewing violence ignore the positive societal value of violent programs that teach us important lessons about history or call attention to problems that society must address. “”Roots”” was a national television event of enormous educational value that necessarily showed the brutality of the institution of slavery. The made-for-television movie “”The Burning Bed”” was credited with bringing about reform of existing spousal-abuse laws and included what some would call disturbingly violent scenes. “”Saving Private Ryan”” was a powerful movie about the horrors of war, and included many disturbing scenes to illustrate that point.

While those who wish to censor violence claim “”[h]undreds of studies over decades document the harmful impact that exposure to graphic and excessive media violence has on the physical and mental health of our children,”” the fact remains that the basis for regulating media violence rests more on wishful thinking than hard data.

Regulating television violence is unlikely to survive constitutional scrutiny.

The Supreme Court has repeatedly stressed that “”above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”” Police Department v. Mosley, 408 U.S. 92, 95 (1972). Moral and esthetic judgments are “”for the individual to make, not for the Government to decree, even with the mandate or approval of the majority.”” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 818 (2000) [Emphasis added.]

The overriding justification for regulation of television violence “”is the concern for the effect of the subject matter on young viewers.”” Id. at 811. Clearly, any such regulation by the government would be content-based. Content-based speech restrictions are subject to strict scrutiny. Id. at 813.

Strict scrutiny requires that any content-based speech regulation must be narrowly tailored to promote a compelling government interest. If a less restrictive alternative would serve the Government’s purpose, it must use that alternative. Id.

The fact that the studies do not generally support the thesis that media violence causes actual violence has important implications for strict scrutiny analysis. To the extent that these studies provide the “”compelling government interest”” in regulating television violence, they are woefully inadequate. As the FTC noted, media violence is not the sole, or even the most important factor in youth violence. Thus, there is no compelling government interest in regulating such content.

The fact that a proposed regulation may not impose a complete prohibition on that show does not save the regulation.[1] “”The distinction between laws burdening and laws banning speech is but a matter of degree. The Government’s content-based burdens must satisfy the same rigorous scrutiny as its content-based bans.”” Id. at 812.

It is also unavailing to claim that the speech at issue is of minimal value. “”The history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly. It follows that all content-based restrictions on speech must give us more than a moment’s pause.”” Id. at 826.

“”Material limited to forms of violence is given the highest degree of First Amendment protection.”” Sovereign News Co. v. Falke, 448 F.Supp. 306, 394 (N.D. Ohio 1977), remanded on other grounds, 610 F.2d 428 (6th Cir. 1979), cert. denied, 447 U.S. 923 (1980). In Winters v. New York, 333 U.S. 507 (1948), the Supreme Court invalidated a law that prohibited the distribution to minors of any publication “”principally made up of . . .accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime.”” Id. at 508. Even though the Court saw “”nothing of any possible value to society in these magazines,”” the justices held that the material was “”as much entitled to the protection of free speech as the best of literature.”” Id. at 510.

The First Amendment not only protects expression that depicts violence; it also protects speech that advocates the “”use of force or violence.”” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927 (1982). In Brandenburg v. Ohio, 395 U.S. 444 (1969)(per curiam), the Supreme Court held that the government may not “”forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”” Id. at 447. The Court further stated that “”[a] statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from Government control.”” Id. at 448.

Applying Brandenburg, it is clear that television entertainment fails to meet this stringent test. Nothing in the data supports the conclusion that watching media violence will incite imminent violence. In the context of song lyrics thought to advocate minors to commit suicide, courts have found that expression enjoys full First Amendment protection. Walker v. Osbourne, 763 F.Supp. 1144 (M.D. Ga. 1991), aff’d, 958 F.2d 1084 (11th Cir. 1992 (per curiam), cert. denied, 113 S.Ct. 325, 121 L.Ed.2d 245 (1992). See also, Zamora v. Columbia Broadcasting System, 480 F.Supp. 199 (S.D. Fla. 1979); DeFilippo v. National Broadcasting Co., 446 A.2d 1036 (R.I. 1982); Olivia N. v. National Broadcast Co., 126 Cal. App. 3d 488, 178 Cal. Rptr. 888 (1981), cert. denied, 458 U.S. 1108 (1982). The same result is likely for television violence.

The foregoing discussion makes it clear that (1) violent material is protected under the First Amendment; (2) because regulation of violent content is a content-based regulation, it must endure strict scrutiny; (3) there is no compelling governmental interest in regulating media violence, and therefore, any such regulation will fail under the strict scrutiny standard.

Defining “”violence”” presents great constitutional difficulties.

For the FCC to regulate violence, it must define what constitutes permissible and impermissible depictions of violence. The law favors bright lines when regulating speech, so it is clear what is and is not permissible.

Vague laws and interpretations create traps for broadcasters and speakers because they are unsure, in the absence of a bright line, what conduct constitutes permissible depictions of violence from impermissible depictions of violence. Rather than have broadcasters act at their peril, the law prefers reasonable notice of what conduct will give rise to legal consequences, so that the speaker or broadcaster may act accordingly. Vagueness results in chilling of communications that may well NOT be impermissibly violent, simply because the cost to the speaker or broadcaster of being wrong is too great. Vagueness encourages silence rather than robust debate. “”Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone’ . . .than if the boundaries of the forbidden areas were clearly marked.””‘ Grayned v. City of Rockford, 408 U.S. 104, 109 (1972). Thus, any vagueness in the definition of permissible violence serves to chill protected speech.

As noted above, violence can often teach us important historical lessons, and illustrate societal problems existing today. Thus, the FCC would first have to define “”violence,”” then proceed to define what is permissible and impermissible depictions of violence. Just defining violence can be a daunting task. For example, the FTC in its report of September 2000 noted that researchers who study the effects of media violence are not even consistent in their definitions of “”violence.”” If researchers are unable to concur on an objective definition of “”violence,”” it is unlikely the FCC will be able to make such decisions in a way that will withstand constitutional scrutiny.

Assuming the FCC can provide an objective definition of “”violence,”” it must then proceed to the task of defining what is and is not permissible. For example, The Magnificent Seven is a movie about seven men who protect a village from violent marauders. Is their defense of the village “”good”” violence (allowable)? Is the depicting of violence of the marauders therefore not allowed? If so, then how does one place the violence committed by the Magnificent Seven in context? Prohibiting showing the violence of the marauders would seem to make the violence committed by the seven valiant warriors unreasonable. Or, is the movie left to only show a debate between the marauders and the seven warriors with no violence whatsoever? (And probably, no audience.)

While proponents of regulating media violence often claim they are only seeking to prohibit “”gratuitous”” or “”excessive”” violence, defining that is a lot like “”knowing it when you see it,”” which is insufficiently precise for constitutional purposes.

[1] The Notice of Inquiry discussed the possibility of a “”safe harbor”” in which violent shows would be aired only at certain times at which children were not likely to comprise a significant portion of the viewing audience. Thus, the material would not be absolutely prohibited.