Government officials seeking to regulate communicative materials that describe or depict violence were extremely active in 2000, despite the clear First Amendment protection that such materials enjoy and the prevalence of violence found in world literature going back to the beginning of time. During the year, the Federal Trade Commission completed a high-profile research effort on the marketing of violent entertainment materials to children, Congress took up several legislative proposals, and video game violence, in particular, attracted the attention of state officials.

    The year-long FTC study, issued in September 2000 and conducted in response to requests from President Bill Clinton and members of Congress, received considerable media attention. The report, "Marketing Violent Entertainment to Children: A Review of Self-Regulation and Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries," found "pervasive and aggressive marketing" of adult material to children.

    The study sought to answer two questions about the marketing of violent entertainment material: "Do the entertainment industries promote products they themselves acknowledge warrant parental caution in venues where children make up a substantial percentage of the audience" and "are these advertisements intended to attract children and teenagers?" It concluded that "for all three segments of the entertainment industry, the answers are plainly ‘yes.’"

    The report found that entertainment companies routinely target children under 17 for products that the industry agrees warrant parental caution due to violent content. The FTC also found that children under 17 are frequently able to buy tickets to R-rated movies without parental accompaniment, as well as purchase music recordings and electronic games with restrictive or parental advisory labels.

    Eighty percent of movies rated R for violence were marketed to children under 17, according to the report. Musical recordings with explicit content labels were uniformly meant for the under-17 set, it also found. Finally, 70 percent of the electronic games examined and featuring a "Mature" rating for violent content were targeted at youngsters. Most retailers, the FTC reported, made little effort to restrict sales to youth.

    In light of these findings, the Commission recommended enhanced industry self-regulation, but did not endorse further legislative activity by Congress because of sensitivity to the First Amendment concerns involved. Several members of Congress responded to the recommendation by urging the FTC to use its authority over "deceptive" or "unfair" marketing to regulate advertising practices for these entertainment materials.

    In response, FTC Chairman Robert Pitofsky wrote Senate Commerce Committee Chairman John McCain (R-Ariz.) that "significant and unsettled First Amendment issues exist that may affect the viability of an FTC action or remedy." Instead, Pitofsky reiterated the FTC’s endorsement of improved industry self-regulation. If that proves unsatisfactory, Pitofsky continued, "Congress should consider whether there are narrowly tailored legislative actions that could encourage more robust self-regulatory initiatives." The letter, while acknowledging relevant First Amendment concerns, unfortunately indicated that the law was less settled than it is and left open the possibility of a congressional role in industry self-regulation that the Constitution would not countenance.

    At least since its decision in Winters v. New York, 333 U.S. 507 (1948), the U.S. Supreme Court has recognized that materials thought to stimulate juvenile delinquency and having no real value other than as salacious entertainment are entitled to the full measure of expressive protection afforded by the First Amendment to the best of literature. For that reason, any attempt to regulate the marketing of such materials or to impose self-regulation by legislative act would run afoul of the Constitution’s free-speech guarantee. The materials covered in the FTC report -- movies, music, and electronic games -- all fall within the ambit of communicative materials that receive First Amendment protection. See Schad v. Mount Ephriam, 452 U.S. 61, 65-66 (1981).

    The findings contained in the FTC report may well have caused members of the Senate Commerce Committee to approve in September 2000, by a 16-to-2 margin, a perennial offering of Sen. Ernest Hollings (D-S.C.) designed to restrict violent television programming to hours when minors are likely to be asleep. Although S. 876 would authorize the Federal Communications Commission to set the hours during which violent programming could be aired, the FCC has previously established 10 p.m. to 6 a.m. as a safe harbor for adult-oriented programming. Those hours are likely to apply to violent programming as well, if the legislation succeeds.

    The bill is intended place violent television fare out of the reach of children and to supplement current law, which requires the installation of V-chip technology in most television sets to block undesirably rated television programming. Sen. Hollings believes the V-chip approach is ineffective. Such legislation is palpably unconstitutional because it is designed to prevent access to material fully protected by the First Amendment and will adversely affect the rights of adults, as well as older children. Similar flaws doomed the Communications Decency Act, a measure designed to limit youthful access to indecent Internet communications. Reno v. ACLU, 521 U.S. 844 (1997).

    While there were many other measures introduced aimed at "violent" television and other media, and candidates for the presidency spent considerable time on the issue, two participants in the presidential sweepstakes (from opposing parties) joined forces to sponsor the Media Violence Labeling Act (S. 2497).

    Sens. John McCain (R-Ariz.) and Joseph Lieberman (D-Conn.) introduced the bill to label all "audio and visual media products and services" that contain violence. Under the legislation, producers and manufacturers would be required to establish a uniform labeling system for "violent" content, subject to approval by the FTC. If the FTC was not satisfied by the labeling system established, it would be authorized to create one of its own. Prosecutions for violations would merit fines of up to $10,000 per day.

    Despite its attempt to fit its requirements under the rubric of "voluntary" standards to elude constitutional objections, the involvement of the FTC and the threat of significant fines pulls the cloak away from that fiction. Warning labels on expressive works constitute a form of compelled speech, which violates the First Amendment as much as censored speech. See Wooley v. Maynard, 430 U.S. 705, 714 (1977).

    While Congress was heavily focused on time periods and labeling requirements, state and local officials reserved much of their activity for violent video games.

    Tennessee approved the first piece of legislation aimed at video games. The measure started out as the "21st Century Media Market Responsibility Act," introduced in February 2000 by state senator Jeff Miller and state representative Dwayne Bunch. Their legislation would have imposed a state-approved ratings system for video games, as well as criminal penalties for those who sell violent material to minors. After state Attorney General Paul Summers offered an opinion that the bill was unconstitutional, Miller revised his proposal to add violent video games and computer software programs to the state’s definition of obscenity. The new bill, S.B. 2213, became Public Chapter Number 763 in June.

    In September 2000, Indianapolis became the first jurisdiction in the nation to enact a law prohibiting juveniles from using coin-operated video games deemed "harmful to minors." The city’s definition included games that "predominantly appeal[] to minors’ morbid interest in violence or minors’ prurient interest in sex," are patently offensive to prevailing community standards relating to minors, or lack "serious literary, artistic, political or scientific value as a whole" for those under 18. In doing so, the ordinance tracked "harmful to minors" laws aimed at material deemed obscene for youth.

    The impermissible graphic violence in the games was defined as instances where "characters are decapitated, dismembered, mutilated or maimed." Under the ordinance, arcades were required to separate and curtain off violent and sexually oriented games from those deemed more benign. The targeted games were required to sport warning labels as well. Violations of the ordinance were punishable by fines of $200 a day per violation. A business that accumulated three violations within a year could be forbidden from offering violent games altogether or have its amusement license revoked.

    Video game manufacturers immediately challenged the ordinance’s constitutionality and sought a preliminary injunction against its operation. Federal district court Judge David Hamilton denied the request, holding that the First Amendment does not forbid the state from restricting children’s access to the most extreme and graphic violent material when the state deems it harmful to minors. In doing so, the judge was unpersuaded by long-standing precedent that established the protected speech status of violent expression. American Amusement Machine Ass’n v. Kendrick, 115 F. Supp. 2d 943 (M.D. Ind. 2000). The ruling, however, was short-lived. About a week later, the U.S. Court of Appeals for the Seventh Circuit overruled Judge Hamilton and stayed operation of the ordinance while the challenge is pending.

    The Seventh Circuit’s action indicated a likelihood that the video game industry would prevail. But that did not prevent a New Jersey assemblyman, Leroy Jones, from introducing a similar measure in that state’s legislature on the premise that society needed to put an end to the "notion of violence as fun." Not all the state-level action was in the legislature. In April 2000, Illinois Attorney General Jim Ryan joined the fray by announcing an undercover action intended to end the sale of "ultraviolent video games" to minors.

    In his first foray into the issue, Ryan used young teenagers to purchase such games, rated "M" by the Entertainment Software Rating Board. All 32 attempts were successful. The games’ ratings indicate that the board considers them suitable for youth at least 17 years old. Among the games purchased were Grand Theft Auto and Mortal Kombat 4. Ryan urged companies to stop selling such games to minors, promised future sting operations, and pledged to research "alternative enforcement strategies if voluntary compliance is not forthcoming."

    The attorney general’s action was chillingly reminiscent of government action found unconstitutional by the Supreme Court in Bantam Books v. Sullivan, 372 U.S. 58 (1963). In that case, the Rhode Island Commission To Encourage Morality in Youth initiated a practice of notifying distributors that certain books or magazines that company sold had been found by the Commission to be objectionable and inappropriate for sale to minors. The distributors’ "cooperation" was sought with the threat that prosecutions for obscenity would be brought for those who did not "cooperate." The Supreme Court found such extralegal extortion to be an attempt to intimidate distributors and to suppress the sale of the disfavored books. This action by the Commission constituted an informal system of censorship that violated the Constitution’s free-speech guarantee.

    The idea that popular entertainments contribute to the corruption of youth is one that has been with us since the dawn of time. In the end, no law aimed at preventing the distribution of material to youth has been able to withstand the force of popular culture for long. Today, that force is given additional strength because of the First Amendment. Calling for restrictions may be a means toward obtaining greater political support but it has no friend in the Constitution.