H. Congress Considers Legislation To Limit Televised Violence

    In what has become a continuing ritual on Capitol Hill, bills were introduced to regulate violent programming on television.  In February 2001, Sen. Ernest F. Hollings (D-S.C.) introduced S. 341, The Children’s Protection From Violent Programming Act.  The bill essentially is a rewrite of S. 876, which passed the Commerce Committee by a 16-to-2 vote in the 106th Congress.  An identical bill, H.R. 1005, was introduced in the House by Rep. Ronnie Shows (D-Miss.).  Sen. Sam Brownback (R-Kan.), on the other hand, proposed legislation to create an antitrust exemption for media companies that engaged in collaborative efforts to reduce violent programming.

     If enacted into law, S. 341 would make the V-chip ratings system mandatory and would require that programs be specifically rated for “violent” content.  In addition, the Federal Communications Commission would be required to ban any distribution of violent programs before late night hours if it finds that the use of V-chips is “insufficiently effective” to protect children.  In particular, S. 341 would prohibit distribution of “any violent video programming not blockable by electronic means (e.g., V-chip) specifically on the basis of violent content during hours when children are reasonably likely to comprise a substantial portion of the audience.”

     S. 341 would require the FCC to conduct a rulemaking and to adopt rules within nine months of enactment.  In this proceeding, the Commission would be required to define the term “violent video programming” and to determine the hours in which “children are likely to comprise a substantial portion of the audience.”  The bill specifies that the term “violent video programming” includes matter “that is excessive or gratuitous violence within the meaning of the 1992 Broadcast Standards for the Depiction of Violence in Television Programs.”   

     Premium and pay-per-view cable and satellite programming would be exempt from regulation under the law.  The FCC also would be authorized to exempt “programming (including news programs and sporting events) whose distribution does not conflict with the objective of protecting children from the negative influences of violent video programming.”

     The bill also would require the FCC to study the effectiveness of the V-chip and to report its findings to the Senate Commerce Committee within one year of enactment.  The Commission would then be required to adopt rules “to prohibit the distribution of violent video programming during the hours when children are reasonably likely to be in the audience” if it finds at any time during this study that blocking violent programs using the V-chip is “insufficiently effective.” 

     Any rules adopted pursuant to this obligation would apply to all programming distributed by broadcast, cable, wire, microwave, or satellite (but not to programming distributed via “interactive computer service”).  S. 341 would establish severe penalties for noncompliance, including a fine of $25,000 per violation (per day) and possible license revocation.  It provides that the FCC “shall” revoke the license of any person found to have “repeatedly” violated the Act or any rule adopted thereunder.

     A far less regulatory approach was advocated by Sen. Sam Brownback, who introduced S. 124, the Children’s Protection Act of 2001.  The bill would exempt from federal antitrust laws any collaborative efforts by or among persons in the entertainment industry to develop and disseminate voluntary guidelines designed to: (1) alleviate the negative impact of television, movies, video games, Internet content, and music lyrics containing violence, sexual content, criminal behavior, or other subjects that are inappropriate for children; or (2) promote the telecast of material that is educational, informational, or otherwise beneficial to the development of children.

     S. 124 provides that the exemption shall not apply to any efforts that would result in a boycott of any person, or concern the purchase or sale of advertising.  The bill makes clear that it would not authorize government regulation of the content of media products beyond what already exists.

     Any attempt to regulate “violent” programming would face daunting practical problems (e.g., defining “violence” or “gratuitous violence”) and would face almost overwhelming constitutional obstacles.  Courts have been unwilling to approve the government’s authority to regulate violent expression differently from other protected speech. 

     For example, in Winters v. New York, 333 U.S. 507, 510-11 (1948), the U.S. Supreme Court invalidated a state law that curbed the publication of magazines “devoted principally to criminal news and stories of bloodshed, lust or crime.”  In doing so, the Court pointedly stated: “What is one man’s amusement, teaches another’s doctrine.  Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.” 

     Similarly, the U.S. Court of Appeals for the Seventh Circuit has noted that “violence on television ... is protected speech, however insidious.  Any other answer leaves the government in control of all the institutions of culture, the great censor and director of which thoughts are good for us.”  American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323, 330 (7th Cir. 1985), aff’d mem., 475 U.S. 1001 (1986). 

     In another case, in which restrictions on videotape rentals to minors were invalidated, the U.S. Court of Appeals for the Eighth Circuit held that violent video programming is entitled to “the highest degree of First Amendment protection.”  Video Software Dealers Association v. Webster, 968 F.2d 684 (8th Cir. 1992). 

     More recently, the Seventh Circuit held that an ordinance regulating minors’ access to violent video arcade games violated the First Amendment.  American Amusement Machine Association v. Kendrick, 244 F.3d 572 (7th Cir. 2001).  Writing for the court, Judge Richard Posner found that depictions of violence in video games are protected speech, and added: “To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.”  (See Chapter B, Section V.)

     Proposals to regulate televised depictions of violence on both cable channels and over-the-air broadcast stations face yet another hurdle.  The government has never had the same ability under the Constitution to regulate cable television content as it has claimed in the past for broadcasting. 

     The Supreme Court recently reaffirmed the proposition that the rationale for broadcast regulation is inapplicable to cable television.  United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 815 (2000).  See also Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637 (1994) (“the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation ... does not apply in the context of cable regulation”); Home Box Office, Inc. v. FCC, 567 F.2d 9, 28 (D.C. Cir.), cert. denied, 434 U.S. 829 (1977).