Violence Safe Harbor Could Affect ComSpeech

In a move that could bode ill for commercial speech, the Senate Commerce Committee passed a bill by Sen. Ernest F. Hollings (D-S.C.) that would extend the "safe harbor" concept to TV programming with violent content.

The bill, passed by a 19-1 margin, would require broadcasters to restrict violent programming to hours when children are less likely to be watching, i.e., after 10 p.m., unless broadcasters adopt a content-based ratings system.

The FCC already requires broadcasters to limit "indecent" programming to late night hours, with a "safe harbor" for kids between 6 a.m. and 10 p.m.

The idea of a "safe harbor" for liquor ads has already surfaced in connection with the Commission's proposed Notice of Inquiry for alcohol advertising.

Safe harbors for violence and indecency would give added precedential impetus to a safe harbor for liquor ads. If the idea takes hold, ads for a host of other products could be relegated to the graveyard shift.

Constitutional scholar Burt Neuborne told Congress, however, that a violence safe harbor would not withstand First Amendment scrutiny because it would be overly broad, too restrictive, and violence would be impossible to define objectively.

Media Institute Cites Danger to Commercial Speech if On-line Indecency Act Upheld

By Alan Moseley

In February The Media Institute and the Association of National Advertisers filed an amicus brief before the Supreme Court in Reno v. ACLU, arguing that this on-line indecency case could have serious implications for commercial speech.

The outcome, which many believe will decide the future of the Internet, will determine the constitutionality of the Communications Decency Act, passed in February 1996.

District courts in Pennsylvania and New York have already found the Act unconstitutional on First Amendment grounds. The Media Institute and ANA have urged the High Court to uphold this ruling.

Though Reno v. ACLU deals with the issue of on-line "indecent" speech and may seem unrelated to advertising, its implications for commercial speech are profound.

In their amicus brief The Media Institute and ANA point out that if the CDA is allowed to stand it will set a dangerous new precedent for censorship.

The brief contends that the CDA's "protect the children" rationale for limiting First Amendment rights could seriously undermine the constitutional value of free speech.

The language of the CDA would set a precedent allowing regulators free rein simply by invoking children's interests. This precedent would certainly be called upon by the foes of commercial speech, the brief states. At the heart of this question is the conflict that arises when a government claims it must restrict First Amendment rights to protect children.

As our world becomes increasingly characterized by a super-abundance of media sources, the task of keeping inappropriate communications away from children without simultaneously infringing upon the rights of adults is difficult, the brief acknowledges.

Proponents of the CDA and of many commercial speech restrictions would resolve this conflict by denying First Amendment protection to any speech the government deems harmful to children (however beneficial or protected it is for adults).

In their amicus brief The Media Institute and ANA remind the Court that it has a clear history of rejecting this solution. Finding it unacceptable for adults to be reduced to reading only what is fit for children, the Court has consistently sided in favor of protecting speech in decisions such as Sable, Bolger, and Butler.

The Media Institute and ANA point out that by validating the CDA's vague "children's welfare" argument the Court would seriously imperil all kinds of commercial speech.

As the Court made clear again last year in 44 Liquormart, truthful and nonmisleading speech about legal products merits constitutional protection.

Oral arguments for Reno v. ACLU were heard on March 19. The Court is expected to issue a decision in the case by the end of its term this summer.

Reno v. ACLU, 929 F. Supp. 824 (E.D. Pa. 1996), __ U.S. __ (No. 96-511).

Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y. 1996).

Sable Communications of Calif., Inc. v. FCC, 492 U.S. 1145 (1989).

Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).

Butler v. Michigan, 352 U.S. 380 (1957).

44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996).