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Do Kids Need Government Censors?

Friday, February 1, 2002

Most american parents want to restrict children’s access to entertainment glamorizing violence, sex, drug use, or vulgar language. Fashioning public policies toward that end is not, however, a simple task. Ideally, purveyors of “mature” entertainment (like retailers of other legal but morally dubious products enjoyed by many adults, such as alcoholic beverages, tobacco, and gambling) would voluntarily adhere to a code of advertising ethics. Self-regulation would obviate the need for burdensome government regulation. In practice, threats of legal restriction have always played an important role in persuading “morally hazardous” industries to observe codes of conduct and to avoid aggressive marketing to young people. Specifically, self-regulation on the part of makers of entertainment products (for example, movies and comic books) has allowed Americans to shield children and adolescents from “mature” content with minimal recourse to government censorship.

This tradition may, however, be about to change. In April 2001, Sen. Joseph Lieberman introduced the Media Marketing Accountability Act (mmaa) — a bill to prohibit the marketing of “adult-rated media,” i.e., movies, music, and computer games containing violent or sexual material, to young people under the age of 17. The mmaa would empower the Federal Trade Commission to regulate the advertising of entertainment products to young people. The proposed legislation, if enacted, would inject a federal agency into decisions about the marketing of movies, music, and electronic games — and thereby potentially into decisions about what sorts of movies, music, and games are produced. Lieberman’s hearings, well publicized at the time, provided a valuable forum for exposing entertainment industry practices to public scrutiny. Even so, the expansion of the federal government’s regulatory powers in the area of entertainment and culture is undesirable compared to the traditional, and still workable, system of industry self-censorship.

Calling in the ftc

The most recent round of public controversy over mass entertainment began in the mid-1980s, when, at a Senate hearing, Elizabeth “Tipper” Gore (wife of the then-freshman senator) voiced alarm about sexually explicit and violent lyrics in popular teenage music. For this she was subsequently ridiculed by many self-styled civil libertarians and defenders of the music industry. Nonetheless, public concern over violence and vulgarity in entertainment revived mightily following the June 1999 shooting murders at Columbine High School in Littleton, Colorado — murders committed by teenaged boys steeped in various forms of violent entertainment. After that event, President Clinton asked the ftc to investigate the marketing of such entertainment to young people. In the fall of 2000, Sen. John McCain, chairman of the Senate Commerce Committee, presided over hearings on the resulting ftc report, “Marketing Violent Entertainment to Children.” After extensive study of the marketing plans of the movie, music-recording, and electronic-game industries, the ftc concluded that media companies do aggressively market products with “mature” content to children, and that these practices “frustrate parents’ attempt to protect children from inappropriate material.”

The irresponsibility of the entertainment industry came up again as an issue during the 2000 presidential campaign of candidates Al Gore and Joseph Lieberman. At the time, many commentators dismissed their references to the issue as empty campaign rhetoric (the Washington Post reported that Gore had first telephoned industry executives to reassure them). But these skeptics proved wrong. In April 2001, Gore’s former running mate introduced the mmaa. The bill (co-sponsored by Sen. Hillary Rodham Clinton) defined “targeted marketing” to minors of such material as “an unfair or deceptive” practice.

The text of Lieberman’s bill cites the findings of the September 2000 ftc report. At that time, the ftc recommended that the entertainment industries: (1) establish or expand codes that prohibit target marketing to children and impose sanctions for noncompliance; (2) restrict the access of children to age-inappropriate entertainment at the retail level by requiring identification or parental permission; and (3) work to increase parental understanding of the ratings and labels. A second ftc report, made public in April 2001, found that matters had not much improved since the first report. Only the electronic game industry had agreed to adopt a recommended marketing code.

McCain’s and later Lieberman’s hearings generated negative publicity for the entertainment industry. The hearings also pressured industry representatives to publicly defend their marketing practices, and, in many cases, vow to improve them. Movie industry leaders, for example, promised to stop using children and underage teenagers to test-screen films with R-ratings and to stop showing trailers for R-rated films at movies rated for general audiences. Critics of the entertainment industry, however, were not satisfied with the promises made by entertainment executives. According to ftc testimony in July 2001, the movie and electronic game industries had improved their practices following the September 2000 report, but there was much room for further improvement. Most unsatisfactory of all, the music recording industry had made “no visible response” to criticism.

Lieberman’s proposed legislation would appear to inject real menace into public consideration of the issue. The bill empowers the ftc to formulate standards for entertainment advertising and to impose steep fines ($11,000 per day) for violations. Some entertainment executives claim to fear that Lieberman’s legislation will empower the ftc to formulate a code of conduct and content guidelines for all entertainment media. In fact, one important consumer advocacy group, the National Institute on Media and the Family (nimf), argues that the existing self-regulatory system, in which the movie, music, and electronic games industries each have their own separate voluntary system of ratings, should be replaced by a new uniform rating system, monitored by an independent oversight committee. It is also worth noting that the ftc itself, in its testimony before the House Commerce Subcommittee on Telecommunications in July 2001, did not seek regulatory authority over the marketing of entertainment products and in fact argued, in view of the First Amendment protections enjoyed by these products, that industry self-regulation was the best approach.

In a sense, however, these worries are unrealistic. In practice, federal regulatory content standards are unlikely — and the entertainment industry knows it.

The First Amendment

To be sure, legal restrictions on the access of young people to certain forms of entertainment are workable and do exist in many countries. In the United Kingdom, for example, the independent British Board of Film Classification makes judgments about the age-appropriateness of individual movies and sometimes demands cuts in problematic scenes in order to achieve a younger age-rating. Although the board’s judgments are not legally binding, the power to license the exhibition of films does rest with local authorities, which generally follow the decisions of the national board. Overall, the British regulation of entertainment tends to be more rigorous than the American; for example, it is a legal offense for theater owners to admit the underaged to movies rated for older patrons (although small children are admitted to mild PG-rated fare if accompanied by parents). In 1984, Parliament passed a Video Recordings Act, which imposed criminal penalties for the circulation of videos without a rating certificate and for distribution of videos to anyone below the age indicated in the rating.

Historically, there were numerous attempts at the local level in the United States to enact something like the British approach to film ratings, but these uniformly failed in the face of opposition from the federal judiciary. For example, Freedman v. Maryland (1965) ruled that local film licensing boards are instruments of “prior restraint,” and required them to obtain judicial findings of obscenity as a condition of denying exhibition licenses. In 1968, the Supreme Court invalidated a Dallas, Texas ordinance which prohibited anyone under 16 from viewing movies labeled “not suitable for young people” on the grounds that the law’s standards were “too vague” (Interstate Circuit v. Dallas).

Obscenity laws have been of little use to American parents concerned about age-inappropriate entertainment, even though the Supreme Court has ruled (Roth v. United States, 1957) that obscenity is not entitled to constitutional protection — and even though some material which is not obscene for adults can still be considered obscene as to minors (Ginsberg v. New York, 1968). In the first place, legal obscenity has to do with references to sex and excretion; it does not even pertain to much of the content that contemporary parents find objectionable, such as violence, drug use, and occultism. Second, as a practical matter, it is very difficult to prove that any film, recording, or other product meets the legal test for obscenity, since the material must be not only “patently offensive,” but “utterly without redeeming social value.” And unless proven legally obscene, “speech” about sex (including dramatic portrayals and music lyrics) enjoys First Amendment protection. Nor have the outcomes of recent local obscenity prosecutions been encouraging; juries tend to defer to “expert” witnesses who find artistic merit in Robert Mapplethorpe photographs and 2 Live Crew lyrics. For all these reasons, most parents will continue to consider much entertainment to be highly unsuitable for their children even though that entertainment cannot technically be defined as “obscene” under current law.

Why voluntary aged-based ratings?

Even in the 1930s, when America was a much more conservative country (at least in terms of popular culture) than it is today, public outrage over the emphasis on sex and crime in the movies led not to censorship by the federal government but to a system wherein Hollywood regulated itself. The movie moguls created their own Production Code Administration (pca) in 1930, supervised first by William Hays and later, in 1934, with more seriousness, by Joseph Breen.

The so-called Hays Code presumed that movies were far more influential than books and that standards of cinematic morality consequently needed to be much stricter than those governing novels and other literature. The code forbade any mention at all of certain controversial topics, such as “illegal drug traffic,” “sex perversion,” “white slavery,” and “miscegenation.” The code did allow for the depiction of some crime and some immorality (such as adultery), but stipulated that no presentation should encourage sympathy for illegal or immoral acts.

The American film industry has a long history of self-censorship for the simple reason that offending audiences has never been in its self-interest. Business concern for the bottom line, not moral sensitivity, dictated the willingness of the film industry to regulate itself. For example, during the 1920s and 1930s, Hollywood seldom produced mass market movies with dignified portrayals of black Americans. Scenes of racial mixing on terms of social equality were avoided because they were known to offend white Southern audiences. By the 1940s, however, tentative efforts at more dignified portrayals could be seen, and soon the industry was censoring itself to avoid offending black Americans. The naacp’s threat of a boycott caused Walt Disney to withdraw Song of the South (1946), a partly animated musical based on the Uncle Remus stories. The naacp found the film’s depiction of happy slaves demeaning. For a long time, this feature was available only on a Japanese laserdisc, and even today one can obtain a video version only from Britain or Germany.

The Hays Code assumed that adults and children would and should share the same entertainment at the movie theater. But the code applied only to American-made films, and in the 1950s and 60s, Hollywood found itself losing box office share to “sophisticated” European imports. In 1968, the movie industry abandoned its code of conduct approach and replaced it with a system of age-based ratings devised by Jack Valenti, then (as now) president of the Motion Picture Association of America.

The history of the comic book industry also illustrates the effectiveness of industry self-regulation in shielding the young from “mature” content. Public concern about crime and horror comics in the 1950s led to congressional hearings sponsored by Sen. Estes Kefauver, Democrat of Tennessee. The hearings did not come close to proving that lurid comics caused juvenile delinquency, but in the face of negative publicity an embarrassed comic book industry opted for self-regulation. The system was voluntary, but the fact that most retailers chose not to display or sell comics without the industry seal of approval meant that objectionable comics soon languished, unable to reach their intended market.

Television greatly reduced the popularity of comic books among children, but the comic book medium did not die. Instead, a new reading audience for “adult” comics came into being. In the 1970s and 80s, as graphic violence became more acceptable in movies and television, the industry rewrote its code to be more permissive. In September 2001, the largest comic book company, Marvel, released several new lines (Fury, Alias, and U.S. War Machine) completely without code approval. The new titles, which allowed for profanity, sexual situations, and violence, were big sellers. But they are not sold at newsstands, airports, or convenience stores; they are distributed through specialized comic book stores which tend to be patronized by older purchasers (average age: 25).

An age-based classification system has also been employed since 1994 by the video and computer games industry, which has an Entertainment Software Rating Board (esrb). The board classifies products as EC (everyone including young children), E (everyone), T (teen), M (mature — may not be suitable for persons under 17), and AO (adults only).

The music recording industry as such does not employ an age-based ratings system, but an increasing number of recording artists do (at their own discretion) attach a parental advisory label to their products. Some music performers, in an effort to reach the broadest possible market, now even release their albums in two versions, one “explicit” and the other “clean”!

Why age-based ratings at all?

Age-based ratings provide a useful tool for parents who want to monitor entertainment. Children are far more impressionable than adults and far less able to distinguish fantasy (or satire) from reality. At the same time, adults can and should contemplate themes which children find disturbing (and even the Bible contains some narratives that are not appropriate for young children). Moreover, age-based ratings, as opposed to outright bans of “strong” material, allow our society to avoid the problem raised in Butler v. Michigan (1957), a Supreme Court decision which overturned a state obscenity law on the grounds that it would “reduce the adult population . . . to reading only what is fit for children.”

In Britain and Canada, as mentioned, age-classification systems are enforced by law. This is an effective technique where admission to movie theaters is concerned, and has the added benefit that extensive regulation of advertising to young people becomes unnecessary. One has to doubt, however, the effectiveness of legally enforced age restrictions with respect to such media products as games, videos, and music recordings used at home. Unless parents are especially vigilant, it is likely that young people will encounter these products at the homes of older friends, and it is also easy for an underage consumer to arrange purchase of the product through an older friend.

In any case, the British and Canadian approach is unlikely to pass constitutional muster in the United States, and it is not clear that legal prohibition is superior in all respects to the traditional American system of industry self-regulation. In principle, parents know better than anyone else the level of maturity of their children and are therefore best equipped to judge the appropriateness of books, television shows, music, movies, and games. By way of example, even an acknowledged “children’s classic” such as Huckleberry Finn (which has frequently been the object of efforts at banning) should not be turned loose on the young without careful adult guidance. An older child can understand the ironic artistic purpose behind the eponymous narrator’s constant use of a now-taboo racial epithet; a younger or less mature child might be enticed (innocently or otherwise) to mimic the speech of Twain’s characters.

As practiced in America, voluntary age-based ratings systems are not censorship; they are more akin to the consumer information labeling that we now take for granted on food products and clothing. Even in the pornographic video business, marketers have found it useful to distinguish between the hard-core and soft-core stuff. ftc regulation was not necessary; the pornography marketers themselves discovered the utility of classifying their products and so advising their customers.

Although age-based ratings are not censorship, they can, with the cooperation of entertainment producers, retailers, and parents, effectively restrict the dissemination of offensive materials to young people. Thus far, of the three main segments of the entertainment media business, the game industry has been the most cooperative in this respect, and the music industry the least.

There are several plausible explanations for why the game industry has in recent years behaved more responsibly than other branches of the entertainment industry. Perhaps most important is that most games are quite expensive, around $40 or more, so that parental involvement in purchasing is highly likely. A second factor might be that the Columbine murders focused public attention on the possible negative effects of violent games, thereby putting a spotlight on the industry.

The “oppositional” music industry

If all branches of entertainment, the music recording industry has been least responsive to parental concerns and most resistant to self-regulation. The best explanation is that “oppositional” teenage music, although far from the whole of youth-oriented recordings, accounts for a significant proportion of sales. Many music performers who cater to the adolescent audience view themselves as anti-establishment rebels, and this self-image is inseparable from their marketing strategies. Irreverence and defiance seem grown up and sophisticated to many teenagers.

What comic books were to young people in the 1930s and 40s, popular music is to today’s generation of adolescents. Although many adults focus on television as a baleful influence on the younger generation, this is just a sign of how out of touch with teenagers they are. Survey evidence indicates that, in terms of both hours logged and overall meaningfulness, music listening has an importance in the lives of many adolescents far beyond what most parents understand. Parents can easily monitor what their children watch on television, but most adults find it impossible to listen to teenage “noise” on the radio or cd, let alone distinguish among the many varieties, such as album rock, alternative, grunge, world beat, progressive rock, salsa, house, technopop, etc. Yet involvement in a particular sub-genre of music is often an important aspect of adolescent social identity. Conversance with popular culture seems to enhance a teenager’s social contacts and status, and contrariwise, the young person who remains aloof from pop music is likely to be excluded from many teen peer groups.

One should not assume that music with lyrics featuring profanity, violence, casual sex, drug use, and so on is itself the cause of negative behaviors. Adolescence is a time of life when young people must adjust to startling discoveries about sex, violence, and other potentially troubling aspects of the real world. Just as many adults enjoy watching movies about gangsters, with no inclination toward becoming gangsters themselves, many teenagers find in their music a safe way to satisfy curiosity about the darker aspects of life. The key to understanding this segment of the entertainment industry is that “mature” content actually signifies the opposite, a puerile interest in everything so taboo that parents will not discuss it with their children. The good news is that the teenager who does not die first (or become pregnant or addicted to drugs) almost always grows out of it. On the other hand, undoubtedly some troubled teenagers focus on music with morbid, aggressive, profane, or vulgar lyrics because it seems to legitimize their impulses — in which case the music may indeed reinforce their predispositions. Many different forms of music are popular with teenagers, so preoccupation with “oppositional” music should draw parental attention — which does not mean that underlying problems are addressed by simply prohibiting a form of music.

Movies were controversial from their inception. Comic books were born innocent, but aroused parental concern when they began to exploit themes of violence and sex. Scantily-clad women and heads dripping blood came as a shock to adults who had thought comics were about funny talking animals. Similarly, coarse, violent, misogynistic lyrics (to say nothing of offensive references to race, religion, and sexual orientation) prevalent in some youth-oriented music came as a shock to many parents raised on the “outrageous” music of their day, 1950s rock-and-roll.

Back in 1985, when Tipper Gore, together with several other Washington wives of politicians, founded the Parents Music Resource Center (pmrc), their new organization successfully drew public attention to the problematic content of rock lyrics, particularly those of heavy metal groups with names like Twisted Sister, Black Sabbath, Judas Priest, etc. In the view of the pmrc, it was a straightforward issue of consumers’ rights that parents know about references to sex, drugs, alcohol, suicide, violence, and the occult in their children’s music. The pmrc proposed that music companies affix warning labels to their products to alert parents about questionable content (for example, V for violence, X for sexually explicit lyrics, O for occult).

Defenders of the music industry predictably accused the pmrc of advocating censorship. This was unfair — no censorship is involved when retailers determine that they do not wish to be in the business of selling products that are morally offensive either to themselves or to their customers. But music industry executives were right to foresee that, once recorded music was rated, at least some major retail marketers (such as Wal-Mart) would refuse to carry products with “explicit” content.

The charge of censorship was unfair, but the music industry was right that there were real problems with the pmrc approach, which viewed any reference to a topic, regardless of how the topic was treated, as cause for a warning label. Thus, an anti-drug song would call for a warning sticker the same as a song that promoted drug use. This was one of the problems with the Hays Code and the comics code as well. For years, movie executives shied away from The Man with the Golden Arm, until Otto Preminger made this powerful anti-drug drama and successfully released it without pca approval. In 1970, after receiving a letter from the Department of Health, Education, and Welfare, Marvel Comics incorporated an anti-drug story into its popular Spider-Man series, but had to release the titles without code office approval.

Another difficulty that arises with attempts at age-classification of music lyrics is the problem of double meanings, which have a long tradition in songwriting. John Denver testified to good effect at the 1985 hearings that his song “Rocky Mountain High” about the beauty of nature had been unfairly banned by some radio stations out of misplaced zeal against drug references. But those responsible for age-ratings will have to face such issues as what Marilyn Manson means when he sings about someone who “powders his nose.” Most parents will not have a problem with children hearing Bessie Smith sing: “Nobody in town can bake a sweet jelly-roll like mine” — but of course she meant something by that, too. The enterprise of routing out double entendres can quickly turn ridiculous, seeming to prove the truth of Lenny Bruce’s observation: “There are no dirty words; there are just dirty minds.”

In response to the 1985 Commerce Committee hearings, and because of a wave of local prosecutions (utilizing charges of obscenity) against retailers, in 1990, the Recording Industry Association of America (riaa) announced that it had designed a “Parental Advisory/Explicit Lyrics” label, with a distinctive logo. But whereas the movie industry’s trade association, the mpaa, rates individual movies, the riaa created no guidelines or recommendations and left the use of the labels to the discretion of the individual recording companies. “This consistent reference to parents is offensive. We are all parents,” said riaa president Hilary Rosen. “I don’t want to tell parents whether Chuck Berry is singing about his ding-a-ling.”

The pmrc was disturbed by the lyrics of heavy-metal rock groups, but many parents would soon be concerned by the violence and sexual vulgarity in a new form of teen-age music: hip-hop, or as it is sometimes (though not accurately) called, rap music. And with this new form of music, the question of morality in music became entwined in questions about racism and double standards.

Sen. Lieberman did not invite Russell Simmons, a longtime hip-hop entrepreneur and chairman of the Hip-Hop Summit Action Network, to testify at his hearings. But Simmons attended anyway and managed to speak. Simmons complained that Lieberman had unfairly targeted hip-hop as objectionable. In the New York Times, he wrote: “hip-hop is an important art form, really the first new genre of music to emerge since rock and roll. . . . To deny its power and artistic merit in an attempt to silence it is downright dangerous.” Criticism of violent, profane, and vulgar music lyrics, Simmons implied, betrays unconscious racism because black performers are the main creators of “gangsta rap” and hip-hop.

Simmons was wrong to equate Lieberman’s proposed legislation with censorship; the Media Marketing Accountability Act does not ban any form of entertainment — it calls for age rating and restricts advertising to minors. But Simmons still had a point worth considering. Many parents upset by hip-hop would not be similarly disturbed by traditional songs, such as “Whiskey in the Jar” (an Irish song which celebrates drinking) or “Tom Dooley” (a Civil War-era song that became a popular hit for the Kingston Trio in the early 1960s), which recounts a murder. One of my own favorite pieces of recorded music, which I have listened to in the company of my children, is “Mattie Groves,” performed by the Beers Family. The ballad is a tale of adultery and murder in medieval Scotland — but it conveys the dreadfulness of sin and violence, and I consider it a highly moral work. Of course, some parents would be equally disturbed by these songs (just as some are offended by the “occult” in a children’s classic such as The Wizard of Oz). Many parents believe that evil has enormous inherent attractiveness, so that any depiction of wicked conduct is morally dangerous. But should the law require the makers of all such recordings and videos to affix a warning sticker and submit their advertising plans to federal supervision? In answering “no,” I am of course invoking aesthetic discriminations that might elude committees and with which surely an “objective” legal-regulatory system is ill-equipped to grapple.

There is some basis for optimism that the value of voluntary labeling has become apparent even to the music industry. A hip-hop “summit” held in July 2001 brought recording company executives together with established black organizations, such as the naacp. The three-day conference (at which Minister Louis Farrakhan spoke and urged the musicians to display more “responsibility”) led to considerable reflection within the hip-hop community. Industry representatives at the summit agreed on a uniform standard for the “Parental Advisory” label, which should be one size, plainly displayed, and not removable, on the cover art of the recordings and visible on all advertising as well. The riaa continues to insist, however (as noted critically in the ftc’s December 2001 report), on its right to aggressively market labeled music to young people.

Teenage taste in popular music tends to be fickle. It happens that at this time one of the most popular music styles, hip-hop, is dominated by African-American performers. But parental concern about inappropriate lyrics extends far beyond hip-hop; in fact it began with heavy-metal music, which was (and is) performed and consumed almost exclusively by white males. In any case, not all hip-hop music contains lyrics disturbing to parents, nor is it consumed exclusively by African-Americans. The issue of race is essentially a distraction; no race has a monopoly on supplying — or consuming — unwholesome entertainment of the kind that concerns many parents.

The tobacco model

Is it turns out, the music industry was right to argue that any concession to parental interest in labeling would stimulate additional demands for regulation of entertainment. One of the most well-respected citizen groups concerned with media, the National Institute on Media and the Family (nimf), has paid considerable attention to media ratings, and is dissatisfied with the current system. The nimf, along with other children’s health advocates, has argued for an independent ratings oversight committee and a unified media ratings system to cover movies, television programs, music, and games.

Some politicians and children’s “advocates” seem entranced by the prospect of identifying the entertainment industry in the public mind as the successor to Big Tobacco as a threat to the health of young people. In the late 1990s, Sen. Sam Brownback, Kansas Republican, helped persuade the American Medical Association to assert a causal connection between violent entertainment and individual acts of aggressiveness and violence. In fact, an impressive list of highly respectable organizations, such as the National Institute of Mental Health, the National Academy of Sciences, the American Psychological Association, and the American Academy of Pediatrics, are on record agreeing that exposure to media violence presents a risk of harmful effects on children. These claims in turn help support litigation that seeks tort damages from the producers of violent entertainment. For example, families of victims of the Paducah, Kentucky school shooting filed lawsuits against entertainment companies on the grounds that their products created a mindset that led to murder. Thus far, lawsuits of this nature have been dismissed in court, but, then, so were tobacco suits — until they weren’t.

Perhaps because stridently “moral” discourse seems less acceptable in America today than it once was, many essentially moral concerns tend to be packaged and presented in terms of concern for danger to “children’s health.” And there is no shortage of experts whose research alleges that violence (and sometimes sex) in entertainment presents proven health hazards analogous to cigarette smoking. According to one Harvard researcher, Dr. Michael Rich, “The findings of hundreds of studies, analyzed as a whole, showed that the strength of the relationship between television exposure and aggressive behavior is greater than that of calcium intake and bone mass, lead ingestion and lower iq, condom nonuse and sexually acquired hiv, or environmental tobacco smoke and lung cancer, all associations that clinicians accept and on which preventive medicine is based.”

Of course, some experts have come to the opposite conclusion about the effects of media on behavior. The September 2000 ftc report acknowledged that there are abundant studies on both sides of the issue. But politicians are apt to cite experts with whom they already agree. For example, according to Charlie Condon, South Carolina’s attorney general, “what we have here is a virtual replay — only much worse — of the damage the tobacco industry did to our children. But instead of Joe Camel, Hollywood is using Eminem, South Park, Doom and people such as film director Quentin Tarantino to seduce children and subvert parents.” The solution, according to Condon, is that “we state attorneys general must hit Hollywood where it hurts — in the court and in the pocketbook.”

It is possible that, even if passed, the Media Marketing Accountability Act would be found unconstitutional in the first federal court to hear a challenge to it. In one recent case, Lorillard v. Reilly (2001), which involved efforts by Massachusetts to restrict the advertising of tobacco products, the Supreme Court stated that retailers and manufacturers have a strong First Amendment interest in “conveying truthful information about their products to adults.”

Supreme Court decisions in recent years have tended to expand protection for commercial speech, even when the advertising in question is for products recognized as presenting moral hazards. But the purveyors of such products sometimes — as a matter of good public relations — prefer to withhold advertising. For example, R.J. Reynolds in a 1998 court settlement with 46 states agreed to end its Joe Camel cigarette advertising. The alcoholic beverage industry also follows voluntary industry advertising codes, although, in view of the extent of the teenage drinking problem, some consumer watchdog groups believe that stricter curbs on industry advertising are needed.

Unfortunately, “marketing to children” is not a clear, unambiguous concept. Many adults watch children’s programming, such as “The Wonderful World of Disney,” and more than two-thirds of the audience for mtv consists of viewers aged 18 or older. The ftc objected to the industry practice of showing movie trailers for R-rated movies before G- and PG-rated movies. But as Valenti testified, “the R-rating does not mean ‘Adult-Rated’ — that is the province of the NC-17 rating. Children are admitted to R-rated movies if accompanied by a parent or adult guardian. The rating system believes that only parents can make final decisions about what they want their children to see or not to see.” A Pennsylvania statute banning the practice of showing previews for R-rated features at G- and PG-rated movies was ruled unconstitutional by a federal court. Some industry executives responded to complaints about movie trailers for R-rated movies by asking where the regulation of advertising would stop — should R-rated movies be removed from newspaper ads? But Jack Valenti eventually responded to congressional criticism by promulgating new mpaa guidelines, including: “Each company will request theater owners not to show trailers advertising films rated R for violence in connection with the exhibition of its G-rated films. In addition, each company will not attach trailers for films rated R for violence on G-rated movies on videocassettes or dvds containing G-rated movies.” This suggests that parent groups have enough clout to persuade the entertainment industry that it should “voluntarily” refrain from advertising R-rated movies in certain venues.

The mpaa ratings board has assigned age-based ratings to almost 17,000 films. According to Valenti, “While there is criticism about the ‘accuracy’ of the ratings of individual films, never once have there been accusations faulting the integrity of the system.” This claim is mildly amusing, since the membership of the ratings board is an industry secret, and individuals sign secrecy agreements before serving. Even so, a recent Washington Post story featured an interview with a former member of the board who, violating his secrecy agreement, complained of an idiosyncratic, inconsistent, and autocratic rating assignment process.

Valenti, representing the movie industry at the Senate hearings on the Media Marketing Accountability Act, argued convincingly that the proposed legislation would likely jeopardize the voluntary ratings system on which the ftc regulatory regime is supposed to be based. As Valenti noted, “the bill immunizes those producers who do not rate their films.” “Why,” he asked, “would sane producers continue to submit their films for voluntary ratings when they could be subjected to fines of $11,000 per day per violation?” A good question. What seems likely is that Lieberman’s approach requires the creation of a different, compulsory ratings system staffed not by unaccountable, anonymous industry insiders but by “members of the entertainment industry, child development and public health professionals, social scientists and parents,” as one witness recommended.

If children’s “health” is the primary concern, there is no reason to expect such an independent board to stop with rating entertainment for violent content when there are so many other “threats” to the health of young people and so many pressure groups concerned with such health. What would certainly follow would be calls for adding a ratings category to restrict the depiction of tobacco and alcohol products. There would also be pressure to address other social problems as well, such as eating disorders among teenage girls allegedly promoted by unrealistically slender actresses. Health-oriented raters might consider “safe sex” scenes with condoms more youth-appropriate than sexual depictions without them. Racial, religious, and sexual stereotyping also present a threat to the health of children, to be dealt with accordingly.

In Britain and Canada, where age rating has legal force, all kinds of issues, such as cruelty to animals, racial slurs, and even “presentation of controversial lifestyles,” can be grounds for restriction. But at least in those countries, local authorities have the final say, an important check on the system lacking in Lieberman’s plan to give the ftc regulatory authority.

The bull in the (video) shop

Representatives of the entertainment industry have deployed two serious arguments against the mmaa: first, that violence in entertainment does not cause young people to behave violently; and second, that the proposed legislation excessively empowers government to control speech and art through control over the marketing of entertainment.

Entertainment executives are right that media messages have a complex, indirect relationship to behavior. Consequently, our society wisely vests control over the entertainment choices of young people in their parents using common sense, not in a clumsy, heavy-handed government bureaucracy relying on the latest, and soon to be controverted, social science research. A sense of proportion is needed if we are to reinforce parental authority without attempting to supplant it. Self-regulation is a system in which all citizens assume civic responsibility. The mmaa, by contrast, assumes that young people are helpless victims of the advertising and media to which they are exposed. Much of the rhetoric supporting the legislation is uncomfortably reminiscent of the campaigns directed at tobacco products, junk foods, and guns. One collateral result is likely to be encouragement for lawyers to sue entertainment companies.

What cannot be achieved by the heavy hand of the law can be achieved by industry self-regulation — but this requires the cooperation of the regulated. Lieberman’s bill does not seem well thought out. It would punish companies that rate their material, but no law can compel the companies to rate their material satisfactorily in the first place. What is involved here obviously calls for much more complex judgments than, for example, listing the alcohol content of a beverage or the nicotine content of a cigarette. If the music or movie industry resists rating because it leads to punitive fines, the next step would have to be rating by quasi-official “independent” boards whose judgments would then be utilized by ftc regulators. Self-censorship would give way to federal regulation. Congress will have performed its usual sorry trick — enact a vague regulatory regime and then settle back as lobbying interest groups funnel money to Washington politicians in hope of gaining favorable treatment.

In the past, families, schools, and churches were the primary institutions socializing American youth; today it seems that they share this function with media industries, advertisers, and celebrities. It is easy to understand the appeal of Lieberman’s approach to parents frustrated by the prevalence of violence, sex, profanity, allusions to drugs, etc. in movies, music, and games. Only extreme civil libertarians would argue that parents should not be socially supported in their efforts to monitor and influence the entertainment choices of their children. The mmaa empowers the ftc only to regulate advertising to young people, so the legislation would not truly establish a system of federal censorship over entertainment. But it would bring us much closer to such a system than we have ever come in our history. Averting this outcome is in everyone’s interest, but the entertainment industries themselves have the greatest responsibility to do so — through voluntary observance of codes of conduct acceptable to American parents. If debate on the mmaa (despite the proposed legislation’s many flaws) helps encourage this observance, it will have served a useful purpose.

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