With the release of the Federal Trade Commission's (FTC) report alleging that Hollywood markets violent movies and video games to children, Congress has scheduled a hearing today on the issue, and Al Gore has said that he would give the entertainment industry six months to clean up its act or face unspecified "tougher measures."
To illustrate the measures some have proposed, consider legislation introduced last term by Sens. John McCain and Joe Lieberman, which would essentially force the creation of a uniform rating system. Experience shows that, once adopted "voluntarily," such ratings systems often become tools for censorship.
The McCain-Lieberman bill would "authorize" manufacturers and producers of video games, videos, television programs, movies, and music recordings to submit to the Federal Trade Commission a joint plan for labeling the violent content of such products.
So far, so good. Authorizing industry to get together, immunizing companies from antitrust liability, can make sense. But the McCain-Lieberman proposal also establishes specific requirements for this uniform rating system, substantially undermining its voluntary nature. If the industry fails to come up with its own rating system, the FTC would have to adopt such ratings within one year. Added together, the media end up in the same position as the frat boys in Animal House who, upon entering an unfamiliar bar, were asked by some considerably larger men if they minded letting those guys dance with their dates.
The call for a uniform ratings system recalls the V-chip experience, often mentioned as a precedent for uniform ratings. The 1996 Telecommunications Act required al l television sets manufactured after Jan. 1, 2000, to be able to block programs with a particular ratings code. The law gave the broadcasters an "opportunity" to establish "voluntary" ratings that would be reviewed by the Federal Communications Commission (FCC). If the FCC disapproved, it was required to issue guidelines for rating "sexual, violent, and other indecent material," which broadcasters had to transmit. Unsurprisingly, the heavily regulated broadcast industry, which relies on the FCC for licenses and merger approvals, adopted a rating system, now carried by every national program distributor but two.
With the V-chip, as with the proposed uniform ratings, the government's message is comply "or else." Yet the First Amendment prohibits the government from forcing speakers to surrender their free speech rights under threat of adverse state action.
What's wrong with a government-mandated (or strongly encouraged) labeling system? Doesn't the First Amendment support more speech, more information? Judging what entertainment is appropriate for what age is hard even within the same medium. Such determinations are highly subjective. A romantic, even if revealing scene, may be appropriate for a mature 16-year-old girl but not for an immature boy of the same age. A violent scene in Shakespeare's Henry V may be much different from a similar depiction in a movie seeming to glorify violence. Government mandates cannot take account of these differences without veering into forbidden censorship, yet making uniform judgments about such programs is next to impossible.
Applying a governmentally mandated ratings system across the very different media of movies, video games and music recordings further exacerbates the problem. How to compare, for example, the age-appropriateness of the Normandy landing in Saving Private Ryan with Eric Clapton's "I Shot the Sheriff"? Pictures are more powerful, but the songs seem more offensive. Or do they? How to distinguish between heavy metal songs dealing with suicide and "Billy Joe McAllister Jumped Off the Tallahatchee Bridge"? Such a rating system could not, in First Amendment parlance, be "narrowly tailored." It is also certain to be too vague.
Even worse than forcing speakers to label their speech are efforts to transform these advisory labels into mandatory government restrictions. Although truly voluntary information can be helpful to parents, having Big Brother government dictate in this area undermines family values and freedoms. For example, the McCain-Lieberman bill would fine companies $10,000 per day for selling unlabeled entertainment. It would also bar the sale of any of these games, programs, or recordings to anyone under the age specified on the label. Thus does a "voluntary" rating system become a tool for government coercion.
Courts have repeatedly found such back-end or piggyback censorship laws unconstitutional. For example, a federal court in Pennsylvania invalidated a ban on movie "trailers" for R-rated movies shown during G- and PG-rated films, calling the Motion Picture Association of America's ratings standards too "vague" to be law. Other cases have barred the use of the MPAA ratings to determine an acceptably "adult" movie. Of these cases, a Michigan federal court said: "It is well established that the Motion Picture ratings may not be used as a standard for a determination of constitutional status."
Certainly presidential candidates may use the "bully pulpit" to decry entertainment they deem inappropriate for teen-agers, as both have done this year. And, since the First Amendment does not protect fraud, the FTC may be warranted in examining whether anyone has engaged in deceptive practices. But First Amendment values counsel against calling for "voluntary" restrictions on speech which, all too often, turn into offers speakers can't refuse.
Daniel E. Troy is a Washington lawyer and associate scholar at the American Enterprise Institute.
Elliot Mincberg is vice president and legal director of People for the American Way.