A lot of people have weighed in on the FCC's report to Congress on televised violence, which essentially recommended that legislators give the FCC the necessary teeth so they can go after it. Peter Gutmann of Womble Carlyle Sandridge & Rice PLLC has given it a thorough going over. You'll find his thoughts through the click below.
Commentary
The Impact on Children of Violent Television Programming
April 27, 2007
To: Broadcast Clients
From: Peter Gutmann
The Federal Communications Commission has issued its Report exploring regulation of violent television programming.
Although only a set of recommendations, applicable to one medium and limited to a single subject, the Report could be viewed more generally as an indication of possible widespread future activity to control media involvement in other looming social issues, such as the impact of "junk food" ads on childhood obesity. Yet its influence ultimately may prove to be severely limited by flaws in its legal analysis.
The Report explores the relationship between media violence and aggression in children. It attempts to balance widespread concern among parents, health professionals and the Surgeon General against protections afforded by the First Amendment, and explores the efficacy of various regulatory approaches.
The Report responds to three issues posed by the US House of Representatives Committee on Energy and Commerce:
1. The negative effects on children caused by the cumulative viewing of excessively violent programming - - A review of extensive research literature, while not necessarily documenting a strict cause-and-effect relationship, led the Commission to find a strong correlation between exposure to media violence and three adverse effects: long-term antisocial behavior (including perpetration of violence in real life), desensitization to violence (regarding violence as acceptable behavior) and the fear of becoming a victim (leading to mistrust of others and self-protective behaviors). The Commission further notes two specific areas of recent research -- MRI brain mapping that documents a direct impact of exposure to media violence upon the area of the brain involved in learning and behavior; and contextual analyses that have isolated eight factors that increase the risk of viewers learning aggression and becoming desensitized to violent portrayals. The Commission concludes that there is strong evidence that under many circumstances exposure to violence in the media can increase children's aggressive behavior, even in the short term.
2. Constitutional limits upon the government's ability to restrict the broadcast of excessively violent programming when children are likely to be a substantial part of the viewing audience -- Although violent speech and depictions are protected by the First Amendment, the Commission notes that regulation is permitted when narrowly tailored to protect a substantial governmental interest. As with indecency, the Commission views the need to protect children from the effects of media violence to be compelling and explores several possible regulatory approaches. It tentatively favors time channeling, along the lines of the "safe harbor" currently in effect for indecent material, which is channeled to the hours between 10:00 p.m. and 6:00 a.m. The Commission notes, though, that any safe harbor for violence would be determined according to the viewing habits of younger children, whom research suggests are most at risk. Although the Commission concedes that time channeling is not the least restrictive remedy (since it would have the same impact upon adults who are not the object of protection), it finds that no other method is likely to be effective, in light of the pervasiveness of television and the unsupervised settings in which most children watch it.
Among alternative approaches, the Commission considers the V-chip to be ineffective, since few parents use it, only sets manufactured since 2000 include it and many parents feel that the voluntary TV rating system upon which the V-chip depends is inaccurate or too permissive. The Commission notes that even a mandatory rating scheme which addresses the shortcomings of the current system would not redress the limits of parental supervision. Recognizing that the vast majority of households obtain television programming through cable and satellite, the Commission suggests that an a la carte regime would enable viewers to buy only those channels whose content they approve, either by directly selecting channels or by opting out of undesired segments of a package.
3. A governmental definition of excessively violent programming harmful to children -- While the Commission suggests that an appropriate definition might be possible, it raises the substantial impediment of context, citing the graphic depictions of violence in classic literature, and even the Bible, and the difficulty of drawing a meaningful line between gratuitous or excessive violence and depictions that might be appropriate to teach moral lessons or fulfill other valuable social functions such as news reporting. The Commission appears willing to let Congress attempt to fashion an appropriate definition, but while taking note of several different possible approaches seems disinclined to do so itself.
Each of the Commissioners released a separate statement to confirm and explain his or her backing of the Report, with particular concern drawn from their own parenting experiences. Their common themes are the undisputed need to do something to control the level of televised violence to which children are exposed and the urgency of empowering parents to serve as a first line of defense through greater educational efforts. Among the few specific individual proposals, Chairman Martin encouraged the industry to reinstate a Family Hour at the beginning of prime time during which only programming appropriate for children would be aired. Commissioner Adelstein expressed disappointment that the Report contented itself with abstract observations rather than detailed discussions of legal considerations and the full realm of parental assistance tools that current technology makes available. (Commissioner Copps, though, approved the report as an appropriate survey and analysis of the problem and presentation of options.) Commissioner Adelstein further expressed skepticism over the efficacy of a la carte for parental control, since violence often cannot be isolated to specific channels. Drawing a correlation with the increased prevalence of depictions of violence over the past decade, he questioned how further concentration of ownership can be squared with the public interest. His proposed solution to the problem of media violence centers on education on several levels, from more extensive ratings to promoting media literacy in schools. One specific and rather novel recommendation -- requiring manufacturers to set new TVs to receive only TV-G-rated programming until the consumer resets it to opt in to other programming appropriate for their household.
Commissioner McDowell expressed disappointment that the Commission did not place greater emphasis on the legal pitfalls of imposing mandates. He also stressed the need to direct concerned parents to the variety of already available controls and blocking technologies that enable parents to make and exercise programming choices.
Commissioner Tate called upon the industry to rate programming more reliably and stated in passing that "the industry could voluntarily commit itself to reducing the amount of excessive violence viewed by our children." Although expressed as a mere hint by a single Commissioner, her suggestion may represent the most significant impact of the entire Report. The Commissioners, and presumably Congress, recognize children's exposure to televised violence and parental frustration as a severe problem but, so far at least, propose few practical solutions and seem disinclined to pursue any particular course of action. Perhaps the ultimate purpose of the Report is to send an indirect message from the Commission's "bully pulpit" to producers and distributors: either take advantage of this brief respite to relieve the pressure or face a further round of oversight in which restrictions become an increasingly attractive, unavoidable and realistic option.
In addition to the reservations expressed by the Commissioners themselves and the practical problems of implementing the Commission's few specific suggestions, the Report seems to skirt a considerable body of relevant legal precedent. By sweeping cable and satellite services within its scope, the Report ignores the distinction courts have consistently drawn for purposes of content regulation between subscription media and free over-the-air television. Indeed, in 2000 the Supreme Court rejected a safe harbor for cable indecency since federal law requires cable operators to block offensive channels at a customer's request; that, in turn, suggests that unless it can be established that the V-chip or other technology cannot function as a consumer-activated blocking device, then banishing violence to a safe harbor would be deemed an unconstitutional abridgement of adults' right to free speech. The emphasis upon a la carte subscription opportunities disregards prior Congressional rejection of that remedy. And it is utterly unclear how Congress can be expected to accept and successfully discharge the Commission's invitation to fashion a workable definition of excessive violence when the expert body to which Congress delegated that very task seems unable to do so.
As the Commission recognizes at the outset of its Report, the rising tide of concern over the exposure of children to excessive televised violence cannot be ignored. However, the extent to which the Report fully addresses the issues posed by Congress remains subject to considerable debate. In any event, at this point the Report is in the hands of Congress, where any further initiatives are likely to be considered.
