In 1983, the scholar Willard Rowland published The Politics of TV Violence. The book’s title nicely summarized the nature of a debate that had been going on since the 1950s.
On one side were psychologists, politicians, and activists who believed that violent entertainment caused real-world harm, and who bolstered their theory with misleading claims for scientific proof of adverse effects. But whether or not science could ever prove such claims, these advocates were responding to genuine concerns on the part of many parents and mental-health professionals.
On the other side was the creative community, including most prominently the entertainment industry. Along with civil liberties organizations, they pointed out that scientific research on media violence had not proved the “causal hypothesis”; that violent content has always been a big part of art, literature, news, and historical narrative; and that government attempts to regulate it would drag us deep into a swamp of censorship.
Not much has changed in the 24 years since Rowland named the beast — politics. Yes, we now have video games, the Internet and hundreds of TV channels rather than just three or four, and arguably there is now even more blood and mayhem in entertainment, news and sports. But as the Federal Communications Commission demonstrated in the report it released last week, politics rather than reason continues to rule this debate.
Three main issues
This is evident from the way that the commission’s report fudges the three main issues it addresses: first, whether “TV violence” causes harm; second, how to define it; and third, how to regulate it without violating the First Amendment.
On the first, empirical question, although the FCC report bends over backwards to present the case for scientific proof of harm, the agency also, in the interests of fairness, summarizes the main arguments debunking it. So, for example, it quotes researcher Mike Males (whose comments reproduced a brief that I wrote several years ago on behalf of 33 media scholars in a violent-video-games censorship case).
Males had noted that “researchers have used vastly different examples of violent content in the cartoons, film clips, or games that they study”; that “generalizations about all violence from these differing examples are not trustworthy and fail to account for the many different contexts in which works of art or entertainment present violence”; that “experimenters have not always made their nonviolent video clips equivalent to their violent ones with respect to other variables”; and that aggressive attitudes or ‘cognition’ are not the same as aggressive behavior. … proxies for aggression in lab experiments range from dubious (e.g., making noise blasts; hitting ‘Bobo dolls;’ ‘killing’ characters in a video game) to ludicrous (e.g., popping balloons).”
The FCC report quotes but never confronts these and other critiques of the claims for scientific proof of harm, but it does phrase its conclusion about the research in cautious terms. Following the lead of the Federal Trade Commission’s more thorough report on the issue in 2000, the FCC concludes only that exposure to media violence “can” increase aggressive behavior in children — “at least in the short term.”
Well, many things can, or cannot, increase aggressive behavior. But, in any event, says the FCC, many parents, advocates and psychologists are concerned about possible ill effects, and this is apparently enough to justify government action. Those parents, advocates and psychologists may well have good reason for their concern. But let’s not pretend there is a scientific basis for it.
The second issue that the agency fudges is the definitional dilemma. The report recommends that Congress come up with a constitutionally acceptable definition of “excessive violence,” and then give the FCC power to censor it, as it now censors “indecency,” by requiring that all programs meeting the definition be broadcast only after 10 p.m. But other than vague references to possibly aggravating factors discussed in “the scientific literature,” and to the need to recognize that violence is part of many artistic and literary classics, the FCC gives Congress no help in crafting a definition that would put producers on notice of what to cut, or that would otherwise pass constitutional muster.
This, of course, leads to the third problem: the report’s woeful failure to address the tough — indeed, probably insurmountable — First Amendment problems with a law directing the FCC to censor TV violence. The report neglects to mention that since 1948 when the Supreme Court in Winters v. New York struck down a state law banning publications describing “deeds of bloodshed, lust, or crime,” the courts have consistently invalidated censorship laws targeting violent content. (Commissioner Jonathan Adelstein does discuss this case law in his separate opinion.)
In the past few years, nine federal courts have struck down laws restricting minors’ access to video games containing “inappropriate” violence, “ultra-explicit” violence, and other definitions that states or localities have tried. The definitions have been imaginative and varied, but all have fallen short of the fair-notice requirements of the First Amendment. Several of these judicial decisions specifically found that testimony by psychologist Craig Anderson asserting scientific proof of harm (cited by the FCC in the empirical section of its report) was not credible.
The Pacifica precedent
The most that the FCC does with the legal issue is rely on the 1978 Supreme Court case of FCC v. Pacifica, which approved the agency’s censorship of “indecency,” and on a case in the federal court of appeals that, following Pacifica, said indecency “occupies a relatively low position in the hierarchy of First Amendment values because it is of ‘slight social value as a step to truth.’” If “properly defined,” the FCC asserts, “excessively violent programming, like indecent programming” would have “slight social value as a step to truth.”
These references to the agency’s indecency regime are hardly persuasive. Not only have the courts treated violent content far more protectively than the sexual or “excretory” content needed for an indecency finding, but the FCC’s track record on indecency is both pitiful and scary. Recently, it decided that a Martin Scorsese documentary on the blues was indecent because expletives uttered by musicians and other interviewees were not artistically necessary. Two First Amendment challenges to the agency’s shifting, subjective, and politically driven indecency regime are now pending in the 2nd U.S. Circuit Court of Appeals [Fox Television Stations, Inc. v. FCC (# 061760)] and the 3rd Circuit [CBS Corporation v. FCC (# 063575)].
Expanding the FCC’s power to include decisions about when violent content is “excessive,” harmful to youth, not artistically necessary, or otherwise of “slight social value as a step to truth” would be a truly calamitous waste of tax dollars.
It may be that all this is window-dressing and, true to a long tradition in the politics of TV violence, the real agenda is to strong-arm the industry into more self-censorship, including a return to the “family viewing hour,” or perhaps even a total “voluntary” ban on violent content during prime time. There are intimations of this in both the report and the separate opinions of Commissioners Martin, Tate and Adelstein.
There are also suggestions, from Commissioners Adelstein and Copps, that the structure of the industry — large media conglomerates interested primarily in maximizing profits from “lowest common denominator” programming — are part of the problem, and that the commission should get serious about reversing media consolidation. Contrary to the arguments made by some scholars and lawyers, structural regulation should not pose First Amendment problems. A less-dramatic proposal of the same type is that cable operators be required to offer “à la carte” options to their customers, who could thereby not only save money but avoid receiving channels they don’t like, or don’t want their children to watch.
The FCC’s report makes useful suggestions about the à la carte option, but why does it fail so dramatically in addressing the issues that Congress asked it to address? Probably for the same reason Congress sent the request in the first place. As Rowland understood more than two decades ago, it’s about politics — not law, not psychology, and certainly not any serious attempt by policymakers to grapple with the roots of violence in our society.
None of the strategies the FCC discusses — rating systems, à la carte deals, or direct censorship — will increase safety in our schools or reduce violence in society. Coming barely two weeks after a disturbed man murdered 32 of his fellow students with firearms he should never have been allowed to acquire, the release of this report sadly underscores the dangers of letting political grandstanding get in the way of socially responsible (and constitutionally permissible) policymaking.
Having said all this, it remains true that the issue of media violence continues to have political traction because many people are justifiably concerned about the state of popular culture. Possible responses to that concern that do not violate our First Amendment rights include structural regulation — from à la carte cable offerings to breaking up the media empires that profit from violent entertainment — and censorship-free funding of more and better nonprofit media alternatives.
In the end, however, violent entertainment will probably never be squelched. One of the ironies of media-violence politics is that despite the periodic brouhaha, not many viewers would willingly give up their favorite law-and-order shows, horror movies, bruising sports events, or action-hero extravaganzas.
Marjorie Heins is founder of the Free Expression Policy Project and author of Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Youth (2001), which included a chapter on the “media effects” of violence. Heins also authored an amicus brief on behalf of 33 media scholars in the Interactive Digital Software Association v. St. Louis (2002) case.