The Federal Communication Commission’s April 24 report, “Violent Television Programming and its Impact on Children,” failed to answer the questions originally posed by 39 congressmen and presented in its 2004 Notice of Inquiry. In fact, the trade publication Communications Daily (4/27/07) reported that the commission failed even to consider — and the commissioners did not ever discuss — the central questions presented. Instead, the report passed along a few new questions for Congress to answer as it contemplates possible legislation in this area.
Back in 2004, as Congress was actively seeking ways to increase the FCC’s ability to punish the broadcast of indecent and profane speech, Joe Barton, R-Texas, sent a letter on behalf of House Energy and Commerce Committee members asking then-Chairman Michael Powell to conduct an inquiry on the separate issue of “excessively violent broadcast television programming.” Among other things, the inquiry sought comment on the following questions:
Are there legal constraints on either Congress or the Commission to regulate violent programming?
After much delay, the just-released report drew a number of conclusions and made recommendations for legislative action. It did so, however, without answering even one of the questions set forth in the inquiry. This prompted skeptical statements from Commissioners Jonathan Adelstein (who concurred in part with the report) and Robert McDowell.
Commissioner Adelstein compared the Report to “a financial consultant who advises a client that he could win the lottery.” His point: the Report “discusses an optimal conclusion but does not provide a complete analysis or a sound plan.” Commissioner McDowell similarly discounted the Report as “brief” and “cursory,” saying “I fear that our Report may fall short of [the congressional] request.”
If anything, Commissioner Adelstein’s and McDowell’s concerns about the lack of substance were understated. Briefly, here are a few of the areas in which the report is seriously deficient.
Effects of violent programming
Others will provide a more complete discussion of this issue, which is hotly disputed. But since the answer to this question serves as the predicate for the FCC’s legislative recommendations, it is important to note at the outset the circularity of the commission’s reasoning.
The report’s conclusions rely heavily on a 2001 surgeon general report, which stated that “a diverse body of research provides strong evidence that exposure to violence in the media can increase children’s aggressive behavior in the short term.” However, that same report added that that “many questions remain regarding the short- and long-term effects of media violence, especially on violent behavior.” And it added: “it is not yet possible to describe accurately how much exposure, of what types, for how long, at what ages, for what types of children, or in what types of settings will predict violent behavior in adolescents and adults.”
Citing the equivocal nature of the surgeon general’s analysis in its 2004 Notice of Inquiry, the FCC asked those commenting on it to provide “any additional recent research in the field.” Among many other questions, it asked whether “watching Wile E. Coyote fall off a cliff in a cartoon [has] more or less an impact on a child's psyche than reading about Hansel and Gretel forcing a witch into a hot oven in Grimm's fairy tales?”
Such questions were never answered. Moreover, the commission’s report concedes: “[V]ery little new information on the issue was submitted into the record of this proceeding.” But this did not prevent the FCC from converting the questions it raised in 2004 into conclusions in 2007. By failing to address this issue in a serious and truly responsive manner, the commission undermined any possible policy recommendations regarding which programs Congress should endeavor to restrict.
Defining violent programming
The report did the same thing with respect to the definition of violent programming. As Commissioner Adelstein acknowledged: “The difficult question is precisely which violent programming, if any, the government can regulate in the interest of protecting children. That question — the most challenging Congress faces — is never answered here.”
Despite the fact that the Notice of Inquiry set forth this issue in detail and noted the disagreements among researchers about what factors to apply, the report offers no definition for Congress to consider. Instead, it acknowledges that “developing a definition would be challenging” and concludes only that “we believe Congress could do so.” In making this suggestion, the report says only that violence should be considered “in context.”
Yet this is precisely the issue the FCC identified in 2004 when it observed that “distinguishing one form of violence from another based on context is a difficult exercise.” Of course, the commission has recognized this difficulty at least since 1975, when it first declined to equate “indecent” and “violent” programming. As it explained at the time, “no reform short of wholesale proscription” of violent material would “provide absolute assurance that children or particularly sensitive adults will be insulated from objectionable material.” ("Report on the Broadcast of Violent, Indecent, and Obscene Material," 1975.)
The commission acknowledged that in trying to regulate depictions of violence, “many traditional children’s films should be banned because they include some element of violence — for example, episodes in Peter Pan when Captain Hook is eaten by an crocodile or in Snow White where the young heroine is poisoned by the witch.” It concluded that “[s]uch an extreme result simply does not make sense and would not be acceptable to the American people.”
Nothing in the current report suggests that Congress would be able to come up with a definition that has consistently eluded the FCC, the regulatory experts in this field. In fact, Commissioner Adelstein told the trade press that the Commissioners did not even discuss how to define “excessive violence,” notwithstanding the purpose of the 2004 Inquiry. “As far as I know, there was no attempt to define it,” he told Communications Daily. “There was no debate about it ... I presume because it is difficult,” he added.
Far from attempting to resolve the question, the report makes Congress’ task even more complicated by suggesting that it may need to come up with a variety of definitions. It suggested, for example, that a definition used for television rating purposes "might be based on different criteria than a definition used for identifying video programming that must not be show or must be channeled to a later hour.” Accordingly, “[r]atings and blocking regulations might require multiple definitions for different kinds of violent programming to which parents might want to restrict their children’s access.” It is difficult to imagine how Congress might find this aspect of the report helpful.
Surviving constitutional review
The definitional problem is integral to any constitutional defense of proposed violence regulations. As the commission put it in 2004: “[G]iven the definitional issues discussed above, how could Congress or the commission define some form of violent programming in a way that is not unconstitutionally vague or overbroad?” The report does not attempt to answer the FCC’s own question, but merely concludes: “We believe that developing an appropriate definition of excessively violent programming would be possible, but such language needs to be narrowly tailored and in conformance with judicial precedent.”
What judicial precedent does the FCC have in mind? The report cites no precedent supporting the regulation of televised images of violence, and it fails even to discuss the growing body of contrary precedent.
Consider what the Tennessee Supreme Court has said: “Every court that has considered the issue has invalidated attempts to regulate materials solely based on violent content, regardless of whether that material is called violence, excess violence, or included within the definition of obscenity.” [Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (1993).]
The 7th U.S. Circuit Court of Appeals has likewise observed that “violence on television … is protected speech, however insidious. Any other answer leaves the government in control of all the institutions of culture, the great censor and director of which thoughts are good for us.” [American Booksellers Ass'n, Inc. v. Hudnut (7th Cir. 1985).] And since 2000, two circuit courts and six federal district courts have invalidated efforts to regulate violent video games.
Given the uniformity of judicial rejection of efforts to regulate depictions of violence in entertainment, the FCC’s abbreviated discussion of FCC v. Pacifica Foundation (1978) gives Congress no meaningful guidance about the constitutionality of expanding FCC regulation over broadcast content, and no guidance whatsoever about the ability to regulate other media.
In all of this, Congress will gain far more insight from reviewing the Federal Trade Commission’s sixth report on "Marketing Violent Entertainment to Children," released just a couple of weeks ago. In that largely unnoticed report, the FTC reviewed relevant precedents and found that courts have uniformly struck down efforts to “treat violence like obscenity” or indecency and to impose either direct content regulations or mandatory ratings. Accordingly, the FTC concluded: “Given important First Amendment considerations, the Commission supports private sector initiatives by industry and individual companies.”
On balance, the FCC’s report is not so much an analysis that helps answer the questions Congress asked nearly three years ago, as it is a statement that the commission would applaud legislation if Congress chose to act. But all the heavy lifting remains to be done. The report, for example, recommends that “lawmakers should make specific findings to support such restrictions” if it wants to adopt regulations that are “sustainable.” Congress would need to perform a serious constitutional analysis as well.
As recently reported in Communications Daily, at least two FCC commissioners “were concerned that regulating violent programming would be unconstitutional.” The article also reported that a commission member declared: “‘There’s a lot of stuff that’s not addressed in the document, probably because it is a political document, and you don’t want to look under some rocks because you might be afraid of what may be crawling under it.’ Some FCC officials wanted a more thorough legal analysis of court precedents, but ‘the idea was not well received.’”
Robert Corn-Revere is a partner at the law firm of Davis Wright Tremaine. He has served as counsel in litigation and regulatory proceedings involving the Communications Decency Act, the Child Online Protection Act, FCC Indecency Rules, Internet content filtering in public libraries, and public broadcasting and cable television regulations. Corn-Revere was the lead counsel in United States v. Playboy Entertainment Group, Inc. (2000). He is the co-author of three-volume treatise, Modern Communications Law (West Group, Inc. 1999).