In 1995, Judge Harry T. Edwards of the U.S. Circuit Court of Appeals for the District of Columbia concluded that the First Amendment prohibited, in most cases, the regulation of violence on television. At the end of a law-review article he co-authored with Mitchell N. Berman, he added a personal note that this prohibition troubled him.
“As a father and step-father of four children, the husband of a trial judge in Washington, D.C. who works with the perpetrators and victims of juvenile violence every day, and an Afro-American who has watched the younger generation of his race slaughtered by the blight of violence and drugs in the inner-cities of America, I am disappointed that more regulation of violence is not possible.”
What bothered him still concerns parents today — perhaps more so in the wake of the recent violence at Virginia Tech. As Edwards explained:
“Like many parents of my vintage, I believe, in my gut, that there is no doubt that the trash that our children see as ‘entertainment’ adversely affects their future, either because they mimic what they see or become the potential victims in a society littered with immorality and too much callous disregard for human life.”
Issues to consider
Yet, as legal scholars, Edwards and Berman concluded that moral revulsion was not enough for the regulation of violence on television to pass constitutional muster. In their 1995 Northwestern University Law Review article, “Regulating Violence on Television” (89 NW. U.L. Rev. 1487), the two scrupulously analyzed five issues:
- Whether the level of scrutiny applied to television violence could be less than would apply to other media.
- Whether such regulation would be content-based or content-neutral.
- Whether a content-based restriction would be allowed if violence was deemed low-value or high-value speech.
- The level of scrutiny required.
- Whether the regulation of television violence could pass an “exacting scrutiny” standard.
At the outset, Edwards and Berman considered whether any regulation of television violence could be applied to broadcast programming in ways different from the regulation of other media such as cable and print. That is, was there some special reason for allowing the government more latitude in the broadcast setting? The authors concluded there was not: “We believe that the justifications distinguishing broadcast from other media such as print, and cable, will not hold. Maintaining the scarcity rationale or the [FCC v. Pacifica (1978)] reasoning, or even formulating new justifications will prove difficult in future cases.” They added: “We therefore venture to guess that the Court will eventually feel forced to bring broadcast television and radio into the First Amendment fold, and allow broadcasting to enjoy the full protection it deserves.”
The authors next addressed whether regulation of television violence would be content-neutral or content-based. A regulation on violence cannot be a content-neutral, time, place, and manner restriction, they found, because “violence” is content, not a “manner.”
“If (and only if) an aspect of the communication can be regulated while only minimally impacting upon the meaning of the expression (a judgment call, to be sure) call it ‘manner’ rather than ‘content,’” they wrote. Even if we applied the secondary-effects test, which has been used to allow zoning restrictions on adult theaters, regulation of violence would not be possible. This test only works when the harm occurs separately from the communication. With television violence, the harm is said to be a product of the communication. With adult stores, the harm is not the product of the content of what is being shown in the theaters but the effects of their presence in a neighborhood.
The value of violence
Should a content-based restriction be implemented, the authors next considered whether violence would be treated as low-value or high-value speech. Were it to be low-value speech, such a restriction would have a better chance of surviving court scrutiny. However, the authors determined that violence does not fall into any of the existing categories of low-value speech, such as obscenity.
Moreover, the Supreme Court is unlikely to create a new category of low-value speech, they added. Even were a legislature to try this — as Missouri did when it tried to implement a ban on the sale or rental of violent videotapes to minors — by adapting the Court’s three-part test for obscenity, there would still be constitutional problems. The First Amendment does not permit abridgment of speech simply on the basis of the majority’s distaste for the speech. Additionally, the vagueness doctrine would make it almost impossible to define “violence.” (Indeed, the 8th U.S. Circuit Court of Appeals struck down Missouri’s statute on just those grounds in Video Software Dealers Ass'n v. Webster, 968 F.2d 684 (8th Cir. 1992). And in 2001, the 7th Circuit, per Judge Richard Posner, struck down anti-violent video-game legislation in American Amusement Machine Association v. Kendrick.)
Given the difficulty of treating violence as low-value expression, the authors next addressed whether a content-based regulation on television violence would survive if the violence were deemed high-value speech. They readily concluded that none of the advocacy of violence line of cases was appropriate for television violence because there is no imminent lawless action or true advocacy of aggression involved. The challenge, then, would be to fashion a law that would allow regulation of television violence under the justifying protection of a compelling government interest, and to do so in a manner that constrained expression in the least-restrictive way possible.
Exactly what such a compelling government interest would be was unclear to the authors. Reducing societal violence may be a significant goal, but there is still debate over whether television violence causes societal violence and, if so, how strong that causal connection is. If protecting children from harm is the goal, then again it is unclear that television violence causes antisocial behavior. Given such paternalistic goals, a regulation would have to be the least-burdensome means to achieve them. A complete ban on television violence would not be that, even assuming violence influences children differently than adults.
Edwards and Berman maintained the labeling of violent content to be a more promising method of regulation. Still, they argued that any forced labeling of violence was not likely to be constitutionally viable inasmuch as it would compel speech that the speaker wouldn’t otherwise make. However, they conceded that the Supreme Court might allow some forced labeling if it were content-neutral and had such a minimal effect on speech that it did not trigger content-based scrutiny.
The most promising of the content-based regulations, they suggested, were mandates such as the V-chip (V for violence) or lockout technology allowing parents to block certain categories of programming. (After their article’s publication, the FCC mandated V-chip installation in new televisions; that rule remains in effect.)
But could such labeling or disclosure laws survive First Amendment scrutiny? Here, the compelling government interest might, they speculated, be in “facilitating parents’ ability to control how much violence programming their children watch.” Such a regulation, if shown to be necessary, and if narrowly tailored, might well be “unobjectionable under the First Amendment.”
In the end, Edwards and Berman concluded that if TV violence could be regulated at all, the best hope was for legislation requiring V-chip technology, or something akin. Such regulation, they argued, would permit families to regulate objectionable content themselves.
Hannah Bergman is a second-year law student at American University College of Law and a graduate student in the university’s journalism department.