WASHINGTON — The Federal Trade Commission recently did something rare if not unprecedented for a regulatory agency: It decided not to regulate because of First Amendment concerns.
The commission’s decision to step back where other agencies rush ahead came on the subject of violence in the media. In a little-noticed report issued April 12, the FTC said the movie, music and game industries needed to do more in voluntary, self-regulatory ways to reduce kids’ exposure to violence. But it said the state of First Amendment law would make mandatory regulation futile and unconstitutional.
“Given important First Amendment considerations, the Commission supports private sector initiatives by industry and individual companies,” the FTC concluded.
The FTC report stands in contrast to the other report on media violence issued recently: The Federal Communications Commission’s April 25 report on violence on television. The FCC argued that in spite of “constitutional barriers” to banning violent programming, court rulings limiting indecent content on television “provide possible parallels for regulating violent television content.”
The FCC’s brush-off of First Amendment concerns led one commissioner, Jonathan Adelstein, to lament that the central constitutional question of whether violent programming can be regulated to protect children “is never answered here.”
The FTC’s report, its sixth on the subject since 2000, did not let the entertainment industry off easy. In spite of general compliance with efforts at self-regulation, it said, children are still exposed to advertising for media with violent content, and they are often able to access R-rated movies, violent video games and music with violent, adult lyrics. The commission voiced special concern about “director’s cut” versions of movies on DVDs, as well as studios’ marketing of violent movies on MySpace and other “viral marketing” campaigns.
FTC Chairman Deborah Majoras said lapses in self-regulation undermined the argument that the industry can police itself without the government stepping in. “Self-regulation, long a critical underpinning of U.S. advertising, is weakened if industry markets products in ways inconsistent with their ratings and parental advisories,” she said.
But the commission’s decision about the First Amendment clearly frames the report’s focus on improving self-regulation — rather than on devising new regulations the government could impose, constitutional or not.
In an appendix to its report, the FTC surveyed recent court decisions on violent video games, finding that “state and local legislative efforts to restrict the access of minors to video games with violent content have been struck down by two circuits and six district courts.”
It cited the 7th U.S. Circuit Court of Appeals 2001 decision American Amusement Machine Association v. Kendrick, which enjoined enforcement of an Indianapolis ordinance forbidding video-arcade operators from allowing minors to access to games with “graphic violence.” Judge Richard Posner said “graphic scenes of violence” permeated literature and art, even including classics of children’s literature.
“It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Anderson and Perrault are aware,” Posner wrote. “These games with their cartoon characters and stylized mayhem are continuous with an age-old children’s literature on violent themes.” As such, he said, media violence enjoys First Amendment protection.
Posner also distinguished violent from sexually explicit material. Banning the latter, he said, can be based on evidence that it violates community norms. But the ban on violent content is tied to limited empirical evidence that violent media can produce aggressive behavior in children.
Lower courts have also struck down legislative efforts to require that violent media be labeled as such, the commission noted. Courts have viewed these laws as a form of “compelled speech” subject to the highest level of scrutiny under the First Amendment.
The FTC’s First Amendment analysis ended this way: “Until the courts are presented with compelling evidence of harm linked to minors’ viewing of violent images — harm either to minors themselves or to potential victims of aggressive impulses — it appears unlikely that content-based restrictions of violent video games will survive constitutional challenges.”