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Muzzling advertisers won't make parents more responsible

By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee

Sen. Joe Lieberman, I suspect, would like my parents.

I was 16 years old when "Animal House" debuted and, as only teenagers can, I relentlessly pushed my parents for permission to see it. "I know I'm supposed to be 17," I said, "but all my friends are going. The people at the theater don't care. They won't know I'm not 17. Besides," I asked, "what's the worst thing I'm going to see?"

My parents finally agreed I could go, but with one condition — they had to go with me. So my parents and I sat through "Animal House" together, all pretending to be horrified and embarrassed by the occasional naked breast. My lesson learned, I didn't go to another R-rated movie until I was safely 17.

This type of parental supervision and involvement, I suspect, is what Lieberman is attempting to foster through the Media Marketing Accountability Act that he introduced last week. Unfortunately for Lieberman, however, it isn't 1978 anymore.

For better or worse, almost everything has changed since "Animal House" lit up the big screen. Parents and children are different. Movies, television and music are different. The Internet is everywhere. And Sports Illustrated's swimsuit edition displays more naked breasts than the Greeks at Faber College ever did.

As much as these changing times might seem to require Lieberman's attempt to prevent the media from marketing adult-rated entertainment to minors, they ultimately are the reason the proposed legislation will fail. Of all the flawed premises on which the act is based, none is more erroneous than the assumption that parents care about ratings.

Under the act, which is co-sponsored by Sens. Herb Kohl, D-Wis., and Hillary Clinton, D-N.Y., the Federal Trade Commission would be able to fine businesses $11,000 per day for marketing adult-oriented movies, music and video games to children. The legislation follows a September 2000 FTC report, which found these industries routinely market R-rated movies, M-rated video games and music containing "explicit language" to minors. If passed, the measure would deem such marketing to be "false and deceptive" and thus subject to FTC regulation.

While many would agree this marketing is inappropriate, its existence establishes its effectiveness. Valuable advertising resources, after all, wouldn't be directed at minors unless minors were buying these products. And minors wouldn't be buying these products — which all display conspicuous adult ratings — if parents cared enough to stop them.

The act, however, would not require parents to monitor their children more closely. Nor would it prohibit the sale of adult-rated products to minors. Instead, it would only clumsily and unconstitutionally inject the government into speech between manufacturer and consumer.

As drafted, the act would prohibit "targeted advertising or other marketing to minors" of adult-rated motion pictures, music recordings and electronic games. Marketing would be "targeted" to children if it were intentionally directed to them or presented to an audience of which a "substantial portion" were minors. The act dodges responsibility for defining "substantial portion," leaving that challenge to the FTC.

Constitutionally defining "substantial portion" appears to be an impossible task. As a content-based restriction on commercial speech, the legislation must be narrowly tailored and not inadvertently infringe upon protected speech. Minors and adults often are parts of the same listening and viewing audiences, however, and any definition of "substantial portion" that prevented manufacturers from reaching these mixed audiences would be constitutionally suspect. On more than one occasion, the U.S. Supreme Court has held that the First Amendment does not permit the government to sanitize speech merely because children are in the audience.

A more practical problem with the measure is that it may end up gutting the ratings it is attempting embrace. The ratings systems currently in place are voluntary, and few believe the government could constitutionally label movies, music and video games as appropriate or inappropriate for children. Under the act, however, only those manufacturers that rate their products would be prohibited from marketing them to children. The surest way for these industries to avoid liability under the act thus would be to drop their ratings systems.

In introducing the bill, Lieberman said the "bottom line" was that "the First Amendment is not a license to deceive." The only deception here, though, is the senator's suggestion that the measure is both necessary and constitutional. Parents aren't complaining that the ratings systems are inadequate or confusing. Nor are they complaining that the marketing of adult-oriented products to audiences including children is itself harmful. Instead, the complaint is only that minors are purchasing these products.

Indisputably, however, these purchases occur only because parents allow them. Too many parents, it appears, are unwilling to accept responsibility for preventing children from playing violent video games, listening to vulgar music lyrics and watching lewd movies. And as much as Lieberman might want to think otherwise, muzzling advertisers will not make these parents more responsible.


Lieberman renews efforts on entertainment-marketing bill

Lawmaker sends letter asking Senate colleagues to support plan, as House introduces his measure to punish media companies for promoting adult material to minors. 06.22.01

Maryland woman claims record company mislabeled 'clean version' CD

Lawsuit alleges Atlantic Records practiced deceptive advertising by not editing out rap recording’s sexually explicit lyrics. 07.10.01

Lawmakers argue for more-descriptive music ratings

But recording industry representative tells House subcommittee that going beyond current labeling system could infringe on artists' free-speech rights. 07.23.01

FTC: Music industry still marketing adult fare to kids
But agency reports movie, video game companies have made 'commendable progress' in not targeting children with violent, sexually explicit advertising. 12.06.01

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