This week the Federal Trade Commission officially accusedHollywood of intentionally luring children to violent movies, TV programs, and video games. Although the FTC doesn’t support legislation of entertainment industry marketing, Al Gore might, and Slate’s “Culturebox” columnist, Judith Shulevitz, does too. In this conversation, she and Jack Shafer, Slate’s deputy editor and “Press Box” columnist, debate whether ads for violent entertainment should be regulated, censored, or just turned off.
“It takes a child to raze the constitutional rights of a village.”—Robert Corn-Revere
At the risk of phoning it in from Planet Dilettante, let me take a shot at explaining why the Supremes would shred any bill regulating movie and computer-game marketing.
As you note, commercial speech doesn’t enjoy as many legal protections as noncommercial speech. But in recent decades, our resourceful Supreme Court has extended the First Amendment to cover more and more commercial speech—provided that speech concerns lawful activity and is not misleading. Government can only restrict commercial speech if it demonstrates a “substantial” interest in restricting that speech and if the regulation directly advances the government’s interest. The court also insists that lawmakers can’t use a shotgun to regulate speech when a rifle will do.
So let’s do the law: Movies rated R for violence and M-rated computer games are legal. The ads rarely deceive—violent films are always advertised as violent films. On a very, very good day, you might persuade the court that government has a substantial interest in preventing the marketing of violent entertainments to people under 17, and on a very, very, very good day you might also convince the court that your law does that. But I can imagine no scenario in which the court wouldn’t say back to you, “Ms. Shulevitz, we sympathize with your plight. But if you want to put certain entertainments beyond the reach of those under 17, why not pass a law that makes such purchases illegal?”
Besides, the Supreme Court routinely smites laws that limit adult speech in the process of protecting children. This contempt for legislation that overreaches in the name of protecting children was reiterated this summer in United States vs. Playboy Entertainment Group, and in 1997 with their decision Reno vs. ACLU, the case that sank the Communications Decency Act. My personal favorite case in which commercial speech rights trumped the “protection of children” is 1983’s Bolger vs. Youngs Drug Products Corp.
In Bolger, the Supreme Court struck down a federal (!) law that banned the mailing of unsolicited contraceptive ads. Bolger’s supporters argued that the law protected families from receiving materials they found offensive and gave them more control over the way their children learned about birth control. But in keeping with its evolving devotion to commercial speech, the court found that neither of these interests justified such a sweeping prohibition against contraceptive ads. Please use a rifle, the court said, and leave your shotgun at home.
This concludes my legal exegesis. (Dahlia Lithwick, won’t you please come home?)
Does the FTC brouhaha remind you of the demagogic hearings Congress staged in the ‘50s, when it successfully suppressed violent comic books? Or Spiro Agnew’s 1970 campaign against rock music? (He claimed it encouraged drug use, which I suppose it did.) Or Al and Tipper Gore’s PMRC crusade in the mid-’80s? Do the cycles of history demand that every generation or so we must hyperventilate about what our entertainments are doing to our children and call upon Washington to send in federal troops?
If history is any guide, I predict this whole furor will blow over the day after Election Day, once the McCains and Liebermans have exhausted the subject of its demagogic appeal. As you note, entertainment companies such as ABC, whose broadcast licenses are a tempting target for regulators, are already folding and banning ads for violent movies from prime time. Seventeen magazine will lose a couple of movie ads, as will Buffy the Vampire Slayer, and the game industry will make some mollifying gesture.
You’ll get your way, but I don’t envy you your victory. Kids know that they’re not growing up unless they’re flirting with adult pleasures, and by adding yet another layer of taboo to taboos already cloaking violent entertainments the crusaders have only increased their allure. The stench of backfire fills the air: To satisfy parental demands that they grow up, kids have new incentives to consume violent rap, blood-drenched games, and gun-crazy movies.