If you’re right that the Supreme Court would reject any law that Congress or the executive branch would propose to limit the marketing of bang-’em-up-and-slice-’em-and-kill-them-dark-complected-suckers fare to children, why then, I’ll fold up my tent and trudge home. Far be it from me to disagree with my favorite American institution. I still think Slate should ask a genuine constitutional scholar to weigh in on this.
In the meantime, I’ll try in my amateurish way to show you why I think you’re wrong. Clearly, any such law would have to clear several daunting hurdles. (Herewith follows detailed recitation of those hurdles, so readers who succumb to narcolepsy in the presence of legalese should skip to the fifth paragraph.) The first obstacle is the biggest one: The government would have to establish that the advertisements for noncommercial, protected speech (such as Face/Off, Turok, and the songs of Eminem) are commercial speech, and as I said yesterday, the courts haven’t really laid down the law on this question.
After that, there are four more steps. Ever since a 1980 Supreme Court case called Central Hudson Gas & Electric Corp. vs. Public Service Commission of New York, the government has had to meet the following conditions when it comes to restricting commercial speech: It has to show that 1) it has “substantial” reason to intervene; 2) the proposed regulation is as narrow as it can be; 3) it directly advances the interest the government claims to be protecting; and 4) the speech in question is in some way misleading or unlawful. Rather unusually, the proposed regulation doesn’t have to meet all four conditions—just most of them. (“Each raises a relevant question that may not be dispositive to the First Amendment inquiry, but the answer to which may inform a judgment concerning the other three.”) So, the fact that the movies, songs, and games are not themselves “unlawful” doesn’t preclude the legislation. It just puts the burden on the government to make a strong case vis-à-vis the other three-and-a-half conditions.
Could it make that case? The task doesn’t seem impossible—if the courts say the ads are commercial speech, which is, I admit, a big if. But if that happens, then here’s another if. If the government can limit access to pornography, I don’t see why it can’t limit access to extreme violence. As for making sure that the legislation doesn’t overreach—that we use a rifle rather than a shotgun, as you put it—the government could propose some carefully circumscribed ban on airing advertisements on programs, or printing them in magazines, in which 75 percent of the audience is children younger than 13. Or something like that. One thing the government clearly should not do is attempt to dictate the content of those ads—that would propel us into the realm of what’s known as “compelled” speech, and the barriers against that are, correctly, fantastically high. As for the question you imagine the justices posing—”Ms. Shulevitz, if you want to put certain entertainments beyond the reach of those under 17, why not pass a law that makes such purchases illegal?”—I can’t see them asking that at all. That law would require us to limit distribution of the movies, songs, and games themselves, and that—I believe—means direct censorship of noncommercial, free speech.
Escaping the stifling closeness of the law library for the purer air of campaign politics, you ask whether I’m bothered by the hypocrisy and demagoguery that surrounds this issue. Indeed I am. I thought Lynne Cheney’s performance at the Senate subcommittee hearing yesterday was despicable. She’s doing everything she can to obscure the issue—and to make people like me look bad. She’s for all-out censorship, no matter how broad or unconstitutional. The problem, she says, is “with the product they market, no matter how they market it.” In other words, she wants artists to stop making the movies, composing the songs, and, I’d guess, writing the books that offend her sense of propriety. I happily consume a lot of the stuff that offends her. I just don’t want it in the eyes, ears, and psyches of my kids—yet. That doesn’t seem hypocritical, unless you want to reject all the distinctions between children and adults that we make in American society. And the reason I feel this way, by the way, is not that I think violent media causes crime or degrades the moral fabric of society or any other nonsense like that, either (though I don’t think the stuff is good for kids or anything). I just want it left up to me—and not some Hollywood marketer—to decide what’s right for my kids.
By the way, you don’t make what seems to me your best case against my position—which is this: Why ban the ads when the kids still need my permission to buy or see the violent stuff? My answer: Because kids don’t have the defenses against advertising that adults do. They fall for it a lot faster and much, much harder. My objection to Hollywood having created a ratings system and then undermined it through marketing is that they have turned life with young kids into a living hell of nagging and nos, and a house full of them into a miserable battleground.
You deplore what you predict will be the unintended consequences of any law or of Hollywood’s voluntary self-regulation. Violent media, you say, will become more alluring and irresistible than ever. I don’t agree. If we limit ourselves to the goal of decreasing the amount of air time given to superviolent media, then I’d expect our law’s effect to be exactly the opposite of what you anticipate. I’d expect there to be a minute yet significant change in the social atmosphere, in a Gladwellian tipping-point sort of way. Even a small reduction in advertising could mean a potentially huge reduction in public awareness of upcoming megaviolent events. Kids who already had a powerful interest in, and consciousness of, these sorts of things would find out about them soon enough—teen-agers in particular have a genius for nosing out whatever they want to nose out—but the younger kids might just go about their business, never realizing that they’d missed the unbelievably important release date of the latest incredibly sexist and racist and gross computer game. Maybe with less popular awareness, the game would fail to become the must-have purchase of the week. It would be just one more obnoxious thing among the many that kids and parents have to navigate around. That, personally, would satisfy me.