Ronald D. Rotunda
Cato Institute, Visiting Senior Fellow in Constitutional Studies
The Albert E. Jenner, Jr., Professor of Law, the University of Illinois
The Columbine incident, where two young boys killed some of their
fellow classmates and then themselves, is certainly a tragedy. What
is the lesson to be learned? Perhaps only that, in a nation with
a population of approximately a third of a billion, if even a miniscule
percentage of people are mentally unstable, this insanity can produce
disastrous results. Is there another lesson to be learned? President
Clinton thought that there might be, so he ordered the FTC to study
if Hollywood is somehow to blame. The FTC complied and issued its
now famous report. What is its conclusion? Simply that there is
no connection between the entertainment industry and violence in
America. That's right. Buried in Appendix A of the FTC Report, written
in the complex style so common to bureaucrats, is this startling
conclusion: "There does appear to be general agreement among
researchers that whatever the impact of media violence, it likely
explains a relatively small amount of the total variation in youthful
violent behavior." (1)
The FTC did not trumpet that inconvenient little fact. Instead,
page 1 of its Executive Summary publicized a different conclusion
suggesting cause and effect. It explained that "parents, social
scientists" and others "have struggled to understand how
and why some children turn to violence. The dialogues took on new
urgency with the horrifying school shooting on April 20, 1999, in
The FTC then excoriated the entertainment industry for "marketing"
violent products that are, in the view of the FTC, not suitable
for the young. It accused the industry of being "misleading,"
and darkly threatened to take some sort of enforcement action against
it. If the FTC is truly concerned about misleading advertising,
it should look at its own report; then it should look in the mirror.
What does it mean to "market" to juveniles? MetLife markets
its insurance products by using Snoopy, the dog from the Peanuts
cartoon series. On billboards, commercials, and its homepage,(3)MetLife
prominently displays the cartoon dog. As one browses the other links
in the web page, we see Snoopy, Lucy, and the other characters selling
life insurance, advising about a will, and so forth. There is Snoopy
pointing to a chart and explaining the need for long-term care insurance.(4)
The FTC should investigate MetLife, to determine if it is trying
to scare young children by talking about wills, death, and nursing
homes. Perhaps there is a secret conspiracy between Hollywood and
MetLife to get children used to death so that they will be less
reluctant to attend scary movies.
Then there is Owens Corning. Its billboards, commercials, and web
page feature another cartoon character, the Pink Panther, touting,
of all things, insulation, roofing systems, and Trumbull Asphalt.
(5) The tie-in with the cuddly panther is not subtle:
the Owens Corning 800 number is: 1-800- GET PINK. Owens Corning
must be "marketing to children." Why else would it use
a cartoon character to hype that the Department of Energy "recently
announced that winter heating bills could be more than 50 percent
higher then last year."(6)
It must be because it thinks that the little tykes will then
nag their parents to buy more insulation, and not just any insulation,
but Owens Corning insulation.
The FTC would have us believe that it has discovered something
new here, but there is nothing new about businesses using children's
cartoons to appeal to adults or advertising in different forums
where ubiquitous children might also see the product. That has been
going on for most of this century. Indeed, one recent booklet is
titled, Cartoon Advertising Cuts Of The Thirties.
(7) One does not "market to children" simply
because children see the advertisement.
There is also nothing new under the sun, and we have traveled this
road before. There was a similar effort to blame society's woes
on the entertainment industry in the late 1940's and 1950's. A psychiatrist
named Dr. Fredric Wertham made a name for himself back then by crusading
against violent comic books. His 1954 book, Seduction of the Innocent,
is a bellicose and overstated polemic against the evils of violence
in comic books.(8)
It led the Senate Subcommittee on Juvenile Delinquency to
hold hearings on how violent comic books (Superman was accused of
being a fascist) were responsible for corrupting the youth, causing
crime, and so forth.(9)
The FTC attack is déjà vu all over again, and the
FTC's attack on Hollywood is as thoughtful as the attack on Superman
a half century earlier.
What should not be lost in the controversy is the important First
Amendment issues at stake. The Supreme Court has promulgated a lot
of case law in this area and none of it should give solace to the
FTC. Neither Congress nor the FTC can censor or limit movies, or
CD's, or *.MP3 songs, or video games, or comic books unless they
are constitutionally obscene - a term of art that the case law has
defined in a very limited way. Violence, even gory violence, is
not "obscene" in the Constitutional sense. In Miller
the Court defined "obscenity," and set forth a three-part
The basic guidelines for the trier of fact must be: (a) whether
"the average person, applying contemporary community standards"
would find that the work, taken as a whole, appeals to the prurient
interest, (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable
state law, and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value.
The touchstone is "sex," not "violence."
The Court in Miller carefully noted that "in the area
of freedom of speech and press the courts must always remain sensitive
to any infringement on genuinely serious literary, artistic, political,
or scientific expression."(12)
On this basis the Court stated that "State statutes designed
to regulate obscene materials must be carefully limited," and
thus the Court held that "we now confine the permissible scope
of [state] regulation [of obscenity] to works which depict or describe
sexual conduct." (13)
Miller went on to further define what is meant by "sexual
conduct." It offered what it described as "a few plain
examples of what a state statute could define for regulation under
part (b) of the standard announced in this opinion...."
(a) Patently offensive representations or descriptions of ultimate
sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation,
excretory functions, and lewd exhibition of the genitals.
The Court explicitly acknowledged that under Miller, "no
one [may] be subject to prosecution for the sale or exposure of
obscene materials unless these materials depict or describe patently
offensive 'hard core' sexual conduct specifically defined by the
regulating state law, as written or construed."(16)
Miller, in short, would find unconstitutional the efforts
of the FTC and Vice President Gore to regulate movies, video games,
etc., that are, in their view, too violent if shown to teenagers.
Where will this end? Will the Government seek to censor a war documentary,
or not allow children to see portions of the evening news?
That does not mean that government officials can do nothing. They
can lead by example. If they want people to tell the truth, they
can start by explaining why one should never lie. If they believe
that advertising is so effective, they can distribute their own
advertisements. (Although, one must take with a grain of salt those
who argue that advertising is the hidden persuader that manipulates
us. The Soviet Union had three-quarters of a century to advertise
its views of the proper role of Government and it utterly failed
to persuade its citizens. If marketing and advertising is so effective,
there would still be a Soviet Union.)
It will not do for the FTC to complain that violent movies or video
games or music lyrics are "marketed" to children, like
the Pink Panther is used to market insulation to children. For example,
case law has made it very clear that the FCC cannot ban "dial-a-porn"
simply because children may also see or use it. Only very narrowly
tailored laws would be constitutional in this area because of the
First Amendment. Thus Sable Communications of California, Inc.
v. FCC (17)
invalidated the portion of a statute that imposed an outright ban
on "indecent," i.e., "adult" dial-a-porn
messages. The means used in the statute were improper because they
were not narrowly tailored to serve the purported purpose of protecting
children. Using access code, scrambling rules and credit card regulations
would constitute a more carefully tailored way of keeping indecent
dial-a-porn out the reach of minors without having a total ban.
What is sauce for the FCC should be sauce for the FTC.
Similarly, United States v. Playboy Entertainment Group, Inc.,(18)
invalidated section 505 of the Telecommunications Act of 1996. That
section required cable television operators broadcasting channels
"primarily dedicated to sexually-oriented programming"
to "fully scramble or otherwise fully block" those channels
or to limit their transmission to hours when children are unlikely
to be viewing, set by administrative regulation as between 10 p.m.
and 6 a.m.
The Supreme Court agreed that the Government has legitimate reasons
for its regulation because the programs come unwanted into homes
where children might see or hear it against parental wishes or consent.
Nonetheless, the Court held that that § 505's restriction violates
the First Amendment because the Government might further its interests
in less restrictive ways. One less restrictive alternative could
be found in § 504 of the Act, which requires a cable operator,
"[u]pon request by a cable service subscriber ... without charge,
[to] fully scramble or otherwise fully block" any channel the
subscriber does not wish to receive, on a household-by-household
basis. Parents had this alternative and but these hardly ever chose
to use it.
What happens next? First, Joe Lieberman has already introduced
legislation that would seek to criminalize marketing certain videos,
CD's, etc. to people of certain age groups. In addition, we will
see the plaintiffs' lawyers jump into the fray. In fact, some of
them are already talking about a massive class action, claiming
that Hollywood should be liable if people see a movie and then engage
in a copycat crime. (19)
Maybe newspapers will be next on the list, when a copycat criminal
reads a story and then commits a similar felony. That's the problem
when politicians are willing to violate the First Amendment. Like
the boy who said he knew how to spell "banana" but did
not know when to stop, politicians never know when to stop. (20)
- REPORT OF THE FEDERAL TRADE COMMISSION, MARKETING
VIOLENT ENTERTAINMENT TO CHILDREN: A REVIEW OF SELF-REGULATION
AND INDUSTRY PRACTICES IN THE MOTION PICTURE, MUSIC RECORDINGS
& ELECTRONIC GAME INDUSTRIES (FTC, Sept. 2000), Appendix A,
A Review of Research on the Impact of Violence in Entertainment
Media, at p. 9.
- REPORT OF THE FEDERAL TRADE COMMISSION, MARKETING VIOLENT
ENTERTAINMENT TO CHILDREN: A REVIEW OF SELF-REGULATION AND INDUSTRY
PRACTICES IN THE MOTION PICTURE, MUSIC RECORDINGS & ELECTRONIC
GAME INDUSTRIES (FTC, Sept. 2000), at p. 1 of Executive Summary.
- LEWIS HYMERS, CARTOON ADVERTISING CUTS OF THE THIRTIES:
772 DIFFERENT COPYRIGHT-FREE DESIGNS PRINTED ONE SIDE (Dover Publications,
Inc, 1996 (ISBN: 0486292185).
- 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), rehearing
denied 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973).
- 413 U.S. at 24, 93 S.Ct. at 2615 (emphasis added).
- 413 U.S. at 22-23, 93 S.Ct. at 2614.
- 413 U.S. at 23-24, 93 S.Ct. at 2614.
- 13 U.S. at 25, 93 S.Ct. at 2615.
- 413 U.S. at 25, 93 S.Ct. at 2615.
- 413 U.S. at 27, 93 S.Ct. at 2616.
- 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). The relevant
section is § 223(b) of the Communications Act of 1934, as
amended in 1988.
- 529 U.S. -, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).
- See, Ronald D. Rotunda, Rated V for Violence, LEGAL
TIMES (of Washington, D.C.), August 14, 2000, at p. 68.
- See Frank J. Murray, FTC Adds Ammo to Lawsuits for Deaths,
Washington Times, Sept. 13, 2000, http://www.washtimes.com/national/default-2000913234236.htm
- "Lawyers for the parents of three girls murdered in
Paducah, Ky., are considering a national class-action lawsuit
using a Federal Trade Commission finding that Hollywood targets
children in marketing violent movies and videos.
"'I think that we have some very big bullets for our guns.
The FTC report is just tailor-made for what we've been saying,'"
said Michael Breen of Bowling Green, Ky."