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Target practice on the First Amendment

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center

02.28.00

Remember the Juvenile Justice bill? That's the legislation that members of Congress festooned with overwrought proposals in an attempt to appear to be doing something about the high school shooting tragedy in Littleton, Colo. The bill faded from the public mind after contentious arguments broke out over gun proposals.

Old ideas rarely fade away in Congress, however, so the Juvenile Justice bill has made its way to a House-Senate conference committee. The Senate version, S. 254, is sponsored by Sen. Orrin Hatch. The House version, H.R. 1501, is sponsored by Florida Republican Bill McCollum.

It's hard to say whether the legislation will survive the fractious debate over Second Amendment concerns, but many of the proposals embedded in the two bills indicate that most members of Congress remain in denial about the existence of the First Amendment.

The alleged purpose of the legislation is to stanch violence among our young people. The bills have some proposals about guns, but the lawmakers' real target appears to be what they consider a more lethal weapon: speech.

Once you start down that road, of course, it's difficult to find a place to stop. So it's not just violent messages that come in for regulation, but also speech about sex, hate and other things that offend some people. It's not just speech but the modes of speech that draw fire: movies, television, music, the Internet, and video games. And it's not just what people say but what they think that must be controlled and directed.

Ponder these proposals, for example:

  • Before granting requests to use government property, federal departments and agencies would be empowered to determine whether the user, a moviemaker perhaps, would promote, glorify, or endorse wanton or gratuitous violence.

  • The Department of Justice and the Federal Trade Commission would be instructed to help the broadcasting industry find ways around antitrust laws in developing and implementing programming guidelines to temper the asserted negative impact of media on children.

  • Public schools and libraries would be forced to forfeit government funds if they failed to install filtering software on their computers.

  • Internet service providers would be required to offer residential customers filtering or blocking systems for their computers at the time of entering into contracts.

  • The FTC would be required to conduct a study of the entertainment industry's marketing practices, enforcement of rating systems, and policies relating to the sale of music, movies and other media to minors.

  • The FTC and the U.S. attorney general would conduct a study of the marketing practices of the firearms industry, focusing primarily on the extent to which advertising promotes gun use by minors.

  • The U.S. surgeon general and the National Institute of Mental Health would be required to review published research and studies on the impact of violent messages in popular media on the health and welfare of children and young adults, and then to make recommendations for mitigating harmful effects.

  • The National Academy of Sciences would be required to complete a study on the antecedents of school violence, paying particular attention to the impact of cultural influences and exposure to the media, video games, and the Internet.

    • Having thus rearranged and reinterpreted the First Amendment rights of various media, the proposals turn to the freedom of speech and thought of the people themselves.

    The proposals would require the establishment of a 36-member national commission, including two people from the entertainment industry and two members of the clergy, to study and make recommendations about cultural influences on character development. The National Institutes of Health would offer a multi-year course of behavioral and social science research on the causes and prevention of youth violence. The U.S. attorney's office would cooperate with local communities in an extensive media/public outreach campaign to "educate" the public about federal gun laws. And $25 million would be appropriated for a two-year national media campaign to reduce and prevent violent criminal behavior.

    Then there are the proposals that, in effect, invite religious groups to strike a Faustian bargain with the government:

  • Prayer, scripture readings, and the use of religious music, symbols or motifs would be allowed during a memorial service on public school grounds as long as the service honored a person slain at the school.

  • Government entities that receive grant money to carry out the requirements of the Juvenile Justice bill would be allowed to contract with religious organizations.

  • Display of the Ten Commandments would be allowed on public property.

  • Materials produced with funds from the Juvenile Justice Act dealing with hate crimes would have to be respectful of the diversity of deeply held religious beliefs.

    • Although at least half a dozen or more of these proposals call for studies and reports, the lawmakers can't wait to get ahead of themselves and make some "findings" without the benefit of such studies or reports. For example, they assert that the quality of television programming declined after the National Association of Broadcasters abandoned its code of conduct in 1983. The NAB "abandoned" the code, of course, because it violated antitrust laws.

    Another "finding" among these proposals is that violent messages in the media have a negative impact on children. Since virtually all of the proposals are predicated on that presumption, the calls for studies and reports seem a bit superfluous.

    One study that was not ordered is whether these proposals were put forth more to respond to the polls than to address the problem.

    For that reason and others, Americans will be forgiven for detecting a bit of cynicism and opportunism among their elected representatives.

    For the most part, these lawmakers know these proposals will have no appreciable impact on violence among youth.

    They know they will not survive legal challenge.

    They know they are a blatant affront to our First Amendment rights and traditions.

    But they trot them out anyway.

    They will continue to do so until Americans remind them that the first four words of the First Amendment, "Congress shall make no law ...," are a constitutional rebuke to these sorts of proposals.

    Paul McMasters may be contacted at pmcmasters@freedomforum.org.