Pinning a label on violence in media

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org

06.23.00

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Someone should be keeping track of all the proposals coming out of Congress to regulate what the rest of us can see, hear and say. It is a long and scary list.

The latest such proposal comes from Sens. John McCain and Joseph Lieberman in the form of the Media Violence Labeling Act (S. 2497), resurrected and revamped from the remains of last year's attempts to regulate speech.

The purpose of this bill is to pin a label on violence. Not just any violence in any medium, but all violence on all 'audio and visual media products and services.' That means essentially a one-size-fits-all rating system for a universe of media: music, movies, videos, computer games, and other forms of entertainment that Americans listen to, watch or play.

The law would compel media producers and manufacturers to come up with a uniform labeling system for 'violent' content to be reviewed by the Federal Trade Commission. If the system did not satisfy the FTC, the agency would be empowered to create a suitable rating system itself. The law would suspend antitrust laws so the media companies could conspire to censor themselves.

And what sort of label does the legislation call for? It would have to be a single format (but in audio as well as visual form) that would measure the nature, context and intensity of any depictions of violence in the product or service being rated. It also would have to determine 'in light of the totality of all depictions of violence' a suitable minimum age for anyone who might buy or use the product or service.

Not only would the rating label have to appear on all products and services but in the advertising and promotion of those products and services, as well.

The law would delegate to state attorneys general the power to prosecute violations of this labeling regime. The penalty for each violation would be up to $10,000 for each day from the commencement of sale or distribution of the product or service.

And it appears to make no exception for products and services already in the marketing stream, which would require a recall of hundreds of thousands of videos, games, tapes and CDs.

Aside from the fact that it is costly, impractical and unconstitutional, why is this a bad proposal?

• Because it attempts to define violence across a wide spectrum of media and contexts.
• Because it attempts to regulate speech that the courts have declined to remove from the First Amendment's protection.
• Because it attempts to supplant medium-specific rating systems that work quite well.
• And because, if implemented, it will homogenize and neutralize many valuable forms of speech.

Interestingly, this legislation has no mention of television programming. It does, however, harness itself to the same strategy used to impose the v-chip rating system on television programming.

There is an irony in that, of course. Congress used the Federal Communications Commission to compel installation of the v-chip in our TVs and culture (in the same way the Media Violence Labeling Act proposes to use the FTC), but the results haven't been quite what was promised. In fact, there is every reason to believe that the rating system has allowed TV programmers to increase the amount of sex and violence.

Even McCain and Lieberman seem to believe that. With two other senators, they recently sent a stern letter to the FCC, complaining of too much 'vulgar and sexual content' on television. They demanded that the FCC investigate whether the networks have violated the legal standard for indecent material as well as the 'public trust.'

Despite that, they plunge ahead with this universal labeling scheme for other media content. No doubt, they have plenty of bipartisan support; President Clinton has said that he supports the idea of universal ratings for the media, too. That still doesn't keep it from being a bad law with major flaws.

This proposal pretends that the 'nature of violence' and 'intensity of violence' are clear and objective terms, not subject to interpretation.

It pretends that it is as easy to apply labels to the content of speech as it is to label food and cigarettes — that speech is no different from ingredients or chemicals.

It pretends that a system can be devised that would fairly — as opposed to arbitrarily — distinguish between 'good' and 'bad' violence in a variety of media, in a plethora of contexts, applying to an infinite range of maturity levels.

And it pretends that the harm of violence in media is settled scientific fact.

No one can make the argument — with a straight face and a clean conscience, at least — that such a scheme would reduce actual violence in our society. Most likely, however, it would reduce the nation's entertainment inventory while the media diverted their resources to devising, implementing and complying with the labeling system.

That means that while pretending to reduce violence in our society, this law would instead reduce the amount of freedom Americans now enjoy. As that trend continues, violence in the media will become the least of our worries.

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

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