National Regulation

Violence Regulations vs. Free Speech

10/24/2004 8:00 PM Eastern

Washington— Would TV violence regulations mug the Constitution?

With Congress growing increasingly worried about blood and mayhem on television, cable operators, broadcasters, and satellite carriers are on the defense as to whether such content is damaging to children and prompts some kids to act out what they see on the tube.

Congress has asked the Federal Communications Commission to study the TV-violence issue — and especially its impact, if any, on children — and whether regulation is necessary.

RULES TO APPLY

While far from reaching any conclusions, the agency has floated the idea of taking current TV and radio indecency rules and applying them to violent programming aired by broadcasters, cable, and DBS.

In comments filed Oct. 15, the cable industry’s main trade association told the FCC that although cable operators take the issue seriously and have taken affirmative steps to empower parents to block any programming, governmental action to ban or limit violent programming would offend the First Amendment and fail to gain judicial approval.

“Any direct regulation of violent themes and images on cable television would constitute a content-based regulation of high value speech in violation of the First Amendment,” said the National Cable & Telecommunications Association, quoting University of Chicago law professor Geoffrey Stone. The cable trade group hired Stone to assess TV violence and free-speech protections.

The FCC proposal to broaden the indecency rules to include violence could mean a ban on violent programming between 6 a.m. and 10 p.m., the so-called “safe harbor” approach. Violent programming exhibited outside the eight-hour, late-night window could result in fines of up to $32,500 per offense.

The NCTA said the FCC at present has no authority to limit or ban violent cable programming. The agency, NCTA added, would first need new legislation from Congress, but even “Congress would itself be preempted from taking such action by the First Amendment.”

A TV violence bill with a safe harbor passed the Senate this year, but the measure sponsored by Sen. Fritz Hollings (D-S.C.) was stripped from a defense-spending bill three weeks ago and appears dead, though Congress is scheduled to return Nov. 15 for a lame-duck session.

NCTA SEES PROBLEMS

The NCTA identified several problems with regulating violent programming. Any effort would have difficulty in just defining violence in the first instance and even more difficulty distinguishing harmful violence from benign violence, it said.

Five trade groups, including the National Association of Broadcasters and the Satellite Broadcasting and Communications Association, noted that the government would have trouble establishing a link between TV violence and criminal violence because the national crime rate measured by the Justice Department has reached its “lowest level since [Justice] began conducting the survey in 1973.”

The groups also argued that Justice’s measurement of juvenile crime has dropped since 1994.

Establishing a causal link between TV violence and street violence was important, the NCTA said, because without it the government could not establish that regulating TV violence to protect children was, in fact, a compelling interest.

“As existing social science reveals, exposure to violent themes and images may have both good and bad effects, depending on the individual, the context, and the manner of presentation. In light of this prevailing uncertainty, it is impossible to say that the government has a 'compelling’ interest in shielding children from violent themes and images,” NCTA consultant Stone concluded.

Even if a compelling interest were established, at least with regard to cable, the government would not be able to establish that the safe-harbor approach was the least restrictive means.

The NCTA repeated what the U.S. Supreme Court said in a 2000 cable pornography case — that banning an entire class of programming for two-thirds of the day is not the least restrictive means with regard to cable because cable subscribers have the ability to block programming with set-top boxes.

The top 10 cable companies have pledged to provide free blocking equipment to subscribers that need it.

Quoting the Supreme Court decision in U.S. vs. Playboy Entertainment Group Inc., the NCTA said the majority held that “targeted blocking is less restrictive than banning, and the government cannot ban speech if targeted blocking is a feasible and effective means of furthering compelling interests.”

PAPPAS BREAKS RANKS

The sentiment against TV-violence regulation was not unanimous, as Pappas Telecasting Cos. decided to break ranks with major elements of the broadcast industry.

Pappas called for violence protections that would apply to all electronic mass-media companies.

Pappas told the FCC that “there is an established link between violent programming and violent and aggressive behavior of children, and Pappas believes that steps must be taken to eliminate this problem.”

Pappas endorsed the safe-harbor approach for broadcasting, cable and satellite providers, but not for phone companies that act as common carriers with no control over programming decisions.

Pappas said some exemptions would be appropriate for “league-sanctioned sporting events,” such National Football League, National Basketball Association and National Hockey League games. But Pappas called for regulation of “programming that masquerades as sports programming, such as professional wrestling and 'reality’ programming.”

Based in Visalia, Calif., Pappas is the largest privately held TV-station group in the U.S., controlling 25 stations reaching about 15% of TV households.

The company owns five Fox and two CBS affiliates. Pappas’s Fox affiliates were just fined by the FCC $7,000 each for the April 2003 airing of Married by America, which the agency said was indecent. But the company’s CBS stations were not fined for airing Janet Jackson’s breast exposure during the Super Bowl halftime show.

Pappas attached to its FCC comments a Dec. 12, 2003 letter to Fox Networks Group CEO Tony Vinciquerra that complained about surging profanity and “graphic and disturbing violence” on the network, referring specifically to the primetime hit The OC.

Pappas asked Fox to provide all pre-recorded primetime and late-night programming several hours before broadcast to allow it to edit “illegal, obscene, profane and otherwise inappropriate content, as it is our right and duty to do.”

Pappas senior executive vice president and COO Howard Shrier said in an interview last Monday that Fox replied, but effectively declined to provide early copies of network programming.

Pappas has installed time-delay equipment in a few stations to delete inappropriate content, Shrier said.

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