This week the Federal Trade Commission officially accusedHollywood of intentionally luring children to violent movies, TV programs, and video games. Although the FTC doesn't support legislation of entertainment industry marketing, Al Gore might, and Slate's "Culturebox" columnist, Judith Shulevitz, does too. In this conversation, she and Jack Shafer, Slate's deputy editor and "Press Box" columnist, debate whether ads for violent entertainment should be regulated, censored, or just turned off.
Having dazzled Slate readers with our legal kung fu, why don't we abandon our dot-com incarnations and register to take the bar? Shafer & Shulevitz, First Amendment Attorneys at Law! OK, OK, we'll call it Shulevitz & Shafer.
You've all but mastered commercial speech doctrine with your reading of Central Hudson, but don't expect to handle the cases that come Shulevitz & Shafer's way. I deliberately cited Playboy and Reno vs. ACLU to make my point rather than Central Hudson because Playboy and ACLU are more analogous to the hypothetical in which the government steps in to regulate movie ads. Both Playboy and ACLU commingle commercial speech issues with noncommercial speech issues. Central Hudson was a pure commercial speech case. (The state of New York prohibited a power company from running ads that encouraged its customers to use more electricity and, of course, the court struck the law down.)
The court's reluctance to regulate commercial speech about noncommercial speech, which goes to the core of both in Playboy and ACLU, indicates that it wouldn't allow the government to regulate ads about movies, which are protected noncommercial speech. For the court to rule that movie ads falsely imply that the movies in question are safe for children would also require the court to find that the movies themselves are unsafe for children. Please find me a case in which the court found a book, movie, CD, or game unsafe for children. Obscene or indecent, yes. But never unsafe. (If we decide to move this topic to a constitutional law scholar for advanced adjudication, as you suggest, please make mine Laurence Tribe.)
You perplex me with your denunciation of Lynne Cheney's Senate subcommittee performance, which I thought would delight you. In essence she said, goddamn the producers of violent films, goddamn the marketers, but keep your goddamn hands of my First Amendment! When exactly did Republicans and Democrats switch places, with the Republicans becoming the free-speech advocates and enemies of privacy-invading technologies such as the FBI's Carnivore program, and the Democrats becoming the Nazi/Stalinists? Is this Newt Gingrich's true legacy?
A couple of times in your dialogue entries, you pull rank on me with references to your experience as a parent and what you assume is my lack of experience. Alas, it is true that my seed has not yet found purchase. But as long as this dialogue is about truth in advertising, shouldn't we acknowledge that you're almost as big an amateur at this parenting business as I am? Let's revisit the subject of raising G-rated children in an R-rated world in a couple of years after you perfect the art of telling your two boys "no."
I just happen to be in New York this weekend. How about if we knock off work early for a matinee screen of the re-release of A Clockwork Orange? I'll even buy the tickets for your boys.
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For more on the FTC report, click here.