From: Jack Shafer
To: Judith ShulevitzPosted Saturday, Sept. 16, 2000, at 12:00 AM ET This week the Federal Trade Commission officially accused Hollywood 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.
Dear Judith,
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.
Regards,
Jack
Related in MSN
For more on the FTC report, click here.
From: Jack Shafer
To: Judith ShulevitzPosted Saturday, Sept. 16, 2000, at 12:00 AM ET This week the Federal Trade Commission officially
accused Hollywood 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" columist, debate whether ads for violent entertainment should be regulated, censored, or just turned off.
Reader Comments from The Fray:
The purveyors of violence in movies are not artists. They are highly-paid commercial whores who are trying to make the most bucks they possibly can. The FTC report makes clear just how determined and analytical they are about making that money by going after kids. The only artistry involved is the First Amendment PR they put out. Their only real concerns are over their $*#$* bottom lines.
So I say we as a nation can figure out a reasonable way to take the profit out of this without endangering the ability of someone to make a political point in a film. One very simple, very concrete first step would be this: there is no more "the film has been rated R, the trailer is approved for all audiences" BS--if the movie is R, the trailer is R and you don't show it at a PG or PG-13 movie.
--Mike Kelly
(To reply, click here.)
If it is OK to make something, it should be OK to market it, especially if allegedly parents/adults make the final decision.
--Joe
(To reply, click here.)
[Part of a much longer post, part of a thread that argues out many of the issues.]
The real hypocrisy here is the would-be censors who weasel their way in with a rating system and then use that as an excuse to drag us all further down the slope because 'we agreed with them'. Rating a movie 'R' doesn't mean 'kids shouldn't see it'. That's XXX or NC-17. 'R' means 'some (subtext: overly sensitive) parents might not want their kids to see this'. Whose parents didn't let them see R-rated movies? Mine let me. My friends' let them. Well, except for this devout Christian family that everyone sort of looked at pityingly out of the corner of their eye (pitying them because they couldn't see R-rated movies and the like, of course). Turning a sop for the extreme right into an excuse to sue is such total bull-pocky that I'm chilled to the bone that it's getting as warm a reception as it is.
--Terrycloth
(To reply, click here.)
(9/12)
Reader Comment from The Fray:
Both Culturebox and Press Box appeal to constitutional lawyers to resolve their dispute over what the Supreme Court would do with a restriction on the marketing of R-rated entertainment to children. I am a First Amendment lawyer (I am currently counsel for the ACLU in challenging California's "Son of Sam" law before the California Supreme Court, among other things); here's my take.
While Culturebox is correct to point to the Central Hudson case as setting out the four-part test that is used to determine the constitutionality of regulations of commercial speech, it is important to understand that while the Court still invokes the Central Hudson test, it is increasingly finding commercial speech restrictions unconstitutional under that test. For instance, the Court recently struck down a prohibition on advertising state lotteries in neighboring states where gambling is prohibited. This certainly suggests that the "lawful conduct" prong of the commercial speech test is being de-emphasized. Recent cases emphasize whether the advertising is truthful and non-misleading, which is a recognition that the main interest the government has in regulating commercial speech is to protect against deceptive advertising.
As a result, the Court is likely to be skeptical of arguments that a restriction on non-misleading advertising is constitutional. The advertisements that Culturebox complains about are not misleading. Rather, the issue is whether an entertainment company can truthfully describe its products to children who are not supposed to be able to obtain the product without parental permission. I think that the Court would be extremely skeptical of such a law.
Further, there are two important points about the law that would tip in favor of striking it down. First, as Press Box notes, children are permitted to obtain these products with the permission of their parents. As Culturebox notes, there is a pragmatic concern over letting them see the advertisements, because kids may then beg their parents to let them see the R-rated movie or have the video game. But it is still the parent's decision. And there is a strong argument that advertisements that tell children that "X" is a product that their parents should buy for them is protected under the First Amendment. Or can the government ban all advertising for toys on Saturday morning kiddie shows?
Second, the ratings system itself does not have the force of law. This is tremendously important. In fact, I believe that it would be unconstitutional for the government to require the industry to rate their programs and products. (This would create a tremendous chill on expression, would be vague, and would also be a form of compelled speech which even Culturebox admits is unconstitutional.) But since the ratings system itself is not enshrined in law, it is not illegal to sell a kid an R-rated movie ticket or CD or video game in the first place. And if they are not prohibited from selling these materials to children (unlike, for instance, cigarettes or alcohol), how can they be prohibited from marketing them to children? To take an obvious example, would it be constitutional to ban anyone from wearing a Nazi uniform from within 1000 feet of a school, where anyone else with any other viewpoint is permitted to protest there? If it is legal generally to express ones self in the presence of children, it can't be illegal to express certain messages around children merely because those messages are "harmful". It cannot be the case that the government may permit the marketing of a CD containing lyrics that preach tolerance of homosexuals to children while prohibiting the marketing of a CD that contains lyrics that preach gay-bashing. That is content-based censorship. For that reason, I believe that the Court would strike down what Culturebox seeks.
--Dilan Esper
(To reply, click here.)
(9/18)
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Reader Comments from The Fray:
The purveyors of violence in movies are not artists. They are highly-paid commercial whores who are trying to make the most bucks they possibly can. The FTC report makes clear just how determined and analytical they are about making that money by going after kids. The only artistry involved is the First Amendment PR they put out. Their only real concerns are over their $*#$* bottom lines.
So I say we as a nation can figure out a reasonable way to take the profit out of this without endangering the ability of someone to make a political point in a film. One very simple, very concrete first step would be this: there is no more "the film has been rated R, the trailer is approved for all audiences" BS--if the movie is R, the trailer is R and you don't show it at a PG or PG-13 movie.
--Mike Kelly
(To reply, click here.)
If it is OK to make something, it should be OK to market it, especially if allegedly parents/adults make the final decision.
--Joe
(To reply, click here.)
[Part of a much longer post, part of a thread that argues out many of the issues.]
The real hypocrisy here is the would-be censors who weasel their way in with a rating system and then use that as an excuse to drag us all further down the slope because 'we agreed with them'. Rating a movie 'R' doesn't mean 'kids shouldn't see it'. That's XXX or NC-17. 'R' means 'some (subtext: overly sensitive) parents might not want their kids to see this'. Whose parents didn't let them see R-rated movies? Mine let me. My friends' let them. Well, except for this devout Christian family that everyone sort of looked at pityingly out of the corner of their eye (pitying them because they couldn't see R-rated movies and the like, of course). Turning a sop for the extreme right into an excuse to sue is such total bull-pocky that I'm chilled to the bone that it's getting as warm a reception as it is.
--Terrycloth
(To reply, click here.)
(9/12)
Reader Comment from The Fray:
Both Culturebox and Press Box appeal to constitutional lawyers to resolve their dispute over what the Supreme Court would do with a restriction on the marketing of R-rated entertainment to children. I am a First Amendment lawyer (I am currently counsel for the ACLU in challenging California's "Son of Sam" law before the California Supreme Court, among other things); here's my take.
While Culturebox is correct to point to the Central Hudson case as setting out the four-part test that is used to determine the constitutionality of regulations of commercial speech, it is important to understand that while the Court still invokes the Central Hudson test, it is increasingly finding commercial speech restrictions unconstitutional under that test. For instance, the Court recently struck down a prohibition on advertising state lotteries in neighboring states where gambling is prohibited. This certainly suggests that the "lawful conduct" prong of the commercial speech test is being de-emphasized. Recent cases emphasize whether the advertising is truthful and non-misleading, which is a recognition that the main interest the government has in regulating commercial speech is to protect against deceptive advertising.
As a result, the Court is likely to be skeptical of arguments that a restriction on non-misleading advertising is constitutional. The advertisements that Culturebox complains about are not misleading. Rather, the issue is whether an entertainment company can truthfully describe its products to children who are not supposed to be able to obtain the product without parental permission. I think that the Court would be extremely skeptical of such a law.
Further, there are two important points about the law that would tip in favor of striking it down. First, as Press Box notes, children are permitted to obtain these products with the permission of their parents. As Culturebox notes, there is a pragmatic concern over letting them see the advertisements, because kids may then beg their parents to let them see the R-rated movie or have the video game. But it is still the parent's decision. And there is a strong argument that advertisements that tell children that "X" is a product that their parents should buy for them is protected under the First Amendment. Or can the government ban all advertising for toys on Saturday morning kiddie shows?
Second, the ratings system itself does not have the force of law. This is tremendously important. In fact, I believe that it would be unconstitutional for the government to require the industry to rate their programs and products. (This would create a tremendous chill on expression, would be vague, and would also be a form of compelled speech which even Culturebox admits is unconstitutional.) But since the ratings system itself is not enshrined in law, it is not illegal to sell a kid an R-rated movie ticket or CD or video game in the first place. And if they are not prohibited from selling these materials to children (unlike, for instance, cigarettes or alcohol), how can they be prohibited from marketing them to children? To take an obvious example, would it be constitutional to ban anyone from wearing a Nazi uniform from within 1000 feet of a school, where anyone else with any other viewpoint is permitted to protest there? If it is legal generally to express ones self in the presence of children, it can't be illegal to express certain messages around children merely because those messages are "harmful". It cannot be the case that the government may permit the marketing of a CD containing lyrics that preach tolerance of homosexuals to children while prohibiting the marketing of a CD that contains lyrics that preach gay-bashing. That is content-based censorship. For that reason, I believe that the Court would strike down what Culturebox seeks.
--Dilan Esper
(To reply, click here.)
(9/18)