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from: Judith Shulevitz
to: Jack Shafer

Posted Wednesday, Sept. 13, 2000, at 3:00 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 Jack,

OK, let's face it. The Democrats couldn't have asked for better timing for the release of the Federal Trade Commission report on the marketing of violent fare to kids, and both Al Gore and Hillary Clinton are demagoguing this one completely. But just because something is political doesn't mean it's wrong. We have to examine the question on its merits: Should there be tighter restrictions on the way violent fare is marketed to children?

Let me back up here and make it clear that we're not talking about censorship—contra Slate's own Breakfast Tablers, who seem to think we are. Nobody wants to regulate what's actually in violent movies, CDs, and video games. The subject of the FTC report and this discussion is the marketing of those things. So let's rephrase the question this way: Given that the entertainment industries have agreed to designate certain movies, CDs, and video games as too violent for children, should they then be allowed to turn around and advertise those products on TV and radio stations, in print media, and on Web sites aimed at those same children?

I think the answer is no—as long as we can find a constitutional way to prevent it.

Why? Well, for one, it is a well-established principle that children should be treated differently from adults, even when it comes to such protected categories as speech. The Supreme Court has said that the "well-being of its children is of course a subject within the State's constitutional power to regulate." If you agree with that, then you have to agree that there's at least the possibility that violent media are among those things the state has an interest in keeping kids away from, along with obscene media or ads that tell children it's admirable to smoke.

Second, it seems to me that complicated constitutional concerns aside, this is a straightforward consumer issue—a matter of good faith. If the industries agree to adopt a ratings system, which is essentially a kind of consumer aid to parents, then they have an obligation to live up to it. (I mean, if they don't like the ratings system, then they should change it, or make the principled case that they shouldn't have ratings in the first place. The one thing I think the industries shouldn't do is institute ratings then flout them. That's a form of false labeling, it seems to me.) The FTC report makes it clear that they are not living up to their own ratings in two ways:

  1. The entertainment industry is neither explaining its own ratings systems very well to parents, nor is it making sure that they're enforced in movie theaters and in stores. For instance, I never knew there was a violence-related ratings system for video games—which puts me in the near-majority of parents, according to the FTC report. I'm not lazy or devil-may-care. Video-game producers just don't seem interested in having me know the details of their rating system and haven't put the word out very well. It's not only parents who are left in the dark. Video-game store clerks seem equally unaware that children aren't supposed to buy M-rated products (M stands for mature, which correlates roughly to what they call, in video-game terminology, "realistic blood-and-gore"). According to an experiment conducted by the FTC, children were able to buy M-rated games 85 percent of the time they tried.



  2. The studios and music companies and video-game producers are trying to do an end run around their own ratings systems. There's something frankly hypocritical about Miramax giving a movie an "R," then devoting a large portion of the movie's ad budget to media buys in TV and radio shows and magazines and Web sites devoted primarily to children who are supposed to be too young to decide for themselves whether or not to go. If you're going to have a system that designates age-appropriateness for viewers of your products, then it follows that you should have the same system for viewers of your advertising—to the best of your ability.

Here's the thing, Jack. Have you ever agreed to let a child do something because he nagged and nagged and nagged you to let him? Part of my job as a parent is making sure that my children see only what they can handle. But I am no match for the entertainment industry plus the advertising industry and their multimillion-dollar budgets. You have no idea—or maybe you do—how hard it can be to say no to a child who has been watching a trailer on his kiddie station for some R-rated movie or M-rated video game for the past three weeks, especially when all the other parents are saying yes.

That's why I agree with Bill Clinton when he says that even if marketing unsuitable material to children isn't illegal, it's still wrong. I don't want the government to do anything unconstitutional—I just want it to do something.

Best,

Judith

dialogues
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123456
from: Judith Shulevitz
to: Jack Shafer

Posted Wednesday, Sept. 13, 2000, at 3:00 AM ET
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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.
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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)

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