Dear Jack:
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StumbleUponAs they say at Washington hearings such as the one going on today—about our very own topic!—"I'm glad you raise that point, Senator." I'm glad you raise the Media Violence Labeling Act, Mr. Valenti, because it allows me to underscore my main message—the elusive question of what we are not talking about in this dialogue, which is the same as what the FTC is not talking about in its report. You, me, and the FTC are not talking about 1) the censorship of noncommercial speech, otherwise known as free expression, otherwise known as the movies, music, or video games themselves; or 2) the prior restraint of same. Here's another reason your example comes in handy: It lets me stress that I'm not in favor of anybody doing anything unconstitutional or, rather, anything that encroaches on the mainstream understanding of the First Amendment. (A mainstream understanding, that is, as opposed to the libertarian view, which you hold, and which is disdainful of all restrictions on speech, commercial or non.)
Well, bully for you, Judith! you say. So you draw fine distinctions. But what about them grandstanding politicians and their slippery slope? Well, your buddy Mr. Ronald D. Rotunda does a good job of pointing out the MVLA's glaring weaknesses. It calls for unnecessarily broad and punitive measures that leave producers of the movies, etc., no recourse—no swift hearings, no appealable findings of violence for each individual work, etc. This goes way beyond anything the anti-pornography crowd ever slathered onto works deemed obscene—and while I personally consider obscenity a lesser offense than violence, the Supreme Court has been far more willing in the past to restrict stuff it thinks is dirty than stuff filled with gore. In short, the bill stands little chance of surviving a legal challenge. The trusty old U.S. Constitution would never allow an act of demagoguery like that to become (or stay) the law of the land.
So what are we talking about? Advertisements. Marketing campaigns. A deliberate policy of targeting children with material deemed unsuitable for them. Although the courts haven't yet ruled definitively on the status of advertisements for movies, music, and other noncommercial speech, in all likelihood the ads themselves constitute commercial speech, which has been defined as speech that does "no more than propose a commercial transaction." Commercial speech enjoys fewer protections than free expression, and a good thing too—that's the setup that allows the FTC to monitor unfair or deceptive marketing practices, prevents lawyers from sending pestering direct-mail letters to families of accident victims, and bans commercial solicitation on the grounds of public universities. (Yes, my libertarian friend, I think those things should be banned—I believe that there should be commerce-free spaces in public life, and I look to government to enforce them. Who else can?)
What do I think should be done? I can't say for sure, although the MVLA clearly isn't it. I'm not a constitutional scholar, and I don't know what the government can and cannot legally do. Should the FTC prosecute the studios et al. for deceptive marketing practices? Sounds plausible, but even Joe Lieberman, speaking today before the Senate committee, sounded like he wasn't sure the FTC had the authority to do that—and any planned expansion of the FTC's authority would rightly require a lot of First Amendment scrutiny. (Actually, Slate should probably ask a constitutional lawyer to weigh in on this point, as well as assess all the options.) My point is simply that the case against the entertainment industry has merit to it. Anyway, with Disney's announcement yesterday that ABC won't show ads for R-rated movies on prime-time television, we seem to be headed for the best-case outcome, which is that the media will start to live up to its own announced standards.
Let me take some of your other points one by one.
1) How can we know what we're talking about if the FTC won't release the names of the 35 movies marketed to children? You're onto something there—though not a McCarthyesque plot to tarnish Hollywood. The FTC maintains confidentiality in all its trade reports. That's how it gets industries to agree to send in the necessary data. No, what you've stumbled onto is the inadequacy of the ratings system. There's a world of difference between the graphic Reservoir Dogs and the cartoonish Face/Off, you observe, and merely saying they both have an "R" doesn't help us distinguish between them. Quite right! As the FTC demonstrates in its report, even if we saw the ads for both of them, we wouldn't be able to tell the difference between them or even the difference between them and some psychologically wrenching but otherwise tame Ingmar Bergman flick. Give us more information! is the FTC's and the parents' cry. Don't just slap on a label and fail to explain it! Maybe this is a good time to start talking about a finer filter than the old PG-13 and R ratings, which, as you point out, have become part of the marketing machinery.
(Interestingly, you assume that I'd be more upset if my kids saw Reservoir Dogs than if they saw Face/Off—but you've got it backward. As Slate's critic David Edelstein once wrote in some essay I can't seem to dig up in the Slate archives, what's laudable about icky violence is that it reveals the physical consequences of aggression, whereas cartoonish violence seems clean and consequence-free. I'd rather my 10-year-old saw neither movie—but if he's gonna see one, hopefully no earlier than say, 13, I'd rather he saw Reservoir Dogs. Better that he understand that violence is a matter of limbs and blood and death than think that criminal violence is all Rocky and Bulwinkle.)
2) Why shouldn't Hollywood market R-rated stuff to kids if they're allowed to go to the movies under certain conditions? Because it's obviously an effort to circumvent the system. Hollywood/the music industry/video-game makers pretend to give parents the power to say no, then go behind parents' backs and says, hey, c'mon kids, you'll like it! Hollywood et al. pit themselves against the parents, and more often than not, Hollywood et al. win. You should hear parents get together in my neighborhood and complain about their loss of control over their children's media intake. If they say no, someone else's parent will say yes, and so all the kids troop over to that permissive parent's house to play Turok or whatever happens to be the violent flavor of the week. What are the parents supposed to do, forbid their children to leave the house? (This is off-topic a bit, but I happen to think that video games are the real villains here. They're infinitely more violent and creepy and more intrusive than movies or music ever manage to be—as Kurt Andersen put it in Inside.com yesterday, "The gaming experience is immersive, emotionally and neurologically 'real' in a way that none of the older media can be.")
Last, on your anything-to-feel-alive point: You've got to be kidding. If you think hanging around the house playing M-rated video games for hours on end or going to the theater to see Face/Off makes a child more alert, happy, attentive, responsive, engaged, what have you, I just have to think that you've never spent much time with kids. In excess, which is how kids consume these things if they can, these are the most soul-deadening activities imaginable. And why, exactly, do we need to produce lesions on kids' brains to convince you that this shit is harmful to them? There are lots of proven smaller effects that seem just as bad: a pervasive sense that the world is a cruel and predatory place, a general increase in mindless cynical 'tude, a deadening of the social response to violence, etc., etc. But that's not even what's at stake. To me, the issue is: The entertainment peddlers know we're worried about violence—whatever our reasons happen to be—and they tell us they're going to help us keep it at a distance from our children. Then they cheat the very system they've set up to placate us. If that's not deceptiveness, what is?
Yours,
Judith
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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)