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From: Judith Shulevitz
To: Jack ShaferPosted Friday, Sept. 15, 2000, at 3:00 AM ET

Dear Jack:

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If you're right that the Supreme Court would reject any law that Congress or the executive branch would propose to limit the marketing of bang-'em-up-and-slice-'em-and-kill-them-dark-complected-suckers fare to children, why then, I'll fold up my tent and trudge home. Far be it from me to disagree with my favorite American institution. I still think Slate should ask a genuine constitutional scholar to weigh in on this.

In the meantime, I'll try in my amateurish way to show you why I think you're wrong. Clearly, any such law would have to clear several daunting hurdles. (Herewith follows detailed recitation of those hurdles, so readers who succumb to narcolepsy in the presence of legalese should skip to the fifth paragraph.) The first obstacle is the biggest one: The government would have to establish that the advertisements for noncommercial, protected speech (such as Face/Off, Turok, and the songs of Eminem) are commercial speech, and as I said yesterday, the courts haven't really laid down the law on this question.

After that, there are four more steps. Ever since a 1980 Supreme Court case called Central Hudson Gas & Electric Corp. vs. Public Service Commission of New York, the government has had to meet the following conditions when it comes to restricting commercial speech: It has to show that 1) it has "substantial" reason to intervene; 2) the proposed regulation is as narrow as it can be; 3) it directly advances the interest the government claims to be protecting; and 4) the speech in question is in some way misleading or unlawful. Rather unusually, the proposed regulation doesn't have to meet all four conditions—just most of them. ("Each raises a relevant question that may not be dispositive to the First Amendment inquiry, but the answer to which may inform a judgment concerning the other three.") So, the fact that the movies, songs, and games are not themselves "unlawful" doesn't preclude the legislation. It just puts the burden on the government to make a strong case vis-à-vis the other three-and-a-half conditions.

Could it make that case? The task doesn't seem impossible—if the courts say the ads are commercial speech, which is, I admit, a big if. But if that happens, then here's another if. If the government can limit access to pornography, I don't see why it can't limit access to extreme violence. As for making sure that the legislation doesn't overreach—that we use a rifle rather than a shotgun, as you put it—the government could propose some carefully circumscribed ban on airing advertisements on programs, or printing them in magazines, in which 75 percent of the audience is children younger than 13. Or something like that. One thing the government clearly should not do is attempt to dictate the content of those ads—that would propel us into the realm of what's known as "compelled" speech, and the barriers against that are, correctly, fantastically high. As for the question you imagine the justices posing—"Ms. Shulevitz, if you want to put certain entertainments beyond the reach of those under 17, why not pass a law that makes such purchases illegal?"—I can't see them asking that at all. That law would require us to limit distribution of the movies, songs, and games themselves, and that—I believe—means direct censorship of noncommercial, free speech.

Escaping the stifling closeness of the law library for the purer air of campaign politics, you ask whether I'm bothered by the hypocrisy and demagoguery that surrounds this issue. Indeed I am. I thought Lynne Cheney's performance at the Senate subcommittee hearing yesterday was despicable. She's doing everything she can to obscure the issue—and to make people like me look bad. She's for all-out censorship, no matter how broad or unconstitutional. The problem, she says, is "with the product they market, no matter how they market it." In other words, she wants artists to stop making the movies, composing the songs, and, I'd guess, writing the books that offend her sense of propriety. I happily consume a lot of the stuff that offends her. I just don't want it in the eyes, ears, and psyches of my kids—yet. That doesn't seem hypocritical, unless you want to reject all the distinctions between children and adults that we make in American society. And the reason I feel this way, by the way, is not that I think violent media causes crime or degrades the moral fabric of society or any other nonsense like that, either (though I don't think the stuff is good for kids or anything). I just want it left up to me—and not some Hollywood marketer—to decide what's right for my kids.

By the way, you don't make what seems to me your best case against my position—which is this: Why ban the ads when the kids still need my permission to buy or see the violent stuff? My answer: Because kids don't have the defenses against advertising that adults do. They fall for it a lot faster and much, much harder. My objection to Hollywood having created a ratings system and then undermined it through marketing is that they have turned life with young kids into a living hell of nagging and nos, and a house full of them into a miserable battleground.

You deplore what you predict will be the unintended consequences of any law or of Hollywood's voluntary self-regulation. Violent media, you say, will become more alluring and irresistible than ever. I don't agree. If we limit ourselves to the goal of decreasing the amount of air time given to superviolent media, then I'd expect our law's effect to be exactly the opposite of what you anticipate. I'd expect there to be a minute yet significant change in the social atmosphere, in a Gladwellian tipping-point sort of way. Even a small reduction in advertising could mean a potentially huge reduction in public awareness of upcoming megaviolent events. Kids who already had a powerful interest in, and consciousness of, these sorts of things would find out about them soon enough—teen-agers in particular have a genius for nosing out whatever they want to nose out—but the younger kids might just go about their business, never realizing that they'd missed the unbelievably important release date of the latest incredibly sexist and racist and gross computer game. Maybe with less popular awareness, the game would fail to become the must-have purchase of the week. It would be just one more obnoxious thing among the many that kids and parents have to navigate around. That, personally, would satisfy me.

Best,
Judith

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From: Judith Shulevitz
To: Jack ShaferPosted Friday, Sept. 15, 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.

COMMENTS

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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