A new report from the Federal Communications Commission (FCC) endorses claims that TV violence can increase violent behavior in children, and that existing parental controls are ineffective at limiting child exposure to violent programming. As a consequence, the FCC is encouraging Congressional action to curb "excessively violent programming" on TV.
Among the measures the FCC suggests could be effective, and survive First Amendment scrutiny, are limits on violent programming during certain hours and a requirement that cable companies offer "a la carte" channel selection for consumers. FCC Chairman Kevin Martin commented that the prospect of a legal challenge to some restrcitions should not dissuade Congress from acting. The FCC report was adopted unanimously by the Commission, although two of the five commissioners expressed some concerns. Senatory Jay Rockefeller (D-WV) said he expects to file legislation based upon the FCC's recommendations.
Here is coverage on the report from the Washington Post, LA Times, and AP.
The FCC suggests that "such a definition might cover depictions of physical force against an animate being that, in context, are patently offensive." (p.20) I don't think the patent offensiveness notion, borrowed from indecency law, is a good fit here (among other things, it doesn't really map onto the state interests allegedly at stake). But more to the point, I'm intrigued by one aspect of the FCC's elaboration: "In determining whether such depictions are patently offensive, the Government could consider among other factors the presence of weapons, whether the violence is extensive or graphic, and whether the violence is realistic." (pp. 20-21.)
Just curious: If the violence were especially realistic -- i.e., not cartoon-like, but instead depicting the real human costs of violence -- which way would that cut? I have a feeling I know how the FCC would answer that question -- but it's not at all obvious to me whether that answer would be correct.
I don't want to pay for Animal Planet and Shop@MSNBC when I'm only watching FoodTV, FoxNews, ESPN and A&E.
Question: would the proposed restrictions apply only to shows on the broadcast band, which are subject to greater FCC regulation? I'm still not clear on the FCC's ability to impose time, place, manner regulations on cable channels -- particularly when the TPM regulations are content-based, and they apply only to programming with sex and violence.
Is there case law out there that vindicates this authority under the First Amendment? Surely the HBOs and Cinemaxes of the world are reserving their racier and more violent content for the late hours. Is this because the FCC has told them to, or is it self-imposed?
I do not know if watching violent programming causes violence or not, but I would point out that what few good shows there are right now are usually pretty violent and most are also on cable: Sopranos, The Wire, Battlestar Gallactica, etc.
Me too. The only people opposing it are the cable industry, which makes more profits on bundled programming, their lobbyists/lawyers, and the small/niche programmers, who couldn't survive in a free-market environment. To which I say, good riddance. I can really do quite well without having to click past EWTN and 10 other channels full of annoying televangelists clogging up my TV, not to mention the other crap that comes bundled in cable. Those stations can go bankrupt for all I care. Good. On the other hand, educational programming will still survive, because there's a demand for it - I suspect Discovery, TLC, History Channel, etc. will do just fine a la carte. It's the garbage that will go.
US v. Playboy, 529 US 803 (2000), applied strict scrutiny in striking down a law requiring cable channels "primarily dedicated to sexually-oriented programming" to scramble their signals from 6 AM to 10 PM.
I saw Martin speak this spring and my impression was that a la carte is happening come hell or high water. He sees it as the solution to a lot of ills (violence, indecency, etc.). Wouldn't bother me except I suspect I may end up paying the same amount for fewer channels.
Quite apart from whether I like this (I'm not sure) or whether this is constitutional (depends on how carefully the define what they're doing, although the internet cases that have been cited may not be decisive, given the difference between regulating the internet, where the chance that you're going to stumble upon internet porn by accident is quite small, and TV where you end up watching whatever is being broadcast when you turn it on)
Anyway, apart from all that, I just have to say that it's about time given how anal (pun definately intended) everyone in the US always seems to get about a little bit of sex on TV. As far as I can tell, the rest of the world has still not stopped laughing their asses off about the whole Nipplegate thing.
Martin is being ridiculous. He's all over the cable companies for no reason. They've spent billions of dollars building their networks, they use none of the public airwaves, leave them the hell alone. I would love to disband the FCC.
As for bundling, I'm not sure how many would see bills would go down if the cable services were unbundled. I've seen some fairly pursuasive (to my untrained eye) arguments from economists that bundling provides for the most efficient allocation of resources under a set of reasonable assumptions.
Lastly, in regard to the Ad Council's advertisement currenly displayed at this site...
If people think Louis Armstrong was an astronaut, doesn't that mean we need more/better history education, not more art education (i.e., learning to play the trumpet)?
Not really kidding here.
If not, why not?
Nick
I'm not so sure that a narrow, concrete and non-vague definition is the primary constitutional hurdle. The FCC cites Pacifica (and apparently progeny) to support its opinion that TPM regulation of violence might be constitutional, and they expressly state that only by an analogy which they admit is weak by modifying it with "possible". They further admit that their opinion is speculative by adding that it is only "likely" that congress can craft a constitutionally acceptable statute. From TFA:Pacifica specifically declares that indecency is just a lesser specie of obscenity: In other words, the Communications act of 1934 enables the FCC to regulate indecency, and the court finds that constitutional because of indecency's close enough relationhip to unprotected obscenity.
But what depictions by speech or image of violence is traditionally unprotected by the First Amendment? Only if such depiction exists would a proper definition of a lesser specie have meaning.
There is no doubt the FCC is challenging the Congress to cobble out an acceptably coherent definition by which to recognize constitutionally regulable violence. But implicit and unspoken in that challenge is to find a specie of forbidden speech to which regulable violence bears the same relation as indecency bears to entirely forbidden obscenity.
To what unprotected speech would violence (no matter how well defined) be sufficiently closely related to convince a court that it could be constitutionally regulated?
Sorry, but this last post is missing the point. In order to be OK, a law that on its face regulates speech needs to strike an adequate balance in relation to a legitimate government interest. What "adequate" means here is that it needs to survive strict scrutiny. One example of this is a law forbidding/regulating obscenity, which is justified by the governments legitimate interest in, euh, protecting the moral standards of society or sth. (Look it up in the case law.) When it comes to violence, imho the government would have to show a sufficiently credible connection with actual violence in society, and they would have to show that they haven't gone further than strictly necessary.
EI