A. The FTC report

Let us start with the FTC report, Marketing Violent Entertainment to Children: A Review of Self-Regulation and Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries. The executive summary of this report noted that “parents, social scientists,” and others “have struggled to understand how and why some children turn to violence. The dialogues took on new urgency with the horrifying school shooting on April 20, 1999, in Littleton, Colorado.”⁴

However, not until we turn to an appendix do we find the FTC's conclusion on causality, written in the complex style so common to bureaucrats. The FTC advises us that the researchers are in “general agreement” that media violence “likely explains a relatively small amount of the total variation in youthful violent behavior.”⁵

Ultimately, the FTC report found an insignificant causal connection between the entertainment industry and violence in America. Yet the FTC did not focus on this point, but instead criticized the entertainment industry for marketing products that are often not suitable for the young. Perhaps many reporters never read the relevant appendix, for the typical media story was that the FTC report “expos[ed] with impressive particularity the devastating impact that Hollywood entertainment is having upon America's children.”⁶

More than a few public officials and lawyers reacted to the FTC report by recommending that the states sue the Hollywood entertainment industry for the allegedly misleading way it promotes its products, just as states earlier sued the tobacco industry for its advertisements.⁷

The attorneys general of most states had instituted litigation against the tobacco companies that marketed in the United States, claiming that their marketing was misleading, induced smokers to think that smoking is not dangerous, and did not disclose internal tobacco company studies that showed the connection between smoking and ill health. The states wanted reimbursement for the medical payments they made on behalf of sick smokers. The parties eventually settled, with the tobacco companies agreeing to pay billions of dollars to the states: over a twenty-five year period the money goes to the states, not to the smokers.⁸

Whatever one thinks of the nationwide tobacco settlements involving the states and the tobacco companies, the settlements were based on four arguments that do not apply to Hollywood advertising.⁹

1. It is against the law to sell cigarettes to children. In contrast, it is not illegal for children under age seventeen to attend R-rated movies or for twelve-year-olds to watch PG-13 movies. The ratings are voluntary guidelines and impose no legal duties on children, parents, or the movie industry.
2. The underlying activity of smoking is not a constitutionally protected activity. The government could ban the sale of tobacco just like some jurisdictions ban the sale of alcohol. In contrast, watching movies, listening to CDs, and playing video games are, unlike smoking, a matter of free speech protected by the Constitution's First Amendment.
3. The Surgeon General has determined that smoking causes cancer and other illnesses. We know from the FTC report that the agency found no causal relationship between entertainment and violence: R-rated movies do not cause tragedies like the Columbine shootings.
4. Plaintiffs in the tobacco cases argued that the tobacco industry's advertisements were misleading because they pictured smoking as fun and de-emphasized the cancer risks, even though the advertisements also carried the Surgeon General's health warning. In contrast, it is hard to argue that advertising is misleading when Hollywood advertises an R-rated movie as “R-rated.”

While few legal commentators expect that the states' attorneys general will be successful it they join forces and file a lawsuit against Hollywood, this does not mean that the issue is dormant. Instead of litigation, there are proposals for legislation. Let us turn to this legislative approach.

B. Proposals for reform

The FTC's report accused the entertainment industry of being deceptive and warned of government action. That action may eventually come to pass. In April 2001, various U.S. senators introduced S. 792, the proposed Media Marketing Accountability Act of 2001, a bill designed to prohibit what it called “the targeted marketing to minors of adult-rated media as an unfair or deceptive practice, and for other purposes.”¹⁰

Yet this formulation ignored what should be obvious: that it is not “deceptive” to advertise an adult-rated film as “adult-rated.”

This bill is hardly a legislative orphan; it was merely the most prominent of the recent proposals on the federal level.¹¹

Similar legislation has been introduced in more recent sessions of Congress.¹² We should expect these efforts to mandate media accountability to continue on the national level. In addition, since the beginning of 2003, legislators in various states and cities have introduced sixteen anti-video game bills.

These proposals raise three key issues of law and policy. First, however well-intentioned these proposals are, all of them are subject to the iron law of unintended consequences. Banning or restricting minors' access to certain forms of entertainment may increase the desire of America's youth to view R-rated movies, or listen to taboo musical lyrics, or play mature or M-rated computer games, because regulation may give such entertainment the air and smell of forbidden fruit. It is sometimes said that the “stolen watermelon tastes sweeter.”¹³

When the government seeks to restrict some expression, it supplies that expression with free publicity, which may encourage individuals to view or hear or experience that expression, so that they can discover for themselves what the fuss is all about. If you want a great turnout, put a “banned in Boston” sign on the movie marquee.

Second, whenever the United States seeks to limit free speech for ostensibly good reasons—whether that speech relates to movies, music lyrics, electronic games, or the wide-open new frontier of the Internet—it gives unintended support to foreign dictators who endeavor to restrict speech for less noble reasons.¹⁴

These dictators would like to argue, by way of example, that even the United States concedes that there is a need to restrict certain types of speech, or limit access to the Internet, or dampen people's interest in certain products by prohibiting truthful speech about those products. Supreme Court decisions that protect the First Amendment undermine this argument.¹⁵

Third, and the primary focus of this paper, is the issue of the constitutionality under the First Amendment of restrictive proposals such as S. 792. While the professed goal to “save our children” is one to which we all subscribe, free speech doctrine, as we shall see, does not accept this shibboleth as a cloak for limiting the free speech of adults.¹⁶

The case law teaches that if the government wants to make Hollywood more accountable, the preferred remedy is more speech, not less. Government officials certainly may use their bully pulpits to persuade people not to choose certain types of entertainment, but can they reach that goal by restricting the marketing of entertainment when the underlying product is fully protected by the First Amendment, simply because that marketing reaches children? Federal and state governments cannot ban PG-13 films; can they ban truthful advertising about such films so that fewer ten-year-olds will nag their parents to see PG-13 movies?

A. The dichotomy between commercial and noncommercial speech

Under modern American constitutional law, ‘commercial speech’ receives less protection under the First Amendment than other speech, such as political campaign speech.¹⁷

(I shall discuss the distinction in greater detail in subsection C, but ‘commercial speech’ is often defined as speech that proposes no more than a commercial transaction, such as an offer to sell a good or service at a particular price.) As a general matter, the First Amendment prevents the government from restricting expression because of its message, its ideas, its subject matter, or its content.¹⁸ However, if the speech is ‘commercial’, the government has greater power to restrict content.¹⁹

The reasons for Court's bipolar position are not self-evident. As William Van Alstyne has noted, the Constitution places very few roadblocks in the way of the government banning or taxing products directly, so there is less need for regulators to turn to restricting speech in order to dampen demand for a product or service. Far from commercial speech warranting a more relaxed standard, one

If the government seeks to dampen demand for a particular sort of product, such as high-energy consuming air conditioners, it has many tools at its disposal, and there is no compelling reason to restrict the advertising that promotes energy-inefficient air conditioners. The government can simply ban air conditioners that do not meet certain minimum standards, or the government can impose a heavy tax on inefficient air conditioners. If the government really believes that consumers are at the mercy of advertisers, it can use the money that it raises from taxes to pay for counteradvertising to educate people about the need to conserve energy.

Given all the powers that the government already has because of the deference that the Court has given to economic regulation of business, it is not necessary for the government to limit truthful speech in order to achieve its objective of reducing the number of inefficient air conditioners.²¹

In contrast, the Court's more active review of political speech gives the government significantly fewer choices, for free speech cases impose severe limits on the government's power to regulate “who may lawfully form a political party, solicit memberships, field candidates, make extravagant appeals” and “seek to (mis)lead voters as to their own best interests, vote for their ‘product,’ and take over the reins of government itself.”²²

Perhaps someday the Court will reevaluate its position on its comparatively weaker protection for commercial speech, but for now it seems settled that government has broader powers to regulate commercial speech than it has to regulate political speech. Thus, the government could ban misleading commercial speech but not misleading political speech.²³

Hence, we must first turn to the basic principles of free speech to determine if the marketing of movies, music, and electronic games should be judged as ‘commercial speech’.

B. The marketing of products that are constitutionally protected

Normally, we think of ‘advertising’ as obviously ‘commercial speech’, but the advertising of entertainment is different than advertising other products such as prescription drugs or bananas because advertising of entertainment promotes underlying products (e.g., movies, electronic games, or music) that receive the full protection of the First Amendment.

As discussed below, if a movie were “obscene” in a First Amendment sense, a state or the federal government could make it a crime to show the movie. A state could prohibit advertising that markets this obscene movie for the same reason it could prohibit advertising for any illegal act, such as a want ad for a hit man or an advertisement for a position limited to white males when the law bans racial and sexual discrimination in hiring.²⁴

But the cases hold that if a movie is not obscene, then it enjoys full First Amendment protection.

Consider the example of the New York Times Company, a publicly traded company that publishes the New York Times, a daily newspaper. The Times Company makes money selling its news and commentary. In the case of marketing of commercial speech, such as an advertisement that promotes diet pills, the government could prohibit “misleading” speech. Yet, the case law does not hold that the government could prohibit, as misleading, an advertisement for the New York Times that markets the newspaper as giving readers “objective news” or “all the news that is fit to print.” The Times Company may print either slogan in its newspaper or on its Web page. Some people may regard the New York Times as objective and others may disagree, but this is a not a dispute that the First Amendment allows the government to resolve.

When commercial speech is at issue, often the underlying product is not constitutionally protected in the sense that the New York Times, or other newspapers, or movies, art, and political speech are protected. Compare advertising the Times to advertising a prescription drug price. In the latter case, the underlying product is not constitutionally protected because the state can regulate the purchase of the drug; in fact the state does regulate who may buy the drug by requiring the purchaser to obtain a prescription. Even further, the federal government can ban the drug and allow no one to buy it if the Food and Drug Administration (FDA) finds the drug to be unsafe or ineffective. Yet the Supreme Court has held that states cannot forbid truthful price advertising that markets prescription drugs even though that advertising reaches children and other people who cannot lawfully purchase the product because they do not have a prescription.²⁵

Advertising movies, music recordings, and video and computer games serves to market underlying products that are not only legally available but also constitutionally protected. Hence, whatever the First Amendment protections are for marketing prescription drugs, the protection for advertising entertainment-related products should be at least as great or even greater. Marketing restrictions against entertainment-related products have only one purpose: to dampen demand for a product that the government cannot ban because the First Amendment fully protects it.²⁶

The avowed purpose of federal and state proposals to restrict the marketing of entertainment is to reduce demand for the underlying product by restricting truthful advertising about it even though the underlying product is constitutionally protected, since the government cannot directly reduce demand by banning the product or heavily taxing it. The Media Marketing Accountability Act of 2001 (S. 792), a typical proposal, candidly states that the purpose of its marketing constraints are to “restrict, to the extent feasible, the sale, rental, or viewing to or by minors of such products.”²⁷

The proposed laws would not directly ban a video game or R-rated movie or explicit music recording because they cannot constitutionally do that,²⁸

but they aim to ban advertising about such products in the hope that children, if kept in the dark, will be less likely to play the video game, or see the movie, or buy the music. If children are likely to be in an audience exposed to such advertising, the proposals typically seek to ban the advertising. However, parents have the legal right to take their children to see R-rated movies simply because the law does not forbid it.²⁹ The theory of the proposed laws appears to be that if fewer children see the advertisements for R-rated movies or violent video games, et cetera, then they are less likely to nag their parents about them. We know that adults buy 90 percent of all video games, which means that parents are buying many of the violent or mature-rated games for their own children.³⁰

C. The Central Hudson test

The normal test in evaluating laws governing the content of entertainment is that the courts will evaluate the law with ‘strict scrutiny’.³¹

To survive strict scrutiny, the law must be “narrowly tailored” to promote a “compelling” government interest, and if a “less restrictive alternative” would serve the government's purpose, the legislature must use that alternative.³²

‘Strict scrutiny’ is the highest test that the Court employs to assess the validity of government regulations. Very few laws survive the strict scrutiny test, which represents very active judicial review. In contrast, the weakest or least active test is the ‘rational basis test’. Under the rational basis test, the Court will ask only whether it is conceivable that a regulation or classification bears a rational relationship to an end of government that is not prohibited by the Constitution. So long as it is arguable, or “rational,” that the legislative branch of government had such a basis for creating the classification, a court will not invalidate the law.³³

For example, in 1979 the Court held that it is “rational” for the government to require foreign service workers to retire at age sixty, even though many workers are still quite capable at age sixty-one or beyond and even though the federal Civil Service Retirement System at the time did not mandate retirement until age seventy.³⁴

The Court, many years ago, announced that the strict scrutiny test does not apply to commercial speech. Before 1975, speech that was viewed as commercial received no First Amendment protection.³⁵

Since then, the Court has ruled that the First Amendment offers greater protection to commercial speech, but it still receives less protection than noncommercial speech.³⁶ The Court applies to commercial speech a standard that is somewhere between strict scrutiny and rational basis.

The leading case articulating this intermediate standard is Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980).³⁷

The Court held that commercial speech deserves some First Amendment protection, but the state could regulate such speech if it satisfies a four-prong test:

The reference to “whether the asserted governmental interest is substantial” is the Court's way of indicating that it is applying an intermediate test, somewhere between the “compelling government interest” standard of strict scrutiny and the “rational relationship” standard of the most deferential test.

Because Central Hudson gives commercial speech less protection than the First Amendment gives to other speech (such as movies, art, or newspapers), it becomes important to determine if the marketing of entertainment is ‘commercial’ or ‘noncommercial’ speech; that is, does the marketing of entertainment receive the limited protection of the commercial speech doctrine or the full protection of the First Amendment?

As noted above, ‘commercial speech’ is often defined as speech that proposes no more than a commercial transaction, such as an offer to sell a particular good or service for a specified price. The Court has referred to what it calls a “ ‘commonsense’ distinction” between commercial speech, which “occurs in an area traditionally subject to government regulation, and other varieties of speech.”³⁹

Sometimes this definition is not as commonsensical as one would think. Could the state ban or severely limit the advertising of a newspaper, such as the New York Times or Chicago Tribune, because the advertising merely is an offer to sell a newspaper? We know that the contents of the newspaper itself are fully protected by the First Amendment. Should the free speech analysis change because the movie section of the newspaper advertises R-rated movies and children can read the newspaper?

A few examples will illustrate the lesser protection given to commercial speech compared to noncommercial speech. First, there is the issue of regulating speech based on its content. The First Amendment seldom allows the government the power to restrict noncommercial expression because of its message, its ideas, its subject matter, or its content.⁴⁰

In contrast, the Court is less troubled by regulation of commercial speech based on content because commercial speech has a “greater potential for deception or confusion in the context of certain advertising messages.”⁴¹ Hence, the federal courts allow some content-based restrictions on commercial speech in order to prevent misleading speech, such as making illusory or delusive health claims for a product.⁴²

While the Court will allow important restrictions on misleading commercial speech, it will not allow similar restrictions on noncommercial speech. Thus, the Court will not allow a defamation action that serves to punish speech, for example, a suit against a newspaper for printing an advertisement criticizing a government official, even though the government official claims that the advertisement is misleading. In New York Times v. Sullivan (1964), a defamation action, the Court held that the plaintiff, a government official, would have to demonstrate not merely that the defamatory speech was misleading but also that it was false, that it was materially false, and that it was knowingly false.⁴³

One can understand this standard better by looking at the facts of New York Times v. Sullivan.

Sullivan, a police commissioner, sued the New York Times, claiming that he had been libeled by statements in a full-page advertisement that the Times published on March 29, 1960, titled “Heed Their Rising Voices.” The advertisement began by stating: “As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.” Of the ten paragraphs in the advertisement, the third and a portion of the sixth were the basis of Sullivan's claim of libel. The third paragraph said:

The sixth paragraph said, in part:

It was, in the words of the Supreme Court, “uncontroverted” that some of the statements were inaccurate or false, but they were not “materially false.” For example, although

Furthermore, the Times did not make any “knowingly” false statements. Although the Times could have checked its old newspaper files to determine what songs the students really sang, the “mere presence of the stories in the files does not, of course, establish that the Times ‘knew’ the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times' organization having responsibility for the publication of the advertisement.”⁴⁷

The Times sold the advertisement, but the content of an advertisement is not something that the newspaper would necessarily embrace. Still, the Court did not consider the advertisement as “commercial” speech. Instead it treated the advertisement as fully within the protections of the First Amendment. Sullivan argued that “the constitutional guarantees of freedom of speech and of the press are inapplicable here, at least so far as the Times is concerned, because the allegedly libelous statements were published as part of a paid, ‘commercial’ advertisement.”⁴⁸

However, the Court simply rejected this view: “The publication here was not a ‘commercial’ advertisement” because it “communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern.”⁴⁹

A second example of the differing degrees of protection given to commercial and noncommercial speech is found in cases involving the advocacy of various sorts of illegal acts. The government may not normally punish noncommercial speech that “advocates” or urges the listeners to engage in “violence.” While the government may punish the actual violence if any ensues, it may not punish the speaker who advocated it unless the government can also demonstrate that the speaker was objectively and subjectively intending to “incite” lawless action and that this action was “imminent.” Thus, the Court has made clear, in a case where the speaker was charged with urging violence, that, “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”⁵⁰

In other words, the state could punish the instigator of a lynch mob if the speaker was objectively and subjectively intending to “incite” a lynching and this action was “imminent.” The connection between the advocacy and the illegal conduct must be almost knee-jerk, leaving no time for thought or reflection.

In contrast, the Court allows the government to prohibit commercial speech that merely proposes an illegal activity. For example, the government can forbid a newspaper from publishing help-wanted advertising that offers a job based on sex, when the law bans sex-based criteria for employment.⁵¹

In that case, the help-wanted advertisement would be proposing an illegal act: hiring on the basis of sex. While the commercial speech doctrine allows a state to forbid advertisements soliciting a Mafia hit man, the First Amendment does not allow a state to forbid a racist speaker from ineffectually urging violence.⁵²

A. Deception: The question of allegedly misleading speech

Bear in mind that the first prong of Central Hudson⁸⁴

allows the government to regulate commercial speech that is actually misleading. This principle offers another way that the government might regulate advertisements regarding entertainment. S.792 capitalized on this first prong when it found that targeting advertising of adult-rated movies, media, and electronic games to minors is a “false and deceptive trade practice” because many companies in the entertainment industry have “continued to market adult-rated products in venues popular with children.”⁸⁵ Is it “false and deceptive” when the industry truthfully markets an R-rated movie to sixteen-year-olds in a context where it is perfectly legal for sixteen-year-olds (and even younger children) to view the movie?

Under the case law, something does not become “false” or “deceptive” merely because there is a finding to that effect. Instead, the Court must determine for itself if it really is misleading. In In Re R. M .J. (1982), the Court unanimously invalidated various restrictions on advertising by lawyers in Missouri.⁸⁶

Among other things, in an advertisement, lawyer R. M. J. had emphasized in large boldface type that he was a member of the U.S. Supreme Court bar. The state court found this statement misleading, but the Supreme Court reversed. The Court acknowledged that the claim that one is a member of the U.S. Supreme Court bar is “relatively uninformative.” Admittedly, admission to the U.S. Supreme Court bar does not mean that one is a better lawyer, and the reader of the advertisement might mistakenly assume that one had to pass a rigorous examination to be admitted. Instead, one only has to fill out an application and pay a small fee. Yet, the Court invalidated Missouri's restrictions on advertising by lawyers because the record did not show that this “relatively uninformative fact” was misleading or deceptive; hence, the state action was unconstitutional. R. M. J. had truthfully stated that he was a member of the Supreme Court bar.

Peel v. Attorney Registration and Disciplinary Commission of Illinois (1990) offers another example.⁸⁷

An Illinois rule did not permit an attorney to hold himself out as “certified” or a “specialist” unless he was a patent, trademark, or admiralty lawyer. The Illinois Supreme Court censured Peel, whose letterhead stated that he was “certified” as a civil trial specialist by the National Board of Trial Advocacy (NBTA), a bona fide private group that has developed a set of standards and procedures for periodic certification of lawyers with experience and competence in trial work. The Illinois court said that Peel's letterhead was misleading because the state did not certify trial lawyers.

The U.S. Supreme Court reversed. Justice Stevens explained that the issue was whether “a lawyer has a constitutional right, under the standards applicable to commercial speech, to advertise his or her certification as a trial specialist by NBTA.”⁸⁸

The facts on Peel's letterhead were both true and verifiable. Illinois argued that Peel's letterhead implied a higher quality or ability than noncertified lawyers, but the Court rejected Illinois's argument that Peel's statement was therefore misleading. The Court reasoned that Peel's truthful claim of certification by a private group, the NBTA, has no more potential to mislead than an attorney advertising that he is admitted to practice before the U.S. Supreme Court, a statement that In Re R. M. J. had found was constitutionally protected. Thus, Peel's letterhead was neither actually, nor inherently, nor potentially deceptive.

In Ibanez v. Florida Department of Business and Professional Regulation, Board of Accountancy (1994), Justice Ruth Bader Ginsburg spoke for a unanimous Court in holding that the Florida Board of Accountancy violated free speech when it reprimanded Silvia Ibanez, an attorney, because she had truthfully stated in her legal advertising that she was also a Certified Public Accountant (CPA).⁸⁹

The Florida Board of Accountancy had licensed her as a CPA. “[W]e cannot imagine,” wrote Ginsburg, “how consumers could be misled by her truthful representation” that she is a CPA.⁹⁰

In the circumstances that would be governed by S. 792, one wonders how it could be “misleading” for the movie industry to advertise truthfully that an R-rated movie is R-rated. There is something Orwellian about claiming that it is “deceptive” to promote an R-rated movie as R-rated, even if a sixteen-year-old sees the advertisement. A problem of deception would exist if the R-rated movie were promoted as G-rated, but this, of course, is not the complaint.

B. Causation: The factual assumption that “media violence can be harmful to children”

The typical justification for a new government role in regulating G-rated advertising of mature-audience entertainment is that “[m]edia violence can be harmful to children.”⁹¹

A central factual premise of S. 792 and similar proposals is that exposure to media “violence”⁹² will cause children to engage in violent acts. It is commonly postulated that watching violence causes people to become violent.

Experience should make us question the commonplace assumption that people simply follow the media. There is a limit to the power of advertising: extensive media advertising promoted the Edsel, and yet Ford could not sell that car to the American public. The contemporary media, including movies and other entertainment as well as advertising, pay constant tribute to men and women who are trim and fit, and yet medical reports routinely tell us that Americans do not exercise enough and tend to be ever more overweight. If the media were truly persuasive, there would be no need to market all the products that promote dieting.

One need not rely on anecdotal analysis for one's skepticism, since the Federal Trade Commission conducted its own review of the scientific literature following the Columbine tragedy and concluded that it could not substantiate a causal connection between the entertainment industry and violence in America:

Shortly before the release of the FTC report in 2000, the Australian Office of Film and Literature Classification published a four-year study called Computer Games and Australians Today.⁹⁴

It concluded that there “is little evidence to support fears that playing computer games contributes substantially to aggression in the community.”⁹⁵ In the United States, one might even contend that there is a negative correlation between violent crime and minors' exposure to video games, adult movies, etc. The U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention reported that the peak year for juvenile arrest rates was 1994. Between 1994 and 2000, violent crime arrest rates for juveniles as measured by the Violent Crime Index “dropped 44% for youth ages 15–17, compared with 24% for adults ages 18–24.” The decline continued for older adults, but the rate of decrease was less. The arrest rate dropped 26% for those ages 25–29, and 19% for those ages 30–39.⁹⁶

In other words, since 1994, while the “tech craze” was steamrolling across America, while the video game industry was expanding at exponential rates, while the ever-expanding economy gave minors easier access to entertainment not suitable for them, while all of this was happening, the crime rates for juveniles decreased. Moreover, the crime rate decreased the most for minors, precisely the group most smitten with video games. If we consider a longer period of time—1980 to 2000—we find that juvenile crime rates decreased while adult crime rates (even adults over sixty) increased.⁹⁷

In contrast, S. 792 baldly asserts: “Most scholarly studies on the impact of media violence find a high correlation between exposure to violent content and aggressive or violent behavior.”⁹⁸

This “finding” of S. 792—that watching media violence “can be harmful to children”⁹⁹—is a finding that the FTC report simply does not support. The FTC and researchers in general can find no cause and effect relationship between watching a film (such as Saving Private Ryan) and engaging in violent behavior. Indeed, there are rigorous studies that show salutary efforts: that video games, even violent ones, aid in the cognitive development of children by challenging them to solve complex puzzles.¹⁰⁰

The effort to assign to the entertainment industry responsibility for present-day violence by American youth is not new. Historically, government censorship has been justified by a need to protect children. This rationale goes back at least to the time of the ancient Greeks.¹⁰¹

The common supposition is that certain images or speech cause children to become immoral or engage in bad behavior. Yet, the FTC and scholars have been unable to document this hypothesis.

The case law requires substantially more than the mere supposition of a causal relationship between watching a movie or listening to music and engaging in illegal and violent behavior. There must be virtually an unthinking, knee-jerk connection—an incitement—between what one views or hears and the subsequent illegal action. Justice William Brennan, writing for the majority of the Court, reached this conclusion in Carey v. Population Services International (1977).¹⁰²

Carey invalidated a New York law that made it a crime for anyone to advertise or display contraceptives. The state tried to justify the law by arguing that advertising contraceptives would encourage illegal sexual activity by young people. The Court simply rejected this argument. The state could not rely on such a causal relationship because there was no incitement:

While Central Hudson does allow the state to regulate an advertisement that proposes an illegal transaction (e.g., an advertisement for a “white-only employee”),¹⁰⁴

Carey does not allow the state to outlaw advertisements that depict or even advocate unlawful behavior. The state must show that the speech in question “incites” illegal conduct, that is, causes “imminent lawless action” in the same way that someone might incite a lynch mob to engage in lawless action. Neither the FTC nor any other reputable authority argues that movies, or music lyrics, or video games have that exceedingly tight relationship of cause followed by immediate effect. Advertisements for movies, or music lyrics, or video games do not “incite” violence as Justice Brennan used that term in the Carey decision.

C. Targeting advertising: Restricting truthful advertisements because children are in the audience

What does it mean to “target” advertising to minors? S. 792 defines advertising to minors as advertising to an audience if a “substantial percentage” of that audience includes children under seventeen.¹⁰⁵

The bill would authorize the FTC to determine the meaning of “substantial” portion. For example, if the FTC decided that a “substantial percentage” of the audience meant that children under seventeen constituted 33 percent of an audience, then it would be illegal for a company to advertise certain products to an audience in which two-thirds of the members were adults.

The bill would also create what it calls a “safe harbor” for those who adhere to a “voluntary self-regulatory system.” The bill then establishes government criteria for these “voluntary” systems, that the FTC would enforce. The bill would allow the FTC to impose a fine of $11,000 a day on a company that truthfully advertised an R-rated movie as R-rated if the FTC determined that children were in the target audience.¹⁰⁶

A bill that would impose a fine for not following a “voluntary” system does not appear to be truly voluntary, any more than the federal income tax is “voluntary.”¹⁰⁷

The voluntary movie, television, and music ratings system now in effect does not raise similar constitutional problems because the system is truly voluntary. Movies, television shows, and music lyrics are not required to be rated. If the distributors decide to rate a film, a movie theater that shows the film has no legal obligation to enforce the rating, by fines or any other mechanism. The first prong of Central Hudson allows the government to regulate commercial speech if it proposes an illegal transaction, but it is not illegal for a twelve-year-old to watch a PG-13-rated movie. Even an advertisement that explicitly urged sixteen-year-olds to watch an R-rated movie does not propose an illegal transaction.

“Accountability” of the entertainment industry is the latest buzz word. When parents decide not to give money to their thirteen-year-olds to view an R-rated movie, or when parents decide that their children should not see a particular R-rated movie, these actions make the industry accountable, but only to the extent that parents decide to use the information given to them. When the movie industry voluntarily provides ratings information, it does not act pursuant to any government mandate and does not restrict or ban speech, but, rather, it gives the general public more information, to use (or not use) as it sees fit. Neither the state nor any state agency has any role to play under the voluntary ratings system.¹⁰⁸

It is interesting that the American Library Association (ALA) objects to any federal law that merely restricts access to information. Consider what the ALA has said about any government efforts to restrict children's access to entertainment. The ALA's “Library Bill of Rights” provides that libraries should lend videotapes and movies, regardless of the voluntary ratings system of the Motion Picture Association of America (MPAA) and regardless of the age of the minor seeking to borrow the material: “A person's right to use a library should not be denied or abridged because of origin, age, background, or views.”¹⁰⁹

The ALA concludes that, as a matter of free speech, the MPAA voluntary guidelines should not control children's access to library videotapes that are R-rated.¹¹⁰ Public libraries, in the view of the librarians, should not act as the parents or guardians of the users of the facilities, regardless of age.¹¹¹

While the government does not have a role in the voluntary ratings system, it would have a central role to play if it were given the power to forbid the industry from truthfully disclosing—in a G-rated preview or movie trailer—that a movie is R-rated when children are in the audience. Even then, it would still be perfectly legal for a sixteen-year-old or a ten-year-old to watch The Patriot—a movie about the Revolutionary War, accompanied by some very graphic violence depicting the horrors of war—whether or not the child was accompanied by an adult.

The Supreme Court, in a series of cases, has held that the First Amendment protects marketing of “entertainment” or activities that are not suitable for children but permissible for adults, even though children may be in the audience. For example, in Sable Communications of California, Inc. v. FCC (1989), the Court concluded that Congress could not impose a ban on “indecent” interstate, prerecorded, commercial telephone messages because that speech is not “obscene” in the constitutional sense, even though the law's purpose was to protect children.¹¹²

The Court found unpersuasive the government's argument that an outright ban was appropriate although the Court acknowledged that enterprising youngsters could evade the rules governing credit card access, scrambling rules, and so forth.

Later, in Reno v. American Civil Liberties Union (1997),¹¹³

the Court turned its attention to the constitutionality of two statutory provisions enacted to protect minors from “indecent” and “patently offensive” communications on the Internet. The Court repeatedly rejected the argument that the laudable goal of protecting children justified federal regulation. “Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge District Court that the statute abridges ‘the freedom of speech’ protected by the First Amendment.”¹¹⁴

Shortly after this declaration, Justice John Paul Stevens, for the Court, again dismissed the argument that the Court should defer to congressional judgment when it decides that only a total ban will be effective in preventing enterprising youngsters from gaining access to indecent communications:

The goal of proposals such as S. 792 is to protect children, which is commendable, but it is not enough to remove First Amendment protections. The Court will still engage in a searching inquiry and, based on the case law, proposals similar to S. 792 are unlikely to survive constitutional challenge. This conclusion becomes even more unavoidable given the decision in Lorillard Tobacco Co. v. Reilly (2001).¹¹⁶

Lorillard Tobacco acknowledged that tobacco is a heavily regulated industry and that there are important restrictions on selling tobacco to children. The arguments for regulating tobacco are much stronger than the arguments for regulating movies. In the case of tobacco, the Surgeon General has determined that smoking causes cancer and is a significant health risk. In contrast, the FTC has not determined that watching violent movies causes crime or is otherwise hazardous to children's welfare.¹¹⁷

Moreover, watching movies, listening to CDs, and playing video games are, unlike smoking, a matter of free speech. While it is against the law for minors to purchase or smoke tobacco, it is not illegal for twelve-year-olds to view PG-13 movies. Hence, one would think that the government would have a stronger case for restricting advertising of tobacco products than movies, CDs, or videos when tobacco advertisements might be seen by children and cause them to engage in illegal acts (buying cigarettes).¹¹⁸ Yet, Lorillard Tobacco has held that tobacco companies have a constitutional right to engage in such advertising activities, even if it reaches children. If tobacco marketing activities that reach children are protected, then, a fortiori, one would think that marketing of movies, CDs, and video games is protected under the First Amendment. This, at least, is what the case law appears to say.

Lorillard Tobacco arose when the attorney general of Massachusetts promulgated comprehensive regulations governing the advertising and sale of cigarettes, smokeless tobacco, and cigars. Justice Sandra Day O'Connor wrote a lengthy and complex opinion for the Court.¹¹⁹

The Court upheld free speech rights for advertising of tobacco—a product where the connection between use and ill health is very strong. How would the Court, then, look upon banning the advertising of mature-rated entertainment to children where the connection between exposure and violent and unlawful behavior is tenuous at best? The Lorillard Tobacco holding appears to doom proposals that seek to ban advertising when children are in the audience.

After deciding other issues, Lorillard Tobacco turned to the First Amendment claims of the smokeless tobacco and cigar manufacturers and retailers. Massachusetts imposed restrictions on advertising of tobacco in order to prevent or, at least, lessen the amount of smoking by children. Nonetheless, the Court invalidated the restrictions on advertising of tobacco products even in areas where children are likely to be in the target audience, such as on billboards near schools. The Court held that the state's regulations on outdoor advertising of smokeless tobacco and cigars violated free speech. The “broad sweep” of the state's prohibition of smokeless tobacco or cigar outdoor advertising within one thousand feet of a school or playground violated the First Amendment because it did not satisfy the fourth prong of Central Hudson: whether a regulation is not “more extensive than is necessary” to serve the government's interest in protecting children.¹²⁰

In practice, the restrictions at issue in Lorillard Tobacco prohibited advertising “in a substantial portion of the major metropolitan areas of Massachusetts.”¹²¹

The Court acknowledged that the state has a “compelling” interest in preventing underage tobacco use, “but it is no less true that the sale and use of tobacco products by adults is a legal activity. We must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products.”¹²²

The state regulations at issue in Lorillard Tobacco also limited indoor, point-of-sale advertising for smokeless tobacco and cigars: “Advertising cannot be ‘placed lower than five feet from the floor of any retail establishment which is located within a one thousand foot radius of’ any school or playground.” Lorillard Tobacco invalidated this restriction as well. It failed both Central Hudson'?s third prong (by not directly advancing the government's interest) and its fourth prong (by being more extensive than necessary). The state's purpose was to discourage minors from using tobacco by limiting their exposure to advertising. The five-foot rule did not advance this goal. “Not all children are less than 5 feet tall, and those who are certainly have the ability to look up and take in their surroundings.”¹²³

Nor is the height restriction a mere regulation of conduct, because the whole purpose of this restriction was “an attempt to regulate directly the communicative impact of indoor advertising.” The lower court had justified this restriction on the theory that it “is very limited,” but there “is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification.”¹²⁴

From these cases, one would naturally conclude that movie theater owners and others have a First Amendment right, for example, to show G-rated previews of R-rated films. Children and adults will see these G-rated previews and the parents can determine if they want their children to attend the advertised films. Like Lorillard Tobacco, Reno v. American Civil Liberties Union cautioned

Note that a state does have the power to ban children from seeing certain types of materials that an adult has a constitutional right to see. The state cannot ban Playboy because this magazine is not “obscene” in a constitutional sense for adults, but the state can prohibit a young child from buying Playboy. This was the holding of Justice Brennan, speaking for the Court in Ginsberg v. New York (1968).¹²⁶

New York had prohibited the sale to minors under seventeen years of age of material (“girlie” picture magazines) defined to be obscene on the basis of its appeal to them, even if the magazines would not be obscene to adults.

Justice Brennan explained that this case presented “the question of the constitutionality on its face of a New York criminal obscenity statute which prohibits the sale to minors under 17 years of age of material defined to be obscene on the basis of its appeal to them whether or not it would be obscene to adults.”¹²⁷

The Court upheld the law even though the “'girlie' picture magazines involved in the sales are not obscene for adults.”¹²⁸ The Court held that this “variable obscenity” (different rules for different people depending on their ages) is within the power of the state, for the state's power over children is broader than its power over adults.¹²⁹

Ginsberg does not support a rule that would allow the state to ban advertising for Playboy simply because children may see the advertisements and want to read (or look at) the magazine. Hence, for the following reasons, proposals like S. 792 find little solace or support in the holding of Ginsberg.

First, these new proposals do not prohibit minors from seeing certain movies judged “obscene” as to them. Instead, the proposals relate to marketing: Ginsberg did not authorize any restrictions on marketing of “girlie” magazines. Just look around: corner newsstands freely display and advertise Playboy even though children might be in the vicinity. Besides, with reality shows on television that feature Playboy models, one would be hard pressed to keep knowledge of their existence from children.¹³⁰

Ask any ten-year-old what it means to be a Playboy bunny, and the child knows.

Second, the Court emphasized that the law did not ban youngsters from seeing the magazines. Instead, the law supported the parents' claim of authority to direct the rearing of their children because the law did not ban advertising the magazine and did not ban children from access to the magazines: if the parents wanted their children to see such materials, nothing in the law prohibited them from purchasing the magazines for their children. The state's “prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.”¹³¹

In contrast, proposals like S. 792 prohibit certain types of marketing without regard to what parents would prefer. These proposals, unlike the statute in Ginsberg, do not support parental choice but rather supplant it because these proposals, unlike Ginsberg, would ban advertising when children are in the audience.

Third, Ginsberg said nothing that even suggested it was undercutting the general principle that the state may not prohibit information from reaching adults because children might be in the audience. Butler v. Michigan, decided more than forty years ago, held that the state cannot ban sales of materials to adults on the grounds that the materials would be harmful to children: “Surely, this is to burn the house to roast the pig.”¹³²

When matters of free speech are concerned, the government must draw with the precision of a surgeon's scalpel, not the rough hew of a butcher's axe.¹³³

In its more recent decisions, the Court has reaffirmed the general principle. Thus, in a child pornography case the Court rejected the argument that a ban on “virtual pornography” (computer-generated images of child pornography that did not depict any real person) was necessary because the capacity to produce realistic images by using computer technology makes it very difficult to prosecute those who produce pornography by using real children. Although the government may punish adults who provide unsuitable materials to children, and it may punish those who use real children for purposes of child pornography, the precedents establish “that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it.”¹³⁴

The Court also invalidated a ban on “dial-a-porn” messages because they had “the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children to hear.”¹³⁵

The general principle is particularly apt when one appreciates the fact that children are ubiquitous. Under proposals like S. 792, it would be permissible to market an R-rated movie to seventeen-year-olds, but not to sixteen-year-olds. Yet, it is impossible to market to seventeen-year-olds without also reaching sixteen-year-olds. Teenagers, like adults, turn to the same entertainment section of the newspaper to read the movie advertisements and show times. There, they all see an advertisement for an R-rated movie, which is truthfully labeled as “R-rated,” but—according to S. 792—such an advertisement is “deceptive” because a “substantial proportion of minors” are in the target audience.¹³⁶

They are also exposed to television shows (such as NBC's Today Show or movie reviews on PBS) that discuss and review recent movies, including some that are rated R or PG-13.

May an R-rated or PG-13 movie be advertised on Who Wants to Be a Millionaire? This game show did not target children, but in its heyday it reached about 3.2 million children under age seventeen, or about 12 percent of its audience. Any advertisement on Who Wants to Be a Millionaire? would have affected a large number of minors. May an R-rated or PG-13 movie be advertised on The Wonderful World of Disney? We may think that this show targets children, but less than 35 percent of its audience is comprised of teenagers and younger children. Can MTV accept any advertising for R-rated movies, even though two-thirds of its audience is over eighteen?¹³⁷

In each of these cases, there is either an adult show with a substantial number of child-viewers or a children's show with a substantial number of adult viewers. If a proposal like S. 792 becomes law, it might be the case that the only way adults could see G-rated trailers of R-rated movies would be to buy a ticket to see an R-rated movie. Yet even that might not work, because children would still be in the audience of R-rated movies, inasmuch as children may lawfully view R-rated movies, and if the number of children who did so was not de minimis, then adults viewing an R-rated movie would still be unable to view G-rated trailers of R-rated movies because a “substantial percentage” of children would be in the target audience.

Moreover, what it means to “target” children or “market” to them is not a self-defining concept. S. 792 would authorize the FTC to determine if the entertainment industry uses “marketing practices designed to attract minors to such materials.”¹³⁸

In the past, the entertainment industry has been accused of marketing “designed to attract minors” when it used cartoon characters to advertise its products. Yet, an insurance company, MetLife, markets its products by using Snoopy, the dog from the Peanuts comic strip series. On billboards, commercials, and its Internet homepage, MetLife prominently displays the cartoon dog. As one browses “related links” on the Web site, one sees Snoopy, Lucy, and other Peanuts characters selling life insurance, advising about a will, and so forth. There is Snoopy pointing to a chart and explaining the need for long-term care insurance.¹³⁹ Is MetLife “targeting” children?

Owens Corning, on its billboards, commercials, and Web site, prominently features another cartoon character, the Pink Panther, touting, of all things, insulation, roofing systems, and Trumbull Asphalt.¹⁴⁰

Is Owens Corning “marketing to children”?

Pillsbury markets its bakery goods by using a cartoon character, the Pillsbury Dough Boy. Does this mean that Pillsbury thinks that little boys bake hot biscuits and are the real masters of the kitchen? Is Pillsbury marketing its bakery goods to nine-year-old boys?