Media Filters and the V-Chip-- Part II

Edited Version Originally Published in 45 Duke L. J. 1133 (1996).
Copyright 1998 Jack M. Balkin. All Rights Reserved.

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IV. Filtering and Mass Media

 

Let me summarize the argument so far. All communications media produce too much information. So in that sense, all media have a problem of scarcity. But the scarcity is not a scarcity of bandwidth. It is a scarcity of audience. There is only so much time for individuals to assimilate information. And not only is there too much information, some of it is positively undesirable. As a result, all media give rise to filtering by their audience, or, more importantly, by people to whom the audience delegates the task of filtering. For a filter to operate properly, any criteria of filtering must be linked to an effective ability to exclude. Many desirable ways of filtering information may not be possible or cost-effective given the nature of the media.

The problem of practical filtering exists in all media. It is inherent to any form of communication. However, the problem appears differently for different media. Media differ in terms of the kinds of blocking, selecting, and organizing filters practically available to them. It is easy to block books and videocassette tapes, because books and videocassette tapes are individual and separate units of consumption. They can be put in stores on shelves or locked behind counters. It is easy to keep some out and let others in. It is also easy to put them in different shelves according to category. They can be read or viewed in any order you choose, at any time of day.

If broadcast media are special, they are special in this respect: Broadcast media offer limited practical means of filtering. Parents may want to keep their children from certain kinds of television programs. But their ability to do so is limited.

Broadcast communication is a linear stream of information in a predetermined and unchangeable order sent out at a predetermined and unchangeable time. This form of communication limits the ways one can filter information. There are basically only three: turning the receiver off completely, turning it on only at designated times, or changing the channel. Parental blocking is similarly limited. Parents can control children's viewing habits by turning the television off at specified times or forbidding children to watch certain channels. If children insist on watching television when their parents are not at home or cannot supervise them, parents have no choice other than to remove the television entirely. Because the number of filtering solutions is limited, there is a poor fit between desirable filtering mechanisms and practical excludability. Only very coarse filters can be made to work. This coarseness is the distinctive characteristic of broadcast media.

Consider the problem from the perspective of a single broadcast station attempting to organize information for the benefit of its viewers. Other than simply not broadcasting a program, the only means of organizing information is to segment it by time. And that is precisely what broadcasters do. They put different types of programming on sequentially, so that viewers can choose what programs to watch by time period. Broadcasters then try to turn these limitations to their advantage, through strategic scheduling of programs as regular series at preordained times, through the use of special blocks of programming, or through repeated showings.

Not surprisingly, temporal filtering is also a major method of FCC regulation. Examples are the Prime Time Access Rule and the safe harbor provisions.(27) These regulations organize programming in sequences of time and require that some programs not appear at certain times. They act like blocking or organizing filters.

It is theoretically possible, using a VCR, to convert broadcast communication into something like books or videocassette tapes. Imagine taping each half hour of the day on each channel on a separate videocassette tape. One could then shuffle the order of the tapes, watching them in the desired sequence. One could also keep television programming locked up in a dresser drawer away from children. In this way one could convert the television day into the equivalent of a video library. It could then be filtered and organized in much the same way as a library or video store. But this process is expensive and time-consuming; it would require constant attention and a separate recording machine for each channel. And it does little to block children from seeing what is actually being broadcast, unless parents can make sure that children only watch the tapes rather than the original.

I hope it is clear by now that the problems of filtering and regulating broadcast media--especially where children are concerned--have nothing to do with scarcity or ubiquity. They have to do with the kinds of filters effectively available for this partic ular medium of communication. Broadcast media differ from other media not because of limited bandwidth but because of limited methods of filtering. Nor are broadcast media special because they involve pictures and music on a screen rather than stationary text on a page. Videocassette tapes offer the same kind of expression and are also shown on television screens, but they lend themselves to much easier forms of filtering. Because broadcast information is broadcast--sent out in single sequential streams at predetermined times--it can be blocked, selected and organized in only a limited number of ways. This is a kind of scarcity, but it is a scarcity of filtering mechanisms, not a scarcity of channels. Even if there were ten million channels, all broadcast simultaneously, these problems would still arise. The special nature of the broadcast media can now be revealed. It was never about scarcity. It was never about pervasiveness. It was always about filtering.

The V-chip and similar technologies promise to change the nature of broadcast media because they offer the possibility of new types of filtering mechanisms. They help the broadcast media become more like the library or the video store, although the former will never be the same as the latter two. The approximation would work best if broadcast and cable could offer literally hundreds of channels, so that there would always be something to watch as an alternative to blocked-out material, and so that the same or similar programs would be available at different times. Perhaps the best approximation would be a pay-per-view system, in which each home could order any available programming at any time of day. (This system could also be priced as a flat fee if that were economically feasible.) We are not yet at that point in video delivery. But we may well be in a few years' time.

The great promise of new filtering and broadcast technologies lies in these changes to the organization of the medium. When we think of the future of the broadcast media and cable, we immediately think of an increased number of channels, and the end of scarcity. But this is a confusion. What matters is not the increased number of channels by itself, but the increased number of channels coupled with new ways to block, select, and organize programming. If broadcast media can permit blocking and time-shifting of programming easily, cheaply, and painlessly, they will have largely approximated the filtering status of the print media. At that point, it is hard to see why they should be denied the same First Amendment status.

Before discussing the special problems of the V-chip, it might be helpful to ask how this analysis of filtering mechanisms applies to two other current subjects of controversy--cable television and the Internet. In Denver Area, Justice Breyer argued that cable television posed problems of pervasiveness quite similar to those in broadcast television.(28) Senator Exon and others have argued that protection of children equally justifies regulation of indecency on computer networks.(29)

The traditional reason to differentiate cable television from broadcast television is that cable channels are not scarce. But, as I have argued above, the scarcity rationale does not justify the regulation of indecency in broadcast television; the problem broadcasting faces is not scarcity of bandwidth but coarseness of filtering mechanisms. Without something like the V-chip, cable television is in no better a position than broadcast television, and should be treated accordingly(30) Thus, if the safe harbor provisions are justified for broadcast television, they are justified for cable as well. And if they are unconstitutional for cable television, they are equally unconstitutional for broadcast television.

Once a feasible V-chip technology is in place, differential treatment of cable and broadcast television will be even less justified. Mandatory segregation and blocking of indecent programming should be completely eliminated. The blocking technology available in the V-chip, coupled with temporary safe harbor provisions (as described more fully below), should be sufficient protection for both media; no greater restrictions on broadcast indecency should be constitutionally permissible.

The Internet presents an entirely different set of problems. In terms of available (and potentially available) filtering mechanisms, the Internet much more closely resembles a bookstore or a video store than a television set in the home. In particular, the Internet does not require temporal filtering. An Internet user can filter information on the World Wide Web by subject matter using search engines like Lycos or Infoseek. Indeed, filtering mechanisms on the Web are in many cases more advanced than those widely available for much of the print media. Usenet groups--the Internet equivalent of bulletin boards--are already differentiated by subject matter. Because of information overload, the messages in Usenet groups do tend to be removed after a certain time. But these messages can be selectively downloaded and viewed at the users' leisure. In any case, many web sites and FTP sites are quasi-permanent, with an inventory that changes no more often than that at a local Barnes & Noble. From the standpoint of the possible modes of filtering, the appropriate model for the Internet is the bookstore, not the television broadcast.(31)

The real problem facing the Internet is not the lack of appropriate and powerful filters; it is possible to divide and subdivide the information coming from the Internet in any number of ways. The real problem is the abilities of parents. If filters cannot be made relatively costless for parents to use, they will be ineffective in practice even if available in theory. This very real concern brings me back to the V-chip.

 

V. Parental Control and the V-Chip

 

There are two standard objections to blocking filters like the V-chip. The first is that parents will be unable to use the blocking device. The second is that, even if they do, children will be able to break through and watch the programming anyway. One finds similar fears expressed about the Internet. Although parents may be able to use a program like SurfWatch to keep children off sensitive parts of the Internet, children are often more computer literate than their parents. The parents won't be able to use the software, and the children will easily be able to break through.

To address these concerns, we must distinguish between the costs of blocking access to information and the costs of breaking through the block. It does not follow that a blocking filter that creates high barriers must itself be difficult or inconvenient to operate. A double-bolted lock is a perfect example. It is easy for homeowners to use but difficult for burglars to break through. In like fashion, the goal should be to create filters that are relatively costless for parents to operate but very difficult for most children to bypass.

This is not a problem of constitutional law. It is a problem of technological design. Different kinds of blocking filters differ with respect to these two variables. Childproof caps are relatively ineffective because they are difficult for parents to operate as well as children, so the parents don't use them properly. But it's quite possible to design a V-chip that parents can easily use but children will find difficult to crack. A simple example would be a four-digit number, like that on an ATM card, that enabled access to the programming menu. No doubt even these minimal costs can be further reduced with sufficient ingenuity.

Similarly, in designing Internet blockers, the goal should be to create an interface that is easy to use and that offers powerful blocking results. This task is hardly beyond the capabilities of the private computer industry. Enormous sums of money are devoted each year by these companies to produce increasingly user-friendly and increasingly powerful interfaces. The whole point of designing security features in commercial software is to make them painless for the user but difficult for the hacker.

It is important, nevertheless, to recognize that some children will be able to "hack through" the blocking devices their parents use. In any population of children, some will be more clever and more computer-literate than others. Some will be very clever, and a few may even be able to break into Defense Department computers. But a filter design need not be foolproof to be acceptable as a constitutionally preferable alternative to a total ban. It need only be able to block most children or make it very difficult for them to break through.

This principle is clear enough from the existing safe harbor provisions in broadcast television. In its ACT III opinion, the D.C. Circuit acknowledged that some children would be able to expose themselves to programming not intended for them simply by staying up late, or sneaking a television into their room at night. (32)Indeed, statistics quoted by the court indicate that many, although not most, children watch television after 10 p.m.(33) This did not undermine the value of the ban on indecent programming between 10 p.m. and 6 a.m. Rather, the court reasoned, the safe harbor provisions are a reasonable balance between free expression concerns and the protection of children. If the temporal filters involved in the safe harbor rules need not be perfect in blocking all children, neither do the technological filters involved in the V-chip.(34)

 

VI. The Key Issue: Avoiding Additional Layers of Regulation

 

I am concerned about the V-chip for different reasons. Unless FCC regulations are carefully designed, they will simply superimpose new content-based regulations over the restrictions we now have. Without care and forethought, the V-chip will not liberate broadcast programming from censorial power; rather it will increasingly subjugate it.

Ideally, the V-chip should be understood as proposing a sort of constitutional bargain. In return for offering parents a method of protecting children from violent and indecent programming, the government should henceforth be forbidden from engaging in other content-based regulation of violence and indecency in the broadcast media. If the V-chip technology is implemented properly, it will shift the focus of broadcast regulation from regulation of content to regulation of filtering of content. Most importantly, it will turn broadcast regulation towards more appropriate concerns: ensuring access to as many speakers as possible. It will move us away from an improper fixation with what should not be on television and toward a proper concern with what must be.

What I fear is that the V-chip will be used instead to impose an additional layer of content-based regulation on top of existing indecency prohibitions and safe harbor provisions. It will be used to ensure not just that children are not exposed to certain programming, but that adults are not exposed either. Proponents of censorship are inevitably tempted to protect adults in the name of protecting children. The V-chip must not be allowed to facilitate this desire.

Courts must be especially vigilant to ensure that a "multi-layered" approach to broadcast regulation does not result. I propose a general principle for assessing the constitutional use of technological filters like the V-chip. Because lack of effective filtering mechanisms is the real justification for content-based regulation, creation of new and more effective filtering devices should always create heavy presumptions against any remaining content-based restrictions. The more easily and broadly a V-chip or other technological filters can be implemented, the more suspect must be any restrictions on violent and indecent broadcast programming.

The safe harbor provisions offer a good example of how to apply this principle in practice. Even after the V-chip has been perfected, there still may be a limited and temporary need for the safe harbor provisions. By its terms the Telecommunications Act of 1996 applies only to television sets over thirteen inches, and its requirements do not take effect until at least two years after the date of the Act.(35) Not every television is likely to be replaced as soon as the V-chip is introduced; even though the V-chip can be encoded in a cable box, not all families will immediately rush out and get one. Televisions (and replacement cable boxes) cost money. Most likely there will be a significant period in which many families lack the V-chip. For this reason, it may be necessary to retain the safe harbor provisions for a "sunset" period of, say, seven years.(36) After that point, anyone who uses a non-V-chip compatible television would be on notice that it would not be able to block out programs. If they wanted that capability, they would have to purchase a V-chip equipped television or a V-chip equipped cable box. If they refused to upgrade their equipment after seven years, they would have only themselves to blame if they were shocked and surprised by what they saw while flipping channels.

The regulatory scheme should not, however, use the lack of V-chip capability as an excuse to pile on additional regulations that put broadcast programming in a worse position than it was in before the Act. The regulatory scheme should not require that the safe harbor rules remain in force indefinitely merely because some televisions do not yet have V-chip equipment.

 

VII. The Ratings System

 

The development of a ratings system poses a second constitutional problem. The Telecommunications Act of 1996 was cleverly drafted to create an almost irresistible set of pressures on private industry to create and implement a voluntary ratings system. It did so because, as the drafters well realized, a government-created ratings system imposed against the will of broadcasters would pose serious constitutional issues. The result of these statutory provisions was an industry commission that produced a set of age-based ratings modeled on the Motion Picture Association of America (MPAA) ratings system; these ratings have been appearing on selected broadcast and cable programming since the beginning of 1997. Later pressure from children's advocacy groups, with the full blessing of the White House and other government officials, has led to a promise of supplementary content based ratings to begin in the fall of 1997.

How did the government persuade the industry to take action so quickly? The Act prescribed that "distributors of video programming" had a year to come up with a workable ratings system acceptable to the FCC, "in consultation with appropriate public interest groups and interested individuals from the private sector." (37) If private industry did not come up with rules satisfactory to the FCC, the job would have fallen to an advisory committee appointed by the FCC. This advisory committee would be comprised of "parents, television broadcasters, television programming producers, cable operators, appropriate public interest groups, and other interested individuals from the private sector."(38) Not surprisingly, this committee sounds like many of the same groups the FCC would probably consult with to determine the acceptability of any industry ratings system.

This "fail-safe" provision deliberately stops short of requiring that broadcasters accept the ratings system devised by the advisory committee. It requires only that, if video programming already is rated by the broadcaster, the rating must also be encoded so that it can be read by a V-chip system. (39) Left unclear is whether the Commission would be empowered to require that broadcasters accept the advisory committee's rating system. Also left unclear is whether the FCC would have the power to insist that all programming be rated before it can be broadcast.

The fail-safe provision was left deliberately toothless to avoid constitutional problems of prior restraint and compelled speech. Instead, the true goal of the legislation was to present broadcasters with a set of unpalatable alternatives. If they did nothing, they risked the appointment of an advisory committee telling them how to rate their programs. Even if the FCC could not constitutionally require that the industry accept a government-sponsored ratings system as a condition of broadcasting, there would have been enormous public pressure to accept a system already been worked out with attendant public fanfare. Faced with this possibility, broadcasters and distributors chose to create their own ratings system.(40)

In fact, pressing the industry to create its own ratings system actually gives the FCC considerable power and influence without ever invoking the fail-safe provisions. The FCC can decide whether to approve the ratings system or not, using basically the same players that would have formed an advisory committee. If the industry does not conform sufficiently to the FCC's wishes, the FCC can declare the industry not to be in compliance and once again hold up the threat of an advisory commission.(41)

In the long run, the result of this calculated gamesmanship will be a set of guidelines largely acceptable to the FCC and implemented without government expense or the creation of a new governmental bureaucracy. Moreover, because the guidelines are "voluntary," the FCC does not have to require that broadcasters accept them, or issue regulations that all shows be pre-screened. It need merely insist on these conditions as the price of its approval of the "voluntary" ratings system. In this way the FCC (and other government officials) can achieve through threats much of what it could not have achieved through direct regulation. The actual history of industry ratings has followed this general outline: Pressures from various government officials, and from children's advocacy groups acting with the blessing of the White House, have led first to age-based ratings and later to supplementary content based ratings.(42)

Although the clever drafting of the V-Chip legislation was designed to avoid constitutional problems, the very idea of an advisory committee, whether as an actual ratings body or as a threat the FCC hopes never to employ, is constitutionally troubling. From one perspective, there is no problem with the government designing a content-based information organization system and leaving it up to private parties to decide whether to accept or reject it. For example, there is nothing unconstitutional about the development of the Library of Congress cataloguing system or its near universal acceptance in public and private libraries as a means of organizing information. The problem comes when the government insists that information must be organized according to content in a certain way or it cannot be published at all. And when the government uses threats, whether overt or concealed, to achieve this result, constitutional values are surely implicated.

Defenders of a government mandated ratings system might point to the Supreme Court's decision in Meese v. Keene.(43) In Meese, the Supreme Court held that the government could label three Canadian films critical of the government's policies on acid rain as "political propaganda" under the Foreign Agents Registration Act consistent with the First Amendment.(44) The plaintiff in the case was not a foreign agent and therefore was not bound by the reporting and disclosure provisions of the Act. He merely argued that he should be able to show the films without being branded as an exhibitor of governmentally designated propaganda. The Court rejected that argument, because the government is usually free to engage in its own speech, even when that speech seems value-laden or even condemnatory. But Meese did not decide whether the government could require U.S. citizens who were not agents of foreign governments to put labels on expressive materials that the government determined to be "political propaganda." The mere existence of a government labeling system is not the same as a governmental directive forcing people to use it as a mandatory preface to their own speech.

The first problem that any ratings system will face is what to do about unrated programming. Must all television programming be given a V-chip rating, or only some of it?(45) Must all programming be submitted for ratings, or can a broadcaster refuse to accept or provide a rating? Most importantly, if less than all television programming is rated, can the unrated shows still be broadcast?

The 1996 Act does not specifically require that all programming be rated before it can be broadcast, yet this is clearly the eventual goal of the V-chip system (with the usual exceptions for certain news and sports programming).(46) Once a ratings system is in place, the FCC can then issue regulations to discourage or segregate unrated programming. Chairman Hundt has specifically contemplated such a strategy. He has argued that any programs that remain unrated can constitutionally be relegated to the safe harbor period.(47) Yet this solution is too facile. It threatens to put enormous numbers of programs in a worse position than they were in before the implementation of the V-chip. It violates the key constitutional principle I have enunciated: that the development of new technological filters should decrease government restrictions on adult viewing, not increase them.

A governmental requirement that all programs be submitted to a private industry council before they can be screened has many of the features of a prior restraint. The problems would be even greater if the ratings (or the guidelines for them) were entrusted to a government-appointed Television Commission. But it should also be constitutionally troublesome for government to insist that speakers gain the imprimatur of a delegated private organization before they can be allowed access to the airwaves.

The goal of the 1996 Act is that broadcasters will voluntarily rate their own programming, making the prior restraint problems vanish. But not all broadcasters will be able or willing to do this for all of their programming. Many people who speak over cable and over the airwaves are not networks or network affiliates. They will necessarily have to rely on third parties to pre-screen their material. Thus, the problem of pre-screening by some organization other than the speaker cannot be avoided. This is especially so if the government is seriously interested in ensuring conformity of ratings among different program distributors. For example, without a credible third-party enforcement mechanism, some distributors may be tempted to "underrate" programs because they fear that a more stringent rating would reduce advertising revenues.(48)

One might object that a requirement of pre-screening and pre-rating is not really a prior restraint, because all unrated programming can still be broadcast during the safe harbor period. But this argument is deficient on two grounds. First, as argued above, the safe harbor regulations must gradually be phased out after the new system is adopted. Second, and more important, the unconstitutionality of a prior restraint is not avoided even if there is another means of expressing one's self. Imagine a city ordinance that required all leaflets in the downtown area to be pre-screened for appropriate content by the City Manager.(49) The constitutionality of this ordinance would not be saved by the fact that one could distribute the leaflets in the suburbs or simply write letters to the editor.

My view is that the government cannot constitutionally require that all unrated programming must be shown during the safe harbor period, although it can require that, during a seven year "sunset" interval, all unrated indecent programming be shown during the safe harbor period. It can do so because--assuming that the current safe harbor period regime is constitutional--unrated indecent programming would be no less protected before the Act than after it. Assuming that safe harbor rules for regulation of particularly violent programming would be constitutional under the current regime, a similar argument should apply here as well.

Nevertheless, the government must allow all other programming to be shown outside of the safe harbor period whether it is rated or not, and whether or not it has been submitted to a third party. When broadcasters cannot or will not rate programs by themselves, the government must place the burden on third-party ratings systems to provide ratings in time for broadcast. It cannot put the burden on broadcasters to obtain or accept a rating before broadcasting.

To see why the burden must rest on ratings boards or other third parties and not on broadcasters, consider the problems involved with blocking access to three different groups of unrated programs: The first are pre-Act programs, the second are news programs, and the third are broadcasts of live events, including sporting events.

There is currently an enormous backlog of programs produced before the development and implementation of the V-chip. They include literally everything heretofore recorded on movie film or videotape. If the concern is sexual content and violence, many parents might well want to restrict access to much of this pre-Act material. But if this material would not have fallen afoul of the indecency standard of Section 1464, it is doubtful whether the government could constitutionally require it to be shown only during the safe harbor period. The contrary result would be ludicrous: Imagine the federal government holding that a rerun of "M*A*S*H" or "The Mary Tyler Moore Show" originally broadcast during prime time in 1975 must now be shown after 10 p.m. because it has not yet been rated.

The constitutional problems are even more obvious when we come to programs like news reports that often cannot be prepared well in advance. Should we say that the "NBC Nightly News" cannot be broadcast except in the safe harbor period because Tom Brokaw did not pre-screen it with an industry council? And should the same reasoning apply to CNN broadcasts from the former Yugoslavia or the latest results from the New Hampshire primary?

Live performances present similar difficulties. Industry officials can surely pre-screen scripts if they are available. But the government must not be able to shunt all live performance into the safe harbor period simply because a bureaucracy cannot pre-screen it. It is important to stress that when we talk about live programming, we are not speaking primarily about raunchy talk shows at two o'clock in the afternoon. We are talking about the World Series and the Super Bowl, as well as late-breaking news and public affairs programming. I doubt Chairman Hundt would insist that President Clinton give his State of the Union Address during the safe harbor period because the speech had not been prescreened. (50)

The constitutional problems posed by unrated programming can easily be solved. V-chip technology should be designed to allow viewers to block out all unrated material. This puts the onus where it belongs, on the parent to avoid watching unrated material, rather than on the networks to rate it. In addition, the FCC should permit broadcasters to insert a special category code for news and public affairs programming, a code that could be routinely assigned to local and national news programs without prescreening for sexual and violent content. (Another code could be offered for sports programming). Parents then would have the option of watching or not watching such programming on the assumption that the vast majority of news and public affairs programming will not be harmful to children even though it will not have been pre-screened.

The agreement between President Clinton and media executives assumed that sports and news programming will be unrated, and that agreement is reflected in the practices of broadcasters after January 1997.(51) Unlike its Canadian counterpart, the present U.S. age-based system contains no special code for news and sports programming.(52) However, because much adult-oriented and experimental programming will also be unrated, the industry's solution is likely to cause problems in the future. By giving all news (and sports) programming a special ratings code, we would prevent these programs from being lumped together with all other "unrated" programming. This would allow parents to avoid all unrated programming and still watch news and sports without constantly having to change the settings on their V-chip. This approach is better in keeping with the general goal advocated earlier-- of creating a filtering system that requires as little effort by (and as little technological sophistication of) parents as possible.

If news and sports programming remain unrated, the danger is not that people will refuse to watch news and sports programming. The danger is that there will be enormous political and financial pressures to ensure that all unrated programming is acceptable for all children, so that unrated programming becomes equivalent to a G movie rating. The latter result is the exact opposite of what a V-chip system should accomplish.

I have argued that the constitutional problems of prior restraint can be avoided only if programs can be shown without prescreening or pre-rating; the burden must be on an external rating organization to provide ratings in time for broadcast. One might object that my solution allows broadcasters to do an end run around the V-chip; they can simply refuse to provide or obtain ratings, and put on violent and sexually charged programming without effectively being blocked out. But this result is unlikely to occur as long as parents are empowered to block out all unrated programs. Broadcasters, after all, are not insensitive to advertisers, and advertisers will be unlikely to spend their dollars on unrated programming if they believe that a substantial number of parents will block such programming. Thus, even without the use of a prior restraint, broadcasters will have considerable financial incentives to submit all programming to a private industry ratings board (or rate it themselves) when they can. In the case of live broadcasts, they will take whatever steps are necessary to guarantee a rating beforehand. Thus, for the vast majority of programming that most families want to watch, it will be possible to obtain a rating before broadcast. This is especially so if broadcasters are permitted to give news and sports programming a special rating without pre-screening. (53)

This solution is not without costs. Local cable access programming and other programs that do not or cannot submit to ratings can still be shown under my proposed solution. However, they will not be picked up in the homes of parents who have blocked out all unrated programs. Moreover, my solution will still tend to segregate programming that does not submit to pre-screening along with programming that remains unrated for strategic rea sons--for example, sexually explicit and violent programming. This will result in a smaller audience for such programming, and less advertising revenues. But it nevertheless ensures that people who want to watch this programming can have access to it, and at any time of day. In this sense it is more consistent with First Amendment values than the alternative.

 

Notes

 

27. section 16(a), 47 U.S.C. section 303 note (Supp. V 1993) (Broadcasting of Indecent Pro- gramming; FCC Regulations) (safe harbor provisions); 47 C.F.R. section 73.658 (j), (k) (1981) (Prime Time Access Rule).

28. Denver Area Educ. Telecom. Consortium v. FCC, 116 S.Ct. 2374, 2386 (1996).

29. 142 Cong. Rec. S706-07 (daily ed. Feb. 1, 1996) (statements of Sen. Helms and Sen. Coats); 141 Cong. Rec. S9770-01 (daily ed. July 12, 1995) (letter introduced by Sen. Exon).

30. See Denver Area, 116 S.Ct. at 2386-87 (Opinion of Breyer, J.).

31. In cyberspace, the closest thing to the broadcast medium is the electronic chat line, but even that is really closer to the model of telephone communication. Chat lines can be segmented according to subject matter or age requirements, and parents can then use filters to ensure that children cannot enter certain chat "rooms" which have subject matter or age requirements. The existence of plentiful and adequate filtering mechanisms means that the broadcast model should not apply. Cf. Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989) (rejecting total ban on "dial-a-porn" services in light of avail- able blocking mechanisms).

E-mail presents special problems. E-mail messages can be filtered by subject matter and by thread. However, the subject matter of an e-mail message may not disclose its indecent or harassing nature. Nevertheless, in this respect e-mail is very much like regular mail, and to this extent the constitutional forms of regulation of indecency should be the same.

32. See ACT III, 58 F.3d at 665. Moreover, it is at least theoretically possible that children could tape indecent programs during the safe harbor period and view them during the hours they are awake.

33. See id.

34. It is important to stress that no parental control system, like no filtering system generally, can be foolproof. Because the V-chip will be installed only in sets larger than 13 inches, children will still, in theory, be able to get around its blocking capabilities. They need only purchase a nine-inch set and a magnifying glass.

35. section 551(c), 110 Stat. at 141; section 551(e)(2), 110 Stat. at 142.

36. This figure depends on how one sees the likely future of technological development. If the V-chip is placed in standard cable boxes or in inexpensive add-on devices, it is reasonable to assume that most households that want them will purchase them more quickly, and the sunset period could be reduced accordingly. If, on the other hand, the V-chip is mainly implemented through new television sets, then something like ten years may be necessary for most old sets to wear out and be replaced. We must also factor in the possibility that the FCC's recent move towards digital television technology may tend to hasten the replacement of older sets.

37. section 551(e), 110 Stat. at 142.

38. section 551(b)(2), 110 Stat. at 140. The advisory committee is to be "fairly balanced in terms of political affiliation, the points of view represented, and the functions to be performed by the committee." Id.

39. section 551(b), 110 Stat. at 140.

40. Alexandra Marks, TV Industry Problem: Rating 400,000 Shows, Christian Sci- ence Monitor, Mar. 1, 1996, at 3 (noting that media companies originally resisted V-chip ratings but ultimately decided to "declare victory" and capitulate). CNN founder Ted Turner--who supports the V-chip--put it best when he wryly noted that "we're voluntarily having to comply." Kathy Lewis, TV Ratings Promised by January, Dallas Morning News, Mar. 1, 1996, at 1A.

A similar logic suggests that, if one broadcaster decided to rate its programming, others would feel enormous pressure to follow suit. Thus, when Rupert Murdoch broke ranks and announced that his FOX network would rate shows regardless of what the other networks did, he made it virtually inevitable that NBC, CBS, and ABC would agree to a ratings system. See March Gunther, Fox Leads Pack in Vow to Adopt Ratings System, Times-Picayune (New Orleans), Feb. 16, 1996, at C1.

41. At the time this essay was written, the FCC had scheduled hearings on the industry ratings system for early summer 1997.

42. As Valenti put it after the July 10, announcement, "This is not something we celebrated as a great victory....This is something we did because we had to do it." Albiniak, Ratings get revamped, supra note 6.

43. 481 U.S. 465 (1987).

44. See 22 U.S.C. § 611(j).

45. Current estimates suggest that there are over 600,000 hours of programming yearly on a 70-channel cable system, as opposed to around 1,200 hours of movie pro- gramming rated annually by the Motion Picture Association of America. Ed Bark, TV Ratings Sure To Be a Daunting Task, Dallas Morning News, Mar. 1, 1996, at 24A.

46. The Act is deliberately ambiguous on this point. To avoid the fail-safe provisions, "distributors of video programming" must "establish[] voluntary rules for rating video programming that contains sexual, violent, or other indecent material about which parents should be informed before it is displayed to children," and "agree[] voluntarily to broad- cast signals that contain ratings of such programming." section 551(e)(1), 110 Stat. at 142. The Act does not say that all such programming must be rated--only that rated programming be broadcast as rated. However, it is hard to believe that the FCC would be satisfied with a result in which an industry ratings system was developed but not implemented on a virtually universal basis, at least for pre-recorded programming other than news and sporting events. Even if individual members of the Commission could accept such a fig leaf, political pressures against it would be almost unbearable.

47. Hundt, supra note 13, at 1129.

48. There is also the related danger that the same program might receive different ratings from different distributors. The February 29, 1996 agreement between President Clinton and major media executives sought to allay these concerns by promising to establish an oversight group that would periodically review ratings of specific programs and comment on whether they met the industry's ratings guidelines. Lewis, supra note 37.

49. Cf. Lovell v. City of Griffin, 303 U.S. 444 (1938) (striking down prohibition of distribution of literature in city streets without permit from City Manager).

50. Of course, given President Clinton's natural propensities, the speech might go on into the safe harbor period anyway.

51. John M. Broder & Jane Hall, President Hears TV Executives Commit to Ratings System, L.A. Times, Mar. 1, 1996, at A1.

52. The new Canadian system specifically contemplates such a ratings category-- CTR-E-- which includes news, sports, documentaries, talk shows and other informational programming. See Canadians propose 7-Point TV Ratings System, Communications Daily, May 6, 1997.

53. The use of a special code for live news and sports raises its own problems. Among the most obvious is whether faux-journalism shows like "Geraldo" and "Hard Copy" should be classified as "public affairs programming" along with the "NBC Nightly News" and the State of the Union Address, or should be treated under the general ratings system. There are reasons to think that the latter solution is preferable, especially if a program devotes a substantial amount of its air time to sexually charged material. But this leads to dicey questions about what is "really" news and public affairs and what is not. See Jane Hall, TV Content-Rating Planners Weigh Category Refinements, Dallas Morning News, Apr. 7, 1996, at 2C.

The concern about "Geraldo" is, of course, symptomatic of a larger problem. If media executives really played fair in assigning V-chip ratings, it might well turn out that the vast majority of daytime television--lurid talk shows and steamy soap operas--is unsuitable for children due to its pervasively sexual content. Perhaps it's a good thing most kids are in school during those hours.

 

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