TV programmers should be worried about the Fallout from a case currently before the Supreme Court. If the court comes down on the side of The Terminator (actually Arnold Schwarzenegger in his other role, as California governor) it could spell Doom for the TV industry’s current insulation from violence regulations in its Mortal Combat with the government for control of content. And they should not expect a Silent Hill, given that Sen. Jay Rockefeller (D-W.Va) has long wanted to regulate violence on TV.
The Supreme Court last week heard oral arguments in Schwarzenegger vs. Entertainment Merchants, in which California was challenging a lower-court ruling throwing out its ban on the sale of violent video games to minors.
John Crigler, a veteran First Amendment attorney with Garvey Schubert Barer, believes programmers have good cause for concern. “If the Supreme Court came out and said ‘Sure, we can regulate violence’ because of its impact on children,” Crigler says, “that would be the establishment of an ability to do something. And once the ability is established—surprise, surprise, they do something.” Defining violence would make the dispute over whether “‘pissed off’ or ‘pissed on’ was indecent small potatoes, compared to trying to pin down whether something was violent,” Crigler adds.
Some of the back-and-forth in that argument included analogies to violent cartoons and to the FCC’s conclusion Washington- Watch after studying TV violence that it had that power to regulate it, but only after Congress could come up with a definition.
Cable operators, in arguing that the FCC should not reinstate the ban, are concerned that if California wins and the court rules that content-based violence restrictions can be justified for the sake of the children, as it were, much of its own industry’s established First Amendment protections would be lost. “Courts would have little ability to undertake the critical task of distinguishing regulation of truly harmful speech from regulation of merely objectionable speech,” the National Cable & Telecommunications Association (NCTA) told the court in arguing against the ban.
And NCTA doesn’t see the ban stopping at video games: “Petitioners invoke concerns about ‘violent scenes in television and movies’ as well as ‘violent music lyrics.’ If [they] were to have their way, therefore, it appears that States would be free to regulate any form of speech they deemed potentially harmful to minors’ emotional development…”
Studios are also concerned that TV fare could be a target of a government violence ban. If the Court ruled in favor of the ban, “the government would presumably be empowered to proscribe the distribution of depictions of violence in motion pictures, television and books,” said the Motion Picture Association of America and various unions and guilds in a joint brief on the case.
Crigler says that the incursion on any right of speech will not be limited to a single medium. And whether it is broadcast, or cable, or Internet/video gaming, the FCC has been pushing to create the one set-top to unite them all. “The world is no longer going to be regulated medium-by-medium,” he says.
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