'Protected speech' should be rethought
By James P. Tuthill, San Francisco Chronicle
It isn't only stronger gun-control laws needed to remove the sickness in America that has caused so many Columbine-like tragedies in the past 13 years. We also need a cultural shift in what is regarded as "protected speech" under our First Amendment.
Violence is ubiquitous in media arts, whether it's music videos, TV, movies or video games. It's time Congress acted on recommendations the Federal Communications Commission made five years ago to restrict violence in all forms of media entertainment.
In 2007, the FCC released "Violent Television Programming and its Impact on Children." The report stated that by the first grade, most children have spent the equivalent of three school years in front of the TV. It cited studies done by Craig Anderson, a professor and former chair of the psychology department at Iowa State University, who concluded that research on violent television, films, video games and music reveals " 'unequivocal evidence' that media violence increases the likelihood of aggressive and violent behavior in both immediate and long-term contexts." It's logical to conclude that if watching violence in the media can affect children generally, then it probably has an even more severe effect on children who are suffering from mental illness.
So why hasn't Congress acted on the FCC's recommendations? One reason is that, like the gun lobby, the media industry has tremendous influence on Capitol Hill. A second reason is that the Supreme Court has repeatedly struck down Congress' attempts to control harmful content. But unless we have a fundamental shift in how we interpret and apply the First Amendment, we're going to endure more school massacres like Sandy Hook Elementary.
We have to grasp that this isn't 1789, when the only ways to communicate were in person or in print. The First Amendment must be adapted to today's media environment. We need to do three things:.
1. Regulate violence in media: Congress should grant either the FCC or the Federal Trade Commission the authority to regulate violence and cruelty in all entertainment media forms, regardless of the means of transmission: music, games, television, cable TV and the Internet.
2. Rate violent content: Either the FCC or the FTC should adopt the FCC's definition of violence from its 2007 report: "any overt depiction of a credible threat of physical force or the actual use of such force intended to physically harm an animate being or group of beings." The FCC or the FTC then should adopt mandatory ratings for violent content, require violent programming be shown on broadcast and cable television only when children are unlikely to be present and regulate - if necessary prohibit - the sale of violent and cruel material.
3. Reinterpret the First Amendment: The Supreme Court must apply new rules of interpretation to free-speech protections that recognize the effects of violence on our children and our society.
These proposals involve the regulation of violent content. To uphold the regulation of content, the Supreme Court has said such rules must meet two tests: They must serve a "compelling" social interest, and they must be the "least restrictive" means to accomplish the government's goal.
The Supreme Court frequently has held that the government has not met the second element because there is some less restrictive means to achieve the goal. The regulation of children's exposure to violent content likely would meet the first test, but fail the second under current Supreme Court criteria. Here is where breakout thinking is needed.
The Supreme Court must change the cost-benefit analysis it applies in these types of First Amendment cases. Today, it gives greater emphasis to the right of expression than it does to the harm prevented by regulating speech content. It should give the greater weight to the harm prevented when violence, particularly violence concerning children, is involved.
Former FCC Commissioner Jonathan S. Adelstein said America is "hooked on violence." It's time we broke this cycle. It's time Congress stopped heeding the calls of the lobbyists. And it's time the Supreme Court recognized the realities of the 21st century when interpreting the First Amendment.1/3/2013