High Noon

One question likely to arise during Tuesday’s presidential debate is whether Vice President Al Gore is serious about disciplining the entertainment industry for targeting children in marketing its R-rated movies, music and video games.

The issue was injected into the presidential election campaign after the Federal Trade Commission reported that the industry deliberately singles out children as young as 10 in its advertising of adult-rated entertainment. Decrying such exploitation, Gore has vowed to push for new federal regulations or legislation to force Hollywood to end such marketing practices if, after six months, the industry doesn’t begin policing itself. Last week, eight film executives, appearing before the Senate Commerce Committee, pledged to curtail some teen-directed advertising.

Yet, what legally can be done to stop the marketing of violent and explicit movies and music to minors? The candid, if disturbing, answer is probably not a great deal, because any new regulations or legislation would not likely withstand judicial scrutiny under the 1st Amendment’s guarantee for freedom of speech and press.

At its best, then, Gore’s challenge to Hollywood appears geared to winning the industry over to self-regulation. That is precisely what the Clinton administration did when persuading the tobacco industry to stop marketing its products to teenagers.

To be sure, the administration did so only as a result of long-fought and continuing civil lawsuits against tobacco manufacturers. Yet, the parallel between the entertainment and tobacco industries is strikingly close and illuminating. As in the tobacco wars, civil actions and lawsuits by determined state attorneys general could effectively force Hollywood to curb or curtail its aggressive marketing practices. Such litigation could bring Hollywood into line, or even bring it to its knees, in the absence of any new legislation or regulation.

During the past decade, the Supreme Court, in a series of rulings, has greatly expanded the scope of 1st Amendment protection for commercial speech--advertising for all kinds of products and services. Notably, in 44 Liquormart v. Rhode Island (1996), the court unanimously struck down a state’s ban on advertising the prices of liquor. In doing so, the justices threw into question other governmental attempts to regulate advertisements for alcohol, tobacco and other “vices.”

In addition, writing for the court in 44 Liquormart, Justice John Paul Stevens went out of his way to reject paternalistic arguments for regulating certain kinds of commercial speech. He also rebuffed Rhode Island’s argument that “a greater power includes the lesser power.” Namely, that if government can ban a product or activity, it may also regulate ads promoting such products or activities.

Gore concedes that the 1st Amendment is an obstacle to any new regulation or legislation. Instead, he has targeted Hollywood’s marketing practices. But, since the government may not ban violent or explicit movies and music under the 1st Amendment (and Gore recoils at being labeled a “censor”), any proposed regulation of the marketing of such entertainment would therefore appear doomed from the outset. At the very least, it would prove exceedingly difficult, if not impossible, to justify and defend in the courts.

At bottom, about the only kind of governmental regulation of commercial speech that the Supreme Court appears willing to uphold pertains to advertisements that are clearly misleading, false and deceptive. Not surprisingly, in his most concrete proposal, Gore promises that, “If necessary, we will support strengthening of current laws that cover false and deceptive advertising.”

But Gore’s proposal misses the point: Hollywood’s marketing of violent movies and music to teenagers isn’t misleading, false or deceptive. Its advertising is truthful. The problem is that it wrongly aims at very young and impressionable audiences.

For better or worse, an alternative to Gore’s regulatory ideas already exists. In spite of erecting high 1st Amendment barriers to regulating commercial speech, the Supreme Court has not completely ruled out another avenue for punishing the marketing of violence to teenagers.

Last year, for example, the court let stand a federal appellate-court decision permitting the relatives of a murder victim to sue the publisher of “Hit Man,” an instructional manual for committing murder used by the gunman in the killing. The 4th Circuit Court of Appeals had held that such publications invite “imminent lawless action,” and therefore are not entitled to 1st Amendment protection.

Similarly, the Supreme Court declined to review a Louisiana court ruling allowing a victim’s family to sue Oliver Stone, producers and others in the entertainment industry on the ground that the movie “Natural Born Killers” inspired a vicious killing spree.

Admittedly, these are not firm precedents, and the scope of such liability for artists, musicians, writers, producers and distributors is far from clear. Nevertheless, the Hollywood industry clearly has more to fear from a siege of civil actions, like those swamping the tobacco industry, than it does from the campaign rhetoric and regulatory threats of Gore.

Little wonder, then, that the movie executives sounded conciliatory and forthcoming--in sharp contrast with the seven tobacco executives who came across as deceitful and contemptuous a few years ago when appearing before Congress--before the Senate Commerce Committee. The studios declined to show up when the committee first took up the FTC report. But last week, they promised to abstain from test marketing R-rated films to minors and from advertising R-rated movies during TV shows geared to those under 17, among other changes. These pledges, it seems fair to say, aim to preserve the industry’s self-regulation and evade new regulations and potentially devastating litigation.

Make no mistake, the stakes could prove exceedingly high for Hollywood. Without needing new legislation or the kind of regulatory reforms Gore envisions, civil litigation could open Hollywood’s entertainment industry to countless costly lawsuits, carrying the potential for enormous damage awards, and thereby force greater self-regulation and self-censorship. If there remain any doubts about that, just consider what civil litigation and forceful state attorneys general are doing to bring down the tobacco industry, so close is the analogy.