SPEECH BY REED HUNDT CHAIRMAN FEDERAL COMMUNICATIONS COMMISSION DUKE LAW JOURNAL'S 27TH ANNUAL ADMINISTRATIVE LAW CONFERENCE DUKE UNIVERSITY SCHOOL OF LAW (AS PREPARED FOR DELIVERY) FEBRUARY 9, 1996 TELEVISION, KIDS, INDECENCY, VIOLENCE AND THE PUBLIC INTEREST I am pleased to be with you today. I want to thank Jeffrey Faucette for inviting me to participate in this important conference, and Annette Parent and Mary Newcomer for all their hard work arranging my visit. I'm particularly pleased to share the dais with Jay Hamilton. Jay met with my staff and me a few months ago about the effects of television violence on children. He enlightened us all with his fascinating research. I also want to acknowledge the presence of Dr. Ellen Mickiewicz, Director of the DeWitt Wallace Communications Policy Center and Director of former President Jimmy Carter's Communications, Radio and Television Policy Board, and the presence of Jane Brown of the University of North Carolina, who led a team that contributed to the study on violence and television that was released last week. The announcement of the results of that study are particularly timely to the subject of my speech today: what can be done about the effects of media indecency and media violence on children, while honoring First Amendment values and refraining from mere politicization of these issues. This speech is one of a series of speeches in which I have been discussing how the Federal Communications Commission can craft a new paradigm for the use of the public's airwaves to serve the public interest. In the first speech, at Pittsburgh Law School in September, I discussed broadcasters' statutory obligations to serve the public interest, and how they can do more to educate children. In the second speech, at the Brooklyn Law School, I explained why the Children's Television Act of 1990 requires the FCC to quantify the minimum number of hours of children's educational television broadcasters owe the public in return for renewing their licenses. In the third speech, at Princeton's Woodrow Wilson School, I discussed the use of modern communications to reform the campaign process in the information age. In an attempt to bring communications law into the information age, Congress recently passed and President Clinton yesterday signed, the Telecommunications Act of 1996. The new law reflects the vast changes in telecommunications technology and services since the 1930s. It is the most sweeping overhaul of telecommunications laws in nearly 62 years. For over 60 years, broadcasters have been considered by Congress and the FCC to be public trustees because they use the public's property of the airwaves. As trustees, they must adhere to the strictures of Congress and the FCC concerning the duties owed to the beneficiaries of the trust: the public. The Communications Act of 1934 requires the FCC to grant and renew licenses to use the airwaves only after determining whether "the public interest, convenience and necessity will be served." Accordingly, anyone who wants a television license must satisfy that "public interest" standard. In addition, Congress has provided specific guidance in at least three areas. First, in the Children's Television Act of 1990, Congress directed the FCC, in reviewing TV broadcast license renewals, to "consider the extent to which the licensee...has served the educational and informational needs of children." Second, Congress prohibited indecent broadcasts outside of "safe harbor" hours, which currently extend from 10 p.m. to 6 a.m., the hours when it is least likely that unsupervised children will be in the audience. Third, the communications law signed yesterday requires television manufacturers to install "V-chips" to empower parents to control their children's access to violent programming. Further, the law encourages broadcasters to "rate" their shows so that the chips have something to read. Clearly, Congress has decided that broadcasters are subject to distinct public interest objectives not imposed on other media. In most years, the FCC receives over 100 complaints about violence, and well over 1,000 about indecency. In the first quarter of 1996, the FCC has received 42 complaints about violence, and 300 about indecency. The volume isn't great, but the controversy level is high. On the subject of indecency, the Supreme Court established the fundamental framework for analyzing sex and violence on television in its 1978 Pacifica decision. Pacifica involved George Carlin's "seven dirty words" monologue. A father was driving in his car with his child at two o'clock in the afternoon when they heard part of the monologue. It's a funny routine, but it's not suitable for children, he thought, and he complained to the FCC. Our decision in his favor went to the Supreme Court. The Supreme Court recognized that the monologue was not obscene and that the routine had been preceded by a statement that it was not suitable for children. But the Court held that the broadcaster could be penalized -- perhaps even lose its license -- if it played such material when children were likely to be in the audience. The basis of this Court decision is that broadcasting is unique for two reasons: radio and television have a "uniquely pervasive presence in the lives of all Americans" and they are "uniquely accessible to children, even those too young to read." As the Court explained, those factors distinguish broadcasters from the print media and justify special steps to control indecent material carried on television and radio. Congress has continuously asked the FCC to guarantee that indecent broadcasts will not run when children are likely to be in the audience -- as approved by the Supreme Court. Yet, broadcasters have devoted years of effort and millions of dollars in fees to litigate for the right to broadcast indecent shows whenever they wish. Allowing indecent broadcasts, but only late at night, was upheld in the face of a constitutional attack by the broadcast industry last summer by the en banc D.C. Circuit in the "ACT III" case, and the Supreme Court denied the broadcasters' petition for a writ of certiorari. In the ACT III case, the Court of Appeals upheld a ban that extends from 6 a.m to 10 p.m., and also made clear that a ban from 6 a.m. to midnight would be constitutional. Moreover, even though the Supreme Court has never applied strict scrutiny in a broadcast case, the Court of Appeals held that a 6 a.m. to midnight ban would be constitutional even if tested under strict scrutiny. The court reiterated the government's compelling interest in protecting children from materials that would impair their ethical and moral development. It held that there is currently no effective means to advance that interest other than a fairly extensive restriction on the hours during which indecent programming may be aired. As I mentioned, thanks to the leadership of Congressman Markey, the new communications law requires television manufacturers to install V-chips. Congress hopes they will be used to allow parents to prevent their children from watching excessively violent shows, but any sort of rating can be read by the chip. The intent of the law is to encourage broadcasters to develop rating systems on their own. The goal is to empower parents. We want the government to stay out of ratings, and we want to have, if possible, an indecency- type rule that channels violent programs to late-night hours. There is no longer any serious debate about whether violence in the media is a legitimate problem. Science and common sense judgments of parents agree. As stated in a year-long effort, funded by the cable TV industry, and involving Jane Brown of UNC, "...there are substantial risks of harmful effects from viewing violence throughout the television environment." As for public sentiment about the effect of TV, one poll showed that 80% of Americans surveyed agreed that "violence on TV shows is harmful to society." If that is so, then it seems clear that the public does not accept the degree to which broadcasters are fulfilling their public interest obligations. Nor does the public accept the assertion that marketplace competition for audience and advertising revenues is all that should be asked from broadcasters in return for the privilege of holding a license to use the public's property of the airwaves. In his State of the Union Address last month the President challenged the media to create programming that they would want their "own children and grandchildren to enjoy." He invited broadcasters and cable executives to the White House to discuss public concerns about their programming. That meeting is scheduled for February 29, and I hope it marks the beginning of a new understanding. When my predecessor, Jim Quello, was Chairman in 1993, he warned broadcasters that Congress might restrict violent shows to a safe harbor if the broadcasters do not adopt their own solution. Senator Hollings, a long-time leader on the subject of TV violence, has convinced the Senate Commerce Committee to pass a bill, S. 470, channeling violent shows to safe harbor hours. Senator Hollings' bill has been a key way to push the debate forward. Channeling violence to safe harbor hours, as Senator Hollings urges, would be constitutional. The ACT III decision upheld the channeling of indecency, and the main difference between violence and indecency, as Judge Edwards of the D.C. Circuit has stated, is that the harmful effects of violence are better established, so that the government interest is more compelling. A second difference is that indecency often involves language, whereas violence usually does not. Accordingly, the depiction of violence is farther from the core of First Amendment protection. The differences between violence and indecency support the proposition that, as a matter of constitutional law, regulation of violence is less objectionable than regulation of indecency. Because the Supreme Court made clear in Pacifica that indecent material may be regulated, as the en banc D.C. Circuit confirmed in ACT III, it is therefore permissible to regulate TV violence. The industry has argued that the V-chip law raises prior restraint and compelled speech issues, but there is no merit to those claims. With respect to the prior restraint argument, there need be no delay resulting from labels. To the extent that delay is a possibility, unlabeled shows may be shown during safe harbor hours. To the extent that there is any "compelled speech" claim, broadcasters should be free to disown any label. Allowing the broadcaster to identify the label as the product of a rating body with which the broadcaster does not (necessarily) agree essentially eliminates a compelled speech argument because the rating does not compel the broadcaster to alter his own message. Alternatively, broadcasters could air the show during safe harbor hours without a label. Moreover, any labeling requirement currently under consideration is less questionable constitutionally than the requirement that was upheld in 1987 in Meese v. Keene. That case involved three Canadian films about nuclear war and acid rain that were classified as "political propaganda" under the Foreign Agents Registration Act of 1938. The films, therefore, had to be provided to the Attorney General and labeled before being shown. The standard label states that a film had been registered under the Foreign Agents Registration Act and ominously adds that "[r]egistration does not indicate approval of the contents of the [film] by the United States Government." The Court rejected the constitutional attack on the Act even though the appellant argued that it is "'a Classic Example of Content-Based Government Regulation of Core-Value Protected Speech'" because the Act's reporting and disclosure requirements apply only to speech with a "political or public-policy content." With respect to the labeling requirement, the Court three times explained that labels advance free speech interests and that suppression of labels injures free speech interests: it noted that "this kind of disclosure serves rather than disserves the First Amendment," described the labels as calling for "additional disclosures that would better enable the public to evaluate the import of the propaganda," and concluded that "[i]ronically, it is the injunction entered by the District Court that withholds information from the public." Thus, a mandatory V-chip labeling requirement would be permissible under Meese v. Keene. On the one hand, any burden imposed by a V-chip labeling requirement would not be on core political speech. On the other hand, the entire purpose of the V-chips is to provide useful information to parents. Thus, it is the broadcasters who want to suppress information, and it is ironic that they cite the First Amendment in support of their suppression effort. The requirements outlined above are not only constitutional, their implementation would advance First Amendment interests. As Professor Cass Sunstein has explained in his 1993 book, Democracy and the Problem of Free Speech, the drafters of the First Amendment designed it to advance "public deliberation and democratic self-government," and the First Amendment has "educational and aspirational functions." Accordingly, a requirement designed to educate our children serves the goal of the First Amendment. And so do requirements designed to assist parents in raising their children as they see fit. Instead of fighting the tide of scientific and lay opinion, broadcasters and cable operators who want to show violent material at times when large numbers of children are in the audience should label their shows for violent content. If they adopt such an approach now, they will avoid losing in the Supreme Court and the court of public opinion. Finally, I think broadcasters should respond to public and Congressional requests for improvement by funding one or more institutes, protected by principles of academic freedom, continuously to advise broadcasters and the American people on the impact shows are having on children. Broadcasters and cable operators have begun to use both academic and private experts to evaluate the violence in their programming. The broader advisory groups that I am suggesting would assist everyone, including the FCC and parents, in determining what educates kids and what does not, what is inappropriate violence and what is appropriate, and what is indecent for children. Parents, who in a sense are the ultimate experts, know how hard these issues are. Lawyers like myself know that we should rely on psychologists and other social scientists for guidance. Broadcasters should seek, and guarantee, that guidance for everyone. The impact of the media, especially of TV, on our culture and especially on our kids, is a major part of the values discussion that is at the heart of the political turmoil in our country today. That puts the FCC in the center of the debate. As the communications revolution increases in its profound impact on our economy and society, on adults in the workplace and children in school, we have a high duty to guarantee that this revolution helps kids and doesn't hurt them. How we fulfill that responsibility determines the future of our society, and is our ultimate test. - FCC -