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Progress on Point Release 14.12 June 2007 Periodic Commentaries on the Policy Debate

Progress on Point

Release 14.12 June 2007

Periodic Commentaries on the Policy Debate

The Complexities of Regulating TV Violence *

Robin Bronk Robert Corn-Revere Jonathan L. Freedman Henry Geller Adam Thierer, Moderator **

Moderator Thierer: Good afternoon. My name is Adam Thierer and I serve as a Senior Fellow at the Progress and Freedom Foundation here in Washington, D.C. I want to welcome you to this afternoon's congressional seminar on the complexities of regulating TV violence.

As all of you are certainly aware, on April 26 th , the Federal Communications Commission released its long awaited report on violent television programming and its effect on children. In that report, the FCC argued that the government should assume a greater role in regulating violent video programming on television. The agency concluded that such regulation would "serve the government's interest in protecting the well being of children and facilitating parental supervision and would be reasonably likely to be upheld as constitutional."

As a result, Congress appears poised to act and legislation is expected soon to be introduced by Senator Jay Rockefeller and other lawmakers potentially. This legislation would open the door to federal regulation of violent television programming for both over the air broadcast television networks and stations as well potentially as cable and satellite television networks and stations.

Is such regulation necessary? Do parents have the tools at their disposal already to potentially handle this responsibility on their own? Or is additional government action needed to assist them? If so, how would excessively violent content be defined? What would the impact of such rules be on artistic creativity or freedom of expression? Finally, would such rules withstand constitutional review under First Amendment scrutiny? These are just a few of the questions we hope to address and answer here today as we explore the complexities of regulating televised violence.

Before I introduce our distinguished group of experts we have assembled here today to discuss these matters, I just want to make mention of the fact that the Progress &

*

This is an edited transcript of a program that took place on May 18, 2007 in Washington, DC. The edited transcript has not been reviewed by the program participants. Speaker biographies are available at the end of this transcript.

**

1444 EYE STREET, NW SUITE 500 WASHINGTON, D.C. 20005 PHONE: 202-289-8928 FACSIMILE: 202-289-6079 E-MAIL: mail@pff.org INTERNET: http://www.pff.org

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Progress on Point 14.12

Freedom Foundation has just released a new report on this matter entitled "The Right Way to Regulate Violent TV," which is available out here on the table as well as on our Web site, www.pff.org. 1

This report lays out 25 pages of different types of parental control tools and methods to potentially deal with this question of objectionable programming in our homes.

In addition to that, we will be releasing next month a new report, from which this is condensed, a booklet entitled Parental Controls and Online Child Protection: A Survey of

Tools and Methods,

in

which I attempt

to outline for all technologies and all media

platforms all the various tools and methods that are out there on the market today to assist

parents in this regard.

Please excuse this shameless plug for my own work, but I do feel that the parental controls part of this story is obviously very important and will play a role in this debate. I will say no more about it myself, though, today.

The experts we have assembled here today, instead, are going to speak much more broadly on other issues, including the legal, practical, and even scientific concerns about the current effort to regulate violent video programming.

The format is very straightforward. I've asked each of our panelists to keep their opening remarks to around eight to ten minutes and leave plenty of time for rebuttal and discussion and then audience Q&A after that.

Let me introduce our panel. I would just ask you as a courtesy to them before we start to please mute your cell phones or other portable electronic devices.

First we will hear from Henry Geller, who was General Counsel of the FCC from 1964 to 1970 and was Special Assistant to the Chairman from 1970 to '73. Upon leaving the FCC, he was associated with the Rand Corporation and the Aspen Institute. He also served as Assistant Secretary of Commerce for Communications and Information in the Carter administration.

Second we will hear from Bob Corn Revere, who is a partner in the Washington, D.C. office of Davis Wright Tremaine, where he specializes not only in First Amendment law but in all facets of Internet, media, and communications policy and law.

Bob has argued many important cases before the courts, but he is probably most proud of the fact that he won the case of United States v. Playboy Entertainment Group, in which the United States Supreme Court struck down section 505 of the Telecom Act of 1996 as a violation o First Amendment.

1 Adam Thierer, “The Right Way to Regulate Violent TV,” Progress & Freedom Foundation Progress on Point no. 14.10, May 14, 2007, http://www.pff.org/issues-

pubs/pops/pop14.10rightwayregulateviolenttv.pdf

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Incidentally, Bob filed comments in the proceeding on violence before the FCC on behalf of a diverse coalition of media coalitions and organizations. These comments are available on the table as well.

Third we will hear from Professor Jonathan Freedman, who is a professor of psychology at the University of Toronto. He received a B.A. from Harvard and a Ph.D. of social psychology from Yale. He has taught at Stanford University and Columbia University before moving to the University of Toronto.

He has addressed the issue of the supposed link between media violence and aggression in many different articles and most recently in this book, Media Violence and its Effect on Aggression: Assessing the Scientific Evidence.

He has also brought along a new paper that he has released for the Media Institute today, which is available out there, which condenses his findings and updates.

Finally, we will hear from Robin Bronk, the Executive Director of The Creative Coalition, a leading nonprofit, nonpartisan advocacy organization in the arts and entertainment industry. She is dedicated to educating and mobilizing the arts community on issues of public importance, including First Amendment matters.

Before joining The Creative Coalition in 1998, Robin served as Vice President of Corporate Community Strategies for APCO Associates and before that worked at ABC News and has won numerous awards for her works on public affairs.

With that, I am going to turn it over to Henry Geller. Our panelists will be speaking today from their seats. Then, after they are done, I will come back up here to moderate Q&A.

Henry?

Mr. Geller: Thank you, Adam.

I am going to focus on the constitutional issues. As you heard, the FCC concluded that the regime proposed would likely be held constitutional. I disagree with that for two reasons.

The first one involves the difficulty of defining excessive violence. You do have to have a workable definition of what is being prohibited or channeled to late hours.

The cases, the 1997 Reno case and to quote one other, Justice Scalia in a recent argument involving campaign reform said, "This is a First Amendment case. We don't make people guess whether their speech is going to be allowed or not by Big Brother. If you are going to cut off speech, you must have a clear First Amendment line."

The reason why is that if you go over the line, you can be penalized. Now the penalties are in thousands of dollars. The top one if it's continuing is $325,000. In broadcast, your

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Progress on Point 14.12

renewal can be held up. Therefore, there are chilling effects here and the possibility of self censorship to avoid these penalties.

The FCC after three years did not develop any definition of their own. They made

suggestions to Congress.

They also said, "Congress, you can do it."

But it is a very

difficult task.

If you just look at the starting point, the definition of excessive violence, it

means going beyond the limit, going beyond what is proper. subjective.

That is just mush.

It's

It's going beyond what is proper. What you end up with is subjective judgment. It won't do. If you look at the industry definitions, they use terms such as "graphic" or "moderate" or "intense." Again, the line between them is just subjective.

If you look at what has been used in research, there are a number of terms that have been used, "extensive violence," "realistic violence," "justified violence," whether the perpetrator was portrayed as attractive.

I go on and on about these context issues, but, again, you end up not knowing whether you can do something or not. You could get a definition that said, "If you kill anybody or tried to injure them," but then you would have much too much. It would be covering everything from Hamlet on.

You could try to describe, let's say, a slasher movie, Texas Chainsaw, but if you just eliminated that, you would have covered very little of what you are trying to do here.

Judge Harry Edwards wrote a law review on this. He concluded that it can't be done, that either what you are trying to do with the definition is overbroad or vague or it's so specific that it just doesn't do the job at all.

If you look at what has been done in the indecency channeling, it has its problems. That is shown by pending appeal. But that is going to be a pleasant picnic in implementation compared to what would happen if you went on to violence.

When you look at the number of complaints in indecency, it doesn't even begin to what you would get in violence because violent programming is really pervasive.

As Commissioner Adelstein said in his statement, "We are in a sea of violence." He showed if you look just at the schedule of the networks from 8:00 to 10:00 p.m., their violent programming is very common in that time segment.

The only conclusion, you come to is that if you try to implement that program in excessive violence, you would end up with a horrendous problem. It would be horrendous for the industry. It would be for the regulators. It would be for the adults, their First Amendment right, and for children because children have First Amendment rights also.

The second block here involves the reasonable alternative. If you are doing content

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regulation, the jurisprudence says that it must be for a compelling governmental purpose narrowly tailored to that purpose, and it must be the least restrictive way of doing it, of accomplishing that purpose. If there's an alternative that avoids the regulation, it must be taken.

I am going to address this first in terms of cable. That is fair enough because 86 percent of TV viewers now watch through cable or through satellite, the subscription satellite.

The first thing to note here is that cable does not come within the jurisprudence of broadcast that the Supreme Court has fashioned. In the broadcast field, the government is allowed much more leeway to fashion regulations, including in the content area. It's a case called Red Lion that most of you may be familiar with.

The government tried to extend that to cable. In the 1994 case Turner, the Supreme Court said, "No. You cannot do that."

Cable and subscription satellite come under the traditional jurisprudence, which means that if there is this alternative, it must be taken.

In the case that Adam referred to already, the Playboy case that Bob won, the Supreme Court held that in dealing with what was largely a channeling requirement, it was beyond the hours when the children would not be in audience or would be only a small number, it invalidated that.

It did so because it said you have an alternative. Under the act, a cable subscriber can turn to the cable company and say, "I don't want that channel" and it will be taken off.

It is quoted in Adam's paper, but I want to read what the court said because it goes to some of the arguments made here, "It is no response that voluntary blocking requires a consumer to take action or may be inconvenient or may not go perfectly every time. A court should not assume a plausible less restrictive alternative would be ineffective. And a court should not presume that parents given full information will fail to act."

The court in Reno also referred to the fact that when you were on the Internet, you have software available that the parent can program. There are references in the court opinion

to the V chip.

There are references to the fact that cable is going digital.

When it goes

digital, it has set top boxes, which can be readily programmed. So you have all of these alternatives available.

The crucial point I want to make here is that everything is going digital. We look ahead. It is all going to be the Internet probably in ten years.

But if you look even at broadcast.

In

a

year

and

a

half,

which

is

not

a

long time,

broadcasting will be doing digital February 2009. When it does digital, you can have a chip easily. It's trivial expense. That does the V chip. You make an enhanced V chip that

allows you to program.

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The cost would be very small. The government could even compel it if manufacturers didn't add it just as a plus. The result of that, you would have a software solution here, just as you have in Reno.

The result of all of this is that what has to be done here is to take these tools, make them fully available, and to inform the parent of what is available, how it is to be used. The government should nudge in this area, using maybe the Department of Education.

It could use all kinds of resources that have been mentioned in the papers. It could use PTAs and subsidize their action. The point is to put the parent in a position to make the very difficult judgments that have to be made here and only they can make.

You can take anything you want to, The History Channel. At some point it might be full of war and terrible violence. At another point it might be very educational. Only the parent can exercise the judgment that would make that division.

The final point I would make is that the cases that I am relying upon are recent cases. They are all within the last ten years. Every justice who participated in the majority opinion in Playboy and in the Reno case are still on the court.

I think that the FCC does a disservice when it puts out a notice, discusses these issues, including constitutionality, and does not confront cases that are directly in point.

Moderator Thierer: Thank you, Henry. That's very good.

Bob Corn Revere?

Mr. Corn- Revere: Thanks, Adam. Thanks for coming, and welcome to the gray hair club for men.

(Laughter.)

Mr. Corn- Revere: Actually, apologies to Robin.

(Laughter.)

Mr. Corn- Revere: Adam, don't worry. You will get there.

I'm going to talk a little bit about the FCC violence report and whether or not it provides a sound basis for policy making. I have to say it's a little daunting following Henry Geller because if there is a source of institutional knowledge for communications law in Washington, it's Henry. I'm personally thrilled that he agreed to be on this panel.

Now, as Adam mentioned, I did file comments in the FCC's notice on behalf of a number

of clients.

I

just

want to make clear

that I'm speaking for myself

today.

I

am

not

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representing any clients in being a part of this panel.

  • I will say it's a little bit like going to the Penn and Teller Show, though, where Penn will sometimes complain that, you know, he doesn't get sympathy, where Teller does, when they do dangerous things on stage. Because his character that he plays on stage is sort of an abusive bully, unlike Teller, who gets the sympathy. But then Penn adds that the “character” he plays is awfully close to his real personality.

It

is

the

same with me.

When I represent clients and take strong First Amendment

positions -- even when I'm not speaking for them -- the positions that I take are really

awfully close to the ones that I believe in anyway.

As part of that, too, I did teach a First Amendment seminar at Catholic University for about 13 years. So a lot of what I have to say comes from that experience.

In terms of the FCC's violence report, I think the best thing that people can do if they want to evaluate whether or not it provides a sound basis for policy making is to first read the 2004 Notice of Inquiry and then immediately afterward read the 2007 Report.

  • I think it is striking the extent to which the final report failed to answer any of the essential questions that were raised in the 2004 Inquiry. Let me just mention three of them by way

of overview.

For example, the 2004 Notice asks, "What are the effects of viewing violent programming on children and other segments of the population?" It cited the 2001 Surgeon General's Report on Youth Violence and asked for any additional recent research in the field. It said that there are a number of questions that are not answered, and asked for guidance on whether watching Wile E. Coyote fall off a cliff in a cartoon has more or less impact on a child's psyche than reading about Hansel and Gretel forcing a witch into a hot oven in Grimm's Fairy Tales. That was the question that the Inquiry laid out.

In 2007, the FCC acknowledged that very little new information on the issue was submitted into the record of this proceeding, but then went on to say, "But we agree with the 2001 Surgeon General's report," which, of course, was the starting point for the FCC's questions.

So essentially what the Commission did was convert the questions that it raised in 2004 into conclusions in 2007 and then added at the end of the Report that it was on that basis it would recommend congressional action.

Secondly, the Inquiry asked whether particular portrayals of violence are more likely to cause deleterious effects than others, and what specific kinds of programming should be the focus of any further public policy making in this area. It asked whether or not public policy making should address all violence or just “excessive and gratuitous violence,” and how should that be defined.

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Of course, as Henry has already mentioned, the Commission in its 2007 Report didn't come up with a definition of violence. It said, instead, that "Developing a definition would be challenging." And it concluded only that "We believe Congress could do so." The essential question that the Commission raised in 2004 was ducked in the 2007 Report.

Then, finally and there are other questions, but I am just focusing on these three the Commission in 2004 asked, "Are there legal constraints on either Congress or the Commission to regulate violent programming?" And it said, "Given the definitional issues discussed above, how could Congress or the Commission define some form of violent programming in a way that is not unconstitutionally vague or overbroad?"

The Commission had a really scant discussion of the legal issues in the 2007 Report, and it simply concluded, "We believe that developing an appropriate definition of excessively violent programming would be possible, but that such language needs to be narrowly tailored and in conformance with judicial precedent."

I am unclear from reading the Report what precedent the Commission had in mind, since it discussed none of the recent cases that have expressly dealt with the issue of violence in media.

Based on

those

overview

points,

let

me

focus

on

what

I

think

is

the

heart of

the

Commission's Report; that is whether or not it is possible to come up with a definition of

violence.

Now, that is not just a narrow legal issue. It's not just a question of whether or not some definition of violence would be unconstitutionally vague or would lack due process or would be difficult to fashion as a matter of legislative policy.

This is really a question that goes to the heart of all of the issues that are debated as part of what to do with media violence. For example, defining what you are trying to study is necessary for social scientists to determine the phenomenon that they would have policy makers then regulate. It's necessary for policy makers to understand what kinds of programming they want to restrict.

And it's also important to see how those two issues overlap; how the social science works

with the

law.

And

then,

constitutional muster.

of

course, you have come up with a definition to pass

What the FCC did instead, was say we think it's possible to come up with a definition of violence, and we think that it should be done as a matter of “context.” You have to look at the context of the violence and base that contextual analysis on what various researchers have said about the importance of “context.”

Now, that is all well and good except that none of the researchers have agreed on what

kind of violence is problematic.

Many of them use different indices of violence.

And so

even determining what you are going to study and how that applies to the law is a very

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difficult enterprise.

For example, the UCLA Television Violence Report observed that many feel that violent spectator sports, such as football or hockey, make violence an acceptable or even desirable part of American life. As a consequence, it includes sports violence in its definition of televised violence.

Some researchers, like Joanne Cantor, have said that news is another source of violence that can be disturbing to children and that that should be included in the definition as well.

There has also been testimony before the FCC in 2000 that there is, similarly, the same kind of psychological impact from programs such as Schindler's List and Saving Private Ryan.

So, even though there is an appeal to just trying to go after the “bad” violence, it's not clear that this notion links up to the problem that policy makers would seek to solve -- the negative effect of violence on children.

In that regard, the Commission's Report said that it would exempt news programs from the definition of violence to be regulated, but it's not clear that that is consistent with what the researchers are saying. Some researchers suggested, as I mentioned, news violence may be problematic as well. So there is no indication that any regulations, if they were adopted, would have any impact at all on the problem that has been identified.

In that regard, unless you have a working definition of violence, you don't even know what you are counting when you are trying to argue one way or the other that violence is either increased or decreased in media portrayals.

And, by the way, I should be clear. When I say violence in the media, unless you're talking about sports, you're not talking about actual violence. You're talking about pictures of violence. So, again, you have to determine what representations of violence you are going to include.

One of the most recent and well publicized examples of such confusion was a Parents' Television Council's report "Dying to Entertain," which was their follow up on the 2003 report called, creatively, "TV Bloodbath." The most recent report suggested that the amount of violence in primetime has increased an alarming 75 percent, since their last report in 2003.

The problem with this claim is that the definition of what is considered violent, has shifted between 2003 and 2007. In its 2007 Report, although it doesn't provide its methodology, PTC says, "Categories of violence tracked by PTC analysts include: person on person violence; self inflicted violence, such as suicide; medical violence, gory autopsies, for example; and general mayhem, including explosions, car crashes, and the like."

It goes on to say that even if you have something that deals with the aftermath of violence,

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Progress on Point 14.12

like discovering a dead body, I guess you can presume that violence happened in the scene. So you will count that, too.

The problem with this approach is that the category of medical violence wasn't included in the 2003 report. And the 2007 report suggests that ER is the second most violent series on television. Ninety-one percent of the violence in the program was categorized as “medical violence.” And the remaining nine percent was “general mayhem.”

So, unless you have a working definition of violence, you can't even count what programs you are going to study, let alone determine what their effect is, or what law or policy should be fashioned in response to them.

That brings us to the legal questions. And Henry, I think, has done a great job of indicating that there are massive legal hurdles to overcome. As a point of fact, no court has ever upheld restrictions of this type, even though attempts to regulate violence in various forms go back to the 1940s and I'm sure before that.

But the first Supreme Court case to address it was in 1948, striking down a restriction on the publication of stories involving celebrations of bloodshed and lust in general violence.

Henry mentioned the path breaking article by Judge Harry Edwards, which I think is must- reading for anyone who really wants to look at this area. The bottom line is this. Judge Edwards described trying to regulate in this area as a “jurisprudential quagmire.” I think we are all too familiar with quagmires these days.

But he adds, with his co author, "When it comes to televised violence, we cannot imagine how regulators can distinguish between harmless and harmful violent speech. And we can find no proposal that overcomes the lack of supporting data."

There have been numerous courts that have looked at this issue, including the Eighth Circuit in Missouri in the mid '90s, when it struck down a regulation that would have required the regulation of violent videos, including “slasher videos” that Henry had mentioned. In Tennessee, the state Supreme Court struck down a similar law relating to violent literature being distributed to minors.

And this was all before--these cases were all out there before--the FCC's Report. In fact, the new area that has the greatest source of litigation in this area involves the regulation of violent video games. Two Circuits and one District Court had already struck down such restrictions before the FCC's Inquiry was issued in 2004. Since then another five District Courts have issued opinions striking down various state laws.

So the count now is, in addition to the Indianapolis ordinance, regulations of violent video games have been struck down in Illinois, Missouri, Michigan, Minnesota, California, Louisiana, Oklahoma, and Washington.

It's getting to the point that judges are beginning to lose patience with the various state

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regulators, who are well aware of the cases that have been decided.

In one of the more recent cases striking down the Minnesota law, Judge Rosenbaum wrote, "The court will not speculate as to the motives of those who launched Minnesota's nearly doomed effort to protect our children. Who, after all, opposes protecting children? But the legislators drafting this law cannot have been blind to its constitutional flaws."

So I think by not discussing the relevant case law and in simply trying to assume it could extend existing broadcast jurisprudence to this area, the FCC's Report really failed to answer the questions raised in its Inquiry and, for the same reason as Judge Rosenbaum identified, could not have been blind to the serious constitutional flaws.

Now, the last thing I would like to talk about is to discuss the proposed solutions that are laid out in the Report. They include what are called time channeling or we sometimes refer to it as the “safe harbor,” which prohibits the broadcasting of whatever the proscribed content is between certain hours. So, between 6:00 a.m. and 10:00 p.m., for example, “time channeling” prohibits broadcasting indecency. Time channeling is one of the types of proposals endorsed by the 2007 Report on violence. It also talks about a la carte distribution of multi channel video. Cable would be able to sell channels one at a time, for example.

I think the solutions are not only indefensible legally--and they certainly are indefensible legally--but they also are simply irrelevant. If nothing else, the proposed solutions are sort of a tribute to Andre Maginot, who, as you may remember, was the Minister of Defense in France from 1928 to 1931. He convinced his government to build a line of gun emplacements and bunkers on the German border, stretching from Switzerland to Luxembourg, and in a ten year project, France built all of these bunkers. But when the Germans invaded in World War II, they simply drove their tanks around the line. The “Maginot Line” has become synonymous with amusingly futile solutions to things.

Of course, the fact that the Germans were able to bypass the Maginot Line in World War II is bad news. The good news, I suppose, for filmgoers is you've got those great images of the Nazis marching into Paris during Casablanca. But that's really not very helpful when you are trying to actually solve the problem.

Requiring time channeling for broadcasting is a bit like an electronic Maginot Line. We live in a world in which people watching television at the time it's broadcast is an increasingly unrealistic phenomenon. In the age of TiVO, even in the age of VCRs, it isn't a solution to say you are simply going to make the program appear later in the evening if that means that people will simply watch it when they’ve taped it or recorded it on a digital video recorder to watch later.

This is true increasingly of all media. It increasingly is personal, whether you consider video iPods, wireless distribution through phones, or direct downloads on your computer. You can essentially watch anything you want when you want it. So to suggest that you are going to protect children, who are the larger consumers of personalized media, by time

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Progress on Point 14.12

shifting the program, strikes me as fanciful.

The next proposed solution is a la carte -- requiring the sale of video channels on a separate basis. I won't say much about that except to say that there is no justification whatsoever in the FCC's Report for regulating cable television or other multi channel media.

The entire justification is based on broadcast precedents. So, to say that you are going to regulate cable based on the analysis in the Report really doesn't even begin to complete the analysis.

The other thing that is really strange about the a la carte solution is that under the 1992 Cable Act, cable operators are required by law to make sure that all subscribers get all of the broadcast channels. So if the policy concern that the FCC identified was that broadcast television includes images of violence that need to be regulated and the law already requires people to get all of those channels anyway, then a la carte really does nothing to address that issue.

Again, the FCC says that news is exempt, but speaking of solutions, if the research indicates that news is the source of the problem, it's hard to tell what regulation is really going to accomplish.

Finally, if policy makers are looking for some kind of guidance and a more comprehensive analysis of both the social science data and the law, I would recommend the six Federal Trade Commission reports that have been issued since the year 2000. They total something like 800 pages.

Many of them, particularly the 2000 Report and the 2007 Report, which just came out in April, contain analyses of the law, including the more recent video game cases and their application. The 2000 report includes an extensive analysis of the social science research that Jonathan many care to discuss.

Overall if Congress or policy makers are looking for an indication of what direction to go with this issue, then there is an independent agency that has provided a comprehensive analysis. And I think the FTC provides a much better basis for making a decision than the FCC's report.

Moderator Thierer: Thank you, Bob.

Professor Freedman?

Mr. Freedman: Thank you very much.

I am not a lawyer. I am a psychologist. I am going to talk about the research, not the legal aspects of it. I want to start by just pointing out that of the three reports -- and I guess there are many more, but in this century, there have been three government reports that

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talk about the effect of television violence.

The Surgeon General's report concluded that there was a short term minor effect on aggression but that there was no effect on violence or criminal violence. And it was simply not a risk factor.

The FTC doubted that there was even any effect on aggression. And the FCC, although it's the strongest of them, says, sort of oddly worded sentence, "On balance, there is strong evidence," if that makes any sense to you, "that there is a short term effect on aggression," again ignoring the whole question of violence or criminal violence.

So I would have thought -- I'm not a lawyer -- but I would have thought that any attempt to limit access to television or do anything that might infringe on the First Amendment, you would have to have a very strong case for it and very sort of overriding purpose. And here what we're talking about is a short term effect at most and I'll tell you in a second; I don't agree with this a short term effect on minor aggression, whatever that means.

It's hardly a reason to turn the world upside down and start dealing with whether you can control children's access to television, which is probably impossible, even if you passed a law.

Now let me talk about what the actual research shows. Now, there are people, a group of people -- I'm sad to say they are mostly psychologists, who are absolutely convinced that the -- I guess they are convinced anyway -- they keep saying that the research shows that exposure to television violence causes people to be aggressive, to be violent, and is a cause for violent crime. They say this over and over again.

I just recently saw an interview I had.

I was trying to copy some of my old VCRs onto

DVDs. And saw an old interview I had with Leonard Eron, who was one of the great

figures

in

this

research,

overwhelming evidence.

1983 or

'4.

He says exactly

the same thing,

"There is

The case is closed."

Exactly why they continued doing the

research is not clear, but for them the case was closed.

But it is important to understand that none of these three agencies, although they all have some different points of view, not the Surgeon General, not the FTC, and not the FCC, say, “The case is overwhelming, the case is closed.” On balance, this is what the FTC says and the FTC doesn't even accept the on balance not overwhelming.

What does it show? This is really what it would come down to.

I have read all of the

research. There are over 200 articles on this. I have published a book on it.

Reading all of the evidence, it is very clear that, despite what they say, it does not produce a strong case for believing that exposure to television violence causes aggression, much less violence. There is never any hint that it affects violence but even aggression.

Some of this research is very good. People say, "Well, it's lousy research." That's what

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Progress on Point 14.12

I'm saying.

I'm not saying that.

Some of it is very good research.

Some of it is not so

good research. Some of it can be criticized, and I have criticized it.

Taking it all at face value, ignoring all of the criticism, if you simply look at the findings; every line of research -- and there is experimental research, and there is correlational research, and there is survey research, and all different kinds -- every line of research has failed to produce even a simple majority of studies that show this effect.

In fact, most of the lines of the research overwhelmingly -- I hate to use their word but overwhelmingly show that there is no effect on aggression. So that's one point.

Then the thing is that every once in a while, they do get an effect, but when the effect then the question comes -- and this is Bob's point only; it's the other end of it -- how do you define aggression? Now, how you define violence is very difficult. But how do you define aggression?

Well, it's very difficult to study aggression, but listen to some of the things that have been done. One of the cutest studies is an experiment that says to a five year old boy, "If I had a balloon, if I had a balloon, would you pop it?" A double hypothetical. If the boy says, "Yes," that's aggression. Do you believe this? These are serious people supposedly.

(Laughter.)

Mr. Freedman: Then there's a whole line of studies that use bobo dolls. Maybe some of you don't know what a bobo doll is, but it's an inflatable plastic doll. It looks like a clown. It has a big nose usually. If you hit the nose, the doll is weighted so that it goes down and then it pops back up.

Hitting the bobo doll on the nose is a sign of aggression. That's used as a measure of aggression. Now, that is what bobo dolls are for. They are designed to be hit.

(Laughter.)

Mr. Freedman: It's like saying kicking a football is aggression. Footballs are meant to be kicked. Soccer balls are meant to be kicked.

Kicking a soccer ball is not aggression. Punching a bobo doll is not aggression. In fact, I have sometimes suggested that not punching a bobo doll is aggression because they expect to be punched. You are letting them fulfill their role in life.

(Laughter.)

Mr. Freedman: Sometimes they have used something a little better. People can set a noise. And how loud the noise is is an indication of being aggressive. A hypothetical person in the other room is going to hear this noise.

Progress on Point 14.12

Page 15

The noise is never louder than what my son and probably if you have any teenagers listen to voluntarily all the time because you can't make it any louder than that because it might really damage their eardrums. But, anyway, a loud noise isn't normally what we think of as an aggressive act.

There are a few studies, almost only with children, where they look at actual behavior in a playground, for example. And almost all of those failed to find anything. Do they really punch and kick and get into fights? Almost never.

And it's not easy research to do because kids play around. You know, boys always are fighting. How can you tell whether they're fighting really or just playing around?

Keep in mind that there is a strong bias against publishing studies that don't get an effect.

This is true in all of the science, certainly true in my field. study and not getting an effect, well, that's pretty boring.

We like to see effects. Doing a

And it could be due to your incompetence. It could be due to that you didn't do it right. So there is a very strong bias to study studies that get an effect and a very strong bias in favor of those things that sound right.

That television violence causes aggression sounds right to an awful lot of people including psychologists. So there is a bias against publishing these so called negative results. Yet, by the far, the majority of the published studies get negative results, despite the bias. So, I think it is very clear that to me that the research doesn't support it.

  • I wrote this book. I submitted a report to the FCC. And what I call the “other people” who are very strong advocates of the other position, I call them the “true believers” because

they have sort of religious zeal about them.

The “true believers” could have looked at my book and said, "Well, we don't agree with that. And here is why. Page 6 he makes an error. Page 8 he makes an error. Page 10 when he talks about one of our favorite studies he gets it wrong."

They could have gone through it and pointed out all of the errors I made. I probably made some errors. I don't know. I tried not to, but they could have pointed this out. They didn't do that.

  • I also submitted with Bob a fairly long submission to the FCC. They sort of mention it in

passing. The FCC never says, "Well, we rejected that because on page," whatever it was, 12, "we don't agree when he said" blah blah blah, no line by line or page by page or study by study criticism.

But that is what science is about.

You don't just say, "I don't like it.

I don't agree with it."

You have to find the errors. You can't just say it's biased. Do you think it's biased? Show that it's biased. We can't just say, "Well, he spends too much time on the studies he likes

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Progress on Point 14.12

and not enough time on the studies we like." You have to show that that happens. So, I think this is sort of no thinking. I mean, they're not paying attention to the arguments.

Everyone has a problem with this because this is a sort of he said-he said kind of situation. So, I say to you the research doesn't show it, doesn't show an effect. And they say over and over and over again "The research is overwhelming. The case is closed."

  • I assume that most of you, it's probably fair to say all of you -- none of you, have read all of the research. I mean, I don't recommend it.

(Laughter.)

Mr. Freedman: It is not fun reading. Some of them are hilarious, but, it's not bursting the bubble. The balloon is nice. But most of it is pretty tedious.

So you are asked and the FCC was asked and Congress is asked, "Take somebody's word for it." Whose word do you take? It's not easy. And that's a problem. And it really is a problem.

  • I am not suggesting that anyone should go back and read all of the studies, although you might pick a few and read the ones that are controversial.

  • I will make an offer. I know Senator Rockefeller is going to apparently submit a bill. Now, I happen to have been in college with Senator Rockefeller for a couple of years. And I

know that Jay was then a very intelligent, very sincere, very honest person. And I suspect

  • I don't know; I haven't seen him in a long time -- that he's the same now, that he sincerely believes that television violence is harmful.

But he's basing that -- again, I assume he hasn't had the time and probably even his staff has not had the time to read it all, maybe not the training. So he's basing it on the people who talk the loudest or the people who sound right.

  • I would make an offer to Jay Rockefeller or to any other Congress person, congressman

or congresswoman, who has an open mind about this. Pick five or ten of the studies that

you think or you are told produce the strongest evidence that television violence is harmful.

Pick five or ten of them and I will spend some time with you.

convince you, there convincing evidence.

are

no

ten studies,

and

there are

no

You pick five or ten.

And I really think I can five studies that produce

I really

We'll go over just those five or ten.

think I can convince you. Okay. I probably can't, but I would give it a try.

  • I just want to close with one final thing. When we have an effect that we have studied in science, in the laboratory and we have studied it in the laboratories and we have studied it

with various kinds of techniques but typically, as in this case, it's based on a relatively small number of people who have been studied.

Progress on Point 14.12

Page 17

Some of the bigger studies have a few hundred, maybe even five or six hundred. Some of them have ten, as few as ten. Altogether thousands, not tens of thousands. It's not a big group of people. That's the way science works, at least this kind of science.

But you should be able to see an effect in the real world. I'm a scientist, and I study. I have spent my life mostly studying research in the laboratory, but I like to see effects in the real world. Then I start really believing them.

So what should we expect? Just very briefly, when we think we say lung cancer is caused by smoking cigarettes, we look in the real world. We say, "Well, people who smoke are more likely to get lung cancer." Obviously we should get that, but there are also two reasons why that might be. It could be lifestyle. It could be something else.

There's a better thing.

In the early part of the Twentieth Century, it was improper or

thought to be improper for women to smoke in the United States. Very few women

smoked. Lots of men smoked.

We should expect that there would be higher rates of lung cancer among men than among women during that period and following it. There were.

And then things changed, and women were allowed to smoke. And women started smoking in greater and greater numbers until they smoked, as many of them smoked as men. We should expect lung cancer rates among women to go up and to be equal to men. They did.

That's good. That makes us very confident if we weren't already but very confident that in the real world, smoking causes lung cancer.

In television violence; television was introduced in the United States; it was in most of the houses by about 1955. It seems like a long time ago. If television violence and television causes aggression, you should see an increase in violent crime sometime after that. It takes a while to happen.

Well we did, there was a tremendous increase in violent crime between 1965 and 1980. It

was awful.

I lived through it in New York City in the '70s.

Not nice. It was a very bad

thing.

People blamed it on television.

They could have blamed

it

on

toaster ovens or

microwaves. They were coming in. They could have blamed it on realistic things like the

police

tend

to

blame

it

on crack cocaine.

Other people, sociologists, blamed it on

unwanted children and the sexual revolution, which caused that, and all sorts of complicated factors. We don't know what caused it, lots of reasons.

Okay. So television got the rap, the bad rap. Fine. Well, the crime rate leveled off until about 1990. After 1990, we had just as much violence on television, maybe more.

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Progress on Point 14.12

We had just as much violence in the movies and more and more lurid and realistic. We had rap music with all of its violent lyrics. And we had the beginning of the enormous growth in violent video games so that virtually every male child and many male adults were playing violent video games.

The true believers not only believe that television violence is harmful but that all media violence is harmful. As far as they are concerned, there is no reason to distinguish among them. It's all harmful.

They predicted and they should have predicted that starting around 1990, crime rates, violent crime rates, would go through the roof. After all, we have all this violent media.

As you probably know, what happened is starting around 1992, crime rates in the United States fell off the roof, dropped like a stone, and dropped for the next 12-15 years. Now rates of violent crime are below what they were before television was introduced into the United States.

They hate to hear this, the true believers, because they like the other story. It went up because of television. They hate the story. They don't come to grips with it. They could probably come up with some explanation, but they don't like to hear that.

So I just say to them, to the government, the members of Congress, why do you want to restrict access to violent television now, when crime rates are lower than they were when you were growing up?

Thank you.

Moderator Thierer: Thank you, Professor Freedman.

Robin Bronk?

Ms. Bronk: Hi. Well, in the interest of full disclosure, I am not a gray haired man

(Laughter.)

 

Ms. Bronk: Nor have I written a book on the issue. And I haven't read everything on the

issue.

But what

I

am is the Executive Director

of The Creative Coalition,

as Adam

mentioned.

 

And for almost 20 years, The Creative Coalition, which is a nonprofit, nonpartisan public advocacy arm of the arts and entertainment community, has taken on this issue of protecting First Amendment and creative freedoms.

What I wanted to do was start off by paraphrasing something that the First Amendment Center put together recently with the help of Wired magazine.

Progress on Point 14.12

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Humans, us, have been grappling for centuries with fears that technology, and especially technology coupled with popular culture, will be the demise of society.

For example, in 1790, a renowned reverend said, "Romance novels and plays poison the mind and corrupt the morals of many a promising youth."

In 1909, the New York Society for the Prevention of Cruelty to Children said, "Movies have gone far to blast maidenhood. The Knights of Columbus worried that the telephone would surely break up home life." Clearly they didn't think about one of these.

"And all children who were drug addicts were inveterate comic readers," said Frederick Wertheim in 1954. And, of course, we all know that rock and roll turns young people into devil worshippers, sex fiends, and mental wrecks.

So, that being said, here we are today in a world where our children have an infinite amount of media available to them, an infinite amount of technology available to them. And everyone under 12 does know how to use this technology. And it is natural for them to use the technology.

So what do we do? We have a generation of children who have this access but aren't literate in it. And we also have a government that wants to step in because they feel, many do feel that something has to be done, that we don't have appropriate guidelines for our children, for our families, and specifically in television viewing.

And if you look historically, the government has stepped in in places where they feel like the American family needs guidance. There is the FDA, who created the food pyramid, who gives us nutrition labels. There is the SEC, who monitors banking.

But at the end of the day, the government is not taking those potato chips off of our table. They're not telling us we can't eat the potato chips. Granted, we also have this obese generation of children who are watching TV, but that is probably another issue.

What the Creative Coalition is saying and what we hope that it will be embraced by the government is that there is a need for media literacy. Just as when the Gutenberg press was developed, the literacy rates rose all across America through all classes of the citizenry. Now we have these technology tools that make media available.

But our children don't know how to read it. They don't know the difference between an infomercial and the news, between product placement and a sitcom. What is a laugh track? They just don't know.

They have this medium of television, available and everything from their telephones to their computers to the television sets in the family living room.

What we are saying is that we are asking the government to step in by funding programs that will provide media literacy, for children. To provide guidelines on how to teach the

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Progress on Point 14.12

media literacy, to get into for local governments and state governments, who do control the curricula of our schools to get involved because we do have this generation of children that does need guidance. As parents, I would venture to say that -- does anyone here know how to work a V chip? A couple of people, but certainly not the majority of us.

We need to be educated. There are tools out there. These tools of resources can be improved. There are guidelines out there. Some in many surveys say that the guidelines do work. Some say they don't understand it. Some are calling for more guidelines to be specific about the violence, how many decapitations are there.

But what needs to be done is for consumers to urge the entertainment industry to put in if better guidelines are needed, then be a consumer, be an active consumer, get involved.

It is your right as a consumer to buy a product, to watch a product. It is not the right of the government to get into the lives and the living rooms of its citizens to turn off the remote control. That is our privilege. And that is something that we should not give up.

Moderator Thierer: Thank you, Robin.

QUESTIONS AND ANSWERS

Moderator Thierer: We have plenty of time for questions. I am going to actually throw out just one or two things to get the discussion started.

I wanted to ask specifically a question of Professor Freedman because I find this discussion interesting about definition of violence, the definition of aggression. There are a lot of questions about defining things properly in this debate.

This definition of aggression and because the science is driving the policy now, this is seemingly a very important question about how do you define these things, specifically aggression. I wanted to ask you to respond to that a little bit more, and talk about how it's defined in the research. I was discussing this study with you just yesterday that I found at Iowa State about media exposure, aggression, and pro social behavior during childhood. It introduced me to this new category of "relational aggression," which is "in which relationship serves as a vehicle of harm is documented when malicious secrets, lies, or gossip are transmitted as well as intentional shunning, ignoring, or excluding or ostracizing a peer from an activity, game, or interaction."

Well, you know, my son and daughter are engaged in relational aggression on a minute by minute basis in my home!

(Laughter.)

Moderator Thierer: I don't think they're going to grow up to be mass murderers, but, I mean, there is this question about how we define these things.

Progress on Point 14.12

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Yet, the conclusion of this study is that because they see "relational aggression" in the subject of this study that they conclude that certain educational programs, such as PBS' Arthur and ABC's One Saturday Morning "suggest that relational aggression is modeled at a fairly high rate” because they say kids only see in media and in entertainment certain negative themes, like a peer being shunned or ostracized or gossiping, and they only take the bad lessons. Then that turns into relational aggression. Bingo. There's a relationship between media aggression.

So, talk us through that. Is that common or is this a unique study?

Mr. Freedman: Well, that is a unique study, but it's very difficult to measure aggression when you do a scientific study. I think at the extremes, we can tell aggression. I'm not saying we can tell it legally, but we can tell it more or less. And science can put up with some fuzzy borders.

If somebody goes out and punches someone in the face without any provocation; we would count that as an aggressive act. We wouldn't worry too much about whether that was an aggressive act or not.

But you can't allow that kind of stuff when you're observing children.

You can't let them

harm each other. You can't let them hurt each other. You can't let them get involved in

serious fights.

And if you look at adults, they aren't going to do it because, although adults can be very aggressive, they are not going to be that way when somebody is watching typically unless they are a little crazy.

So it is very hard to study this. I'm not saying it's easy, but, no one ever said science was easy. But the fact is that what people do is they throw in whatever they feel like throwing in, whether it's a bobo doll or relational aggression or anything else that they make up.

There's no standard. There are no good ways of looking at it. It's a real mess, as Bob says, the definition of violence from a legal point of view is a mess. I think the definition of violence legally is worse than the measure of aggression but both very, very difficult.

The thing is that if you are going to pass any legislation or try to pass any legislation, as I said earlier, you had better be pretty sure what the research shows.

If the worst it shows is that after watching a violent video or a violent television program, you are more likely to punch a bobo doll, I don't think we ought to pass legislation. If after watching a violent movie you go out and you beat up your best friend or your worst enemy or something and you are more likely to do that, that's serious.

But we don't get that. We never see anything like that. There is no increase in that kind of violence. So the measure of aggression is really crucial. It trivializes. Many of these effects are trivialized because the measures are so far from what we would consider

Page 22

Progress on Point 14.12

aggressive acts.

Moderator Thierer: Let me ask either you or Bob to comment on it. Both of you have had debates and discussions with folks from various medical associations, AMA, American Psychological Association, others.

What is driving this? What do they say, when you challenge them on these things, either of you because, Bob, I know you have debated some of them before as well? So you can feel free to chime in here.

Mr. Corn- Revere: I really don't want to speak for other groups, particularly those that take a different position. But there are statements on the public record -- some of them are cited in the comments we filed with the FCC -- where representatives from the American Medical Association said that they signed on to the joint agreement supporting the position that media violence leads to actual violence because it was a political compromise. And, again, I'm not trying to talk about anybody's motives or anything else, but this has become a politicized issue. People take positions for a lot of different reasons.

I would just second what Jonathan said earlier, that if you really are serious about looking at the data and what it means, you really need to look at the research itself, rather than what anyone has said about it, whether as part of an organized group for some part of a coalition or anything else.

Moderator Thierer:

Bob or Henry, a question that either of you can answer.

There is

currently court activity pending right now on the indecency front challenging the FCC's authority or the scope of its regulatory authority on that front in the Second and Third Circuits.

Bob has been active in this and I don't know how much he can comment. But, Henry, you have filed amicus briefs in both those circuits along with former FCC Commissioner Glen Robinson. We still haven't heard a decision out of the Second Circuit, although they have had oral arguments, but the Third Circuit is coming.

Do you have any comments on how that might affect this debate? Because it seems like that might be important.

Mr. Geller: I think it is important because it shows how you begin small but under political pressure from Congress, it just takes off. The Pacifica decision in 438 U.S. said that indecency complaints would be rare and that the Commission will proceed cautiously, as it has in the past.

One chairman thought that they would be as rare as Haley's Comet. It turned out that they're not rare at all. Congress struck. And even though I think that Chairman Powell had some aversion, he had strong First Amendment beliefs, he gave in to it. The present Commission has really given in to it.

Progress on Point 14.12

Page 23

The test in this field was: was it patently offensive because it described excretory or sexual activities in a manner that was patently offensive by contemporary local standards.

It has now gone way beyond that. If you use the "s" word or the "f" word, it is a violation, even though use of those words don't have any purient meaning, are not sexual activities and are not excretory. When somebody uses the "s" word and says that's what you are, he's not describing what your excretory functions are. He just thinks you're a vulgar taste in a vulgar, tasteless way. You can deplore it.

But it has kind of become now Comstockery. They're going through it. They're penalizing. As I say, the penalties can be very large.

They have drifted away entirely from the original one that we are just going to do this literally in a few egregious cases, we are going to try to deal with the shock jockeys like Howard Stern, went out of their way to do this type of thing. It went on a jazz blues PBS show just because jazz musicians use the "s" word occasionally or the other. They entered a fine.

  • I think it makes no sense.

And we're hoping the court will rein it in, really rein it in.

But it

does show what Bob was just saying. When you get political pressure, they respond to it

by going all out in these campaigns.

There is one other thing. All the indecent programming, certainly excessive violence, they all have First Amendment protection. They can have a lot of redeeming value.

Yet, in Act II it's so called, Action for Children's Television, second case, what happened was that Congress banned them entirely. There was no safe harbor 10:00 to 6:00. They just got rid of them.

Dingell was then Chairman of the Commerce Committee. He said, "This is absurd. We know they have First Amendment protection. You're voting for this. And you know what is going to happen. The courts are going to overturn it in a flash. But none of you want to be up for reelection and be told that you voted for indecency." And so they passed it, even though they knew they were just doing a worthless act. And that's it.

  • I think that why you need the First Amendment, why you need the courts to develop this

strict scrutiny, least alternative, all these other things that sound so technical, you need it because you are dealing with speech, the First Amendment is the crown jewel of America, and that if you don't have that kind of protection using strict scrutiny and the alternative method has to be taken if it will avoid the governmental regulation. If you don't have these as bulwarks; you will get the political pressure. It will be out there. It will not serve the commonwealth at all.

Moderator Thierer: We are going to go to some questions unless Robin has anything you want to add before I go. Okay.

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Progress on Point 14.12

Please wait until the microphone comes to you. Clearly identify yourself and have a question ready. It will take just one second. We will go up here first. The mic will come to you. Please, again, state your nane and affiliation.

Mr. Nadel: My name is Mark Nadel. I am just speaking for myself. I have a question for Jonathan.

  • I appreciate your frustration with getting your research rejected without any explanation of

what's wrong with the analysis. Certainly a conclusory statement isn't going to convince

you or convince anybody that what you said was wrong.

By the same token, though, intuitively I have the belief that my four year old mimics things that he sees and that if he sees violence on television, I would think that he would be more inclined to mimic that.

Can you help me understand why that is not true? I accept that the data shows it's not true, but it's hard to accept that without an explanation to help me overcome that intuition.

Mr. Freedman: Yes. It's a good question. And I think most people start with the intuition that you do. And I can't tell you in any definitive way because I don't know, but one of the points that those who believe in this often make is that people watch violence on television and they learn to behave that way because they say, "Well, that's what other people do." And they see it being rewarded, and they see other people behaving violently. And so that's what they do.

The alternative way of looking at it is in almost all programs on television, particularly on television, it's the bad guys who start the fight. The good guys who answer it are usually not just civilians but they're Batman or Power Rangers or police or some group in society that is meant to protect society.

And in the end of the program, the people who started the fight lose. You could argue, I'm not saying this is right, but you could argue that what children learn is, "I had better not start a fight because I am going to lose."

  • I am not saying that is the right explanation, but it's a possible explanation.

Mr. Corn- Revere: If I could just add one thing to that?

Moderator Thierer: Sure.

Mr. Corn- Revere: I think it's difficult to extrapolate from the kind of experience that you discussed. My experience tells me that the sun moves around the Earth. I stand here, and

  • I look up, and I see that he sun moves across the sky. But science tells me that's not true. That's because, investigation other than just my own experience is important to resolve those matters. I think the same is true here. It makes sense to read the studies, read the research.

Progress on Point 14.12

Page 25

Moderator Thierer: Stephen Balkam up here.

Mr. Balkam: Stephen Balkam with the Family Online Safety Institute.

Not to beat up on you, Jonathan, but I just wanted to play devil's advocate for a second. I am familiar with Dr. Donald Roberts' work at Stanford University. And his view was the copycat behavior of violence after watching television was one and probably the least of the two other reactions that he identified.

The second was a sense of foreboding. The world is a scary place. I feel like I could be a victim. I've got to stay indoors. I'm afraid.

The third, which he thought was most prevalent and actually probably the most pervasive and, therefore, the most dangerous was a kind of desensitization to violence, a kind of a "So what?” So there is a loss of empathy, a loss of compassion for fellow man and all that kind of stuff. Could you comment on that?

Mr. Freedman: Why, sure. The notion of a scary world, which George Gerbner started a long time ago, has actually not stood up. There's no evidence that children who watch a lot of violent television think the world is scarier than those who watch less.

If they watch the news, they might think that but not fictional. I mean, you know, you don't have to watch Arthur to think the world is dangerous.

(Laughter.)

Mr. Freedman: Arthur, the aardvark, never gets hurt. But other people do in the real world. I don't think you need television to think the world is scary, but, in fact, the evidence George Gerbner did a fair amount of research and argued for this. I think virtually everyone now agrees that that is not the case, maybe not everyone.

The notion of desensitization goes way back. The suggestion is, “well, you see so much violence and then it doesn't matter anymore.”

There really is no evidence for that. Admittedly, very few studies even look at it. It's very hard to look at. There are a couple of studies that had a slight suggestion that people, kids who saw a violent fight, took three seconds or four seconds longer to call an adult when some real people were fighting. That may be true, but that didn't replicate.

There are some studies that look at it in a larger scale. Belson did a huge study in England, where he looked at 700-800, teenagers and looked at their exposure to media

violence and their desensitization. concerned.

And they were

not less sensitive

and

not

less

I think what happens is -- and maybe this is why people keep saying this -- If you watch a

Page 26

Progress on Point 14.12

lot of television violence or movie violence or any kind of violence, you do get desensitized to television violence or movie violence.

What was shocking 20 years ago is nothing these days. So, there is what we call more habituation. Like with anything else, you get used to it.

Like the so called dirty words, when we first heard them on television, you know, "f's" and "s" and those things, unbelievable. Now you do hear them on television, and you hear them in the movies. And it's not as big a shock. You get used to it.

But that's very different from; the violence part of it is very different from, saying, "Well, I've seen a lot of violence. I've seen 8,000 murders this year." You go outside, and there was a murder, "Oh, that was nothing. I've seen 8,001 murders now."

(Laughter.)

Mr. Freedman: There's no evidence that kids who have been exposed to television or that the generation that was raised on zillions of murders and zillions of fights are less concerned about violence.

I make the case that the first really anti war generation in recent years there was an anti war generation for other wars also, but the Vietnam War generation was the first generation that was raised on television. Not everyone was against the war, but they were pretty anti war.

This is not science. This is anecdote because you can't conclude too much from that. I can say that the desensitization step is not there. It's there even less than the aggression if that's possible.

Moderator Thierer: There's a question back here. Please state your name.

Mr. Milliken: Al Milliken affiliated with Washington Independent Writers.

Do any of you know of research being done outside of the United States in America? was curious what we know about televised violence and its impact in other cultures and countries?

I

For example, since Al Jazeera broadcasts show more graphic details, particularly of aftereffects of violence, do we have any way of drawing comparisons or knowing what researchers are saying in other parts of the world?

Mr. Freedman: I don't want to monopolize this, but I guess that is a question for me. Let's distinguish between coverage of real violence and war scenes and that kind of stuff.

I don't know what the effect of that is, but there have been studies in other countries. There was a study done, cross national study, in six countries, the United States and then

Progress on Point 14.12

Page 27

four European countries and Israel. That got very disappointing results for those who believe in the negative effect of violence.

In fact, the Dutch psychologists, who probably did the most careful job -- maybe that's a value judgment -- concluded that there wasn't a shred of evidence that television violence had any effect on aggression. They stated that so clearly and so boldly that they weren't allowed to publish their chapter in the book that covered this because the true believers thought that they were being a little too straight perhaps.

So the answer really is we don't know much, but you can say that Japan traditionally has had the most violent television, fictionalized television, that we are familiar with. And they have an infinitesimal crime rate, even compared to nowadays, in the United States. So it's hard to tell.

Moderator Thierer:

microphone.

Is there a question? Over here in this corner. Please wait for the

PARTICIPANT: I just wanted to know did you say bobo doll? What was the bobo doll?

PARTICIPANT: Yes. It's bobo doll.

PARTICIPANT: Oh, bobo?

Moderator Thierer: Bobo, b-o-b-o. That's what you wanted to know?

PARTICIPANT: Well, that

Moderator Thierer: Yes.

Mr. Freedman: They are actually called bozo with a “z” in England. That's the same doll.

Moderator Thierer: Okay. We have a microphone over here. I'm sorry. Wait for that microphone. Thank you.

Ms. Lee:

Hi.

My name is (inaudible) Lee.

Good afternoon.

I'm with Concerned Women for America.

I wanted to bring the discussion back to cable choice if I could. Mr. Geller and Ms. Bronk talked about the V chip and its use as a parental tool. We feel as an organization that cable choice is the same idea, putting just another tool at parents' disposal for the regulation of what comes into their home and also what they pay for.

It's really just a free market solution. Having a voice is an active consumer of which shows you want your kids to watch and which channels you want to pay for.

CWA actually did a Wirthlin poll in 2004. And 80 percent of our 1,000 respondents believe

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that cable choice was a fair option in programming, even if they said that they wouldn't pay for the cable choice programming themselves. I was wondering if you guys had any comments on that.

Moderator Thierer: The a la carte regulation that she is talking about is the idea of channel by channel -- breaking up the channels, requiring that they be sold individually, the FCC requiring

Mr. Geller: I would love to have a la carte because I only watch a very few channels. It would be a bargain. I understand Consumers' Union and the other push to have it.

If you look at it strictly as a regulatory matter, there are arguments on both sides of it. The cable industry has a very cogent argument that they have developed all of these channels to get this enormous diversity of 90-100 because they have not done a la carte but put them altogether, that if you have Black Entertainment standing alone and Home and Garden and Food Channel and so on, they won't make it.

I don't know.

That's a marketplace argument that I'm not in a position to evaluate.

It is

one that Senator McCain and others have brought up.

Leave aside that. It's an entirely different issue. I've often wondered why somebody doesn't incidentally try to offer just a few channels. Telcos have come in, and they're offering the whole amount.

Broadcast, one last thing, because it has 19.4 megabits per second, some broadcasters thought of offering just about 20 channels on a very cheap basis, subscription pay TV on maybe about 12 megabits per second, never came off. What I'm saying is there has been no marketplace solution here the way there has in Canada, in Hong Kong and in other places.

When you look at it in terms of the argument we are having today that it's a solution to the patently offensive, I don't see that at all. I don't see why it would be in any way.

Everybody takes the broadcast channels and then takes whatever else they want, five or six. The broadcast channels have violence on it. It wouldn't touch them.

  • I mentioned the History Channel.

You wouldn't want to eliminate that.

You just want to

see it at times. I don't see at all why it's being advanced as a solution. The final thing I

would say to it is you run in again to the Playboy decision.

If you have a less restrictive way of proceeding, namely that the cable subscriber can opt out or can use a set top box or whatever, then you can't go around turning the cable industry upside down for that purpose. That purpose namely to get at excessive violence, however you define it, can be accomplished through this less restrictive manner.

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Martin, several times. It may or may not be something to be done on the merits of price regulation, but it has nothing to do with violence.

Moderator Thierer: Robin or Bob, do you want to comment?

Ms. Bronk: Yes. I was going to say, getting back to your point of consumerism; as consumers, we all have an incredible power. Bigger than the government and bigger than anything else, we have the power to demand that programming be changed.

We have the power to demand that there be less violence, that there be less "offensive" programming. One of the most perfect recent examples is what happened to Don Imus. It was not a First Amendment issue. It was a business issue. It was a show business issue where consumers spoke, sponsors pulled, and the show was canceled. That was a perfect example of consumers and citizens using their power to change programming.

Moderator Thierer: Bob, anything on a la carte?

Mr. Corn- Revere:

Yes.

I would just add that a la carte is a proposed solution that is

remarkably unsuited to the issue of the violence report. I was struck that it was added to

the Report because it really has little or nothing to do with the issue of televised violence. But it has been a favorite proposal put forward by the Chairman with respect to the marketplace issue.

As Henry mentioned, the GAO has studied the matter twice and has concluded that there would be less diversity on cable channels than previously existed. But I would dispute your characterization of a la carte as a “marketplace solution.” It is a marketplace solution only if the marketplace adopts a la carte on its own. It's not a marketplace solution if the government mandates it.

And as the proposals for a la carte have evolved, starting with Senator McCain's proposals for it as a form of price regulation, to become a proposal as a form of content regulation, any justification that policy makers would use to get to an a la carte mandate, if they were to be enacted as an FCC rule or to legislate, would be expressly content based. They would have very high constitutional hurdles to overcome based on that justification.

But beyond that, a la carte is really unsuited to regulating violence because violence is a program-by-program, or scene-by-scene issue. It is not a network-by-network issue. I think Commissioner Adelstein really summed that up in his separate statement in the Violence Report, where he wrote that "The History Channel, for example, sometimes broadcasts were seen as far too violent for young children, but dropping it would deprive them of the valuable educational content that it provides. TV violence is not viewed in the record as a channel by channel problem."

He concludes, "I suppose a parent could choose to receive only Home and Garden Television and the Food Channel to avoid violent programming since there are so few other channels devoid of violence, but I do not see how that helps parents much."

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Moderator Thierer: I will just add one other thing, that there have been quite a few filings by various family groups and various types of minority groups and others who provide minority based, female-oriented, family friendly programming on cable and satellite television.

I cannot find one that supports the idea of a la carte as giving them a greater platform. In fact, they all agree that it would destroy the diversity of the wonderful 500 channel diversity of programming we have, which includes all of that great family friendly fare.

We have time for just one last question before we hit the end of the hour. Make?

Jonathan

Mr. Make: Hi. A question for any or all of the panelists just to talk about the legislative outlook for action on the FCC report.

Moderator Thierer: Anyone on that one? We should note that there was a hearing scheduled for yesterday that has now been rescheduled for June 26th. So there is action pending there and, of course, legislation likely to be introduced before then. Legislation was introduced last session by Senator Rockefeller, S. 616, which I have a paper over there if you would like to read my analysis of. 2

Does anybody have any comments about how this is likely to play out?

Mr. Geller: I already indicated that if you get it to the floor, nobody is going to vote against getting rid of excessive violence. It will be just like the indecent episode. I would suspect it will go through if it does reach the floor.

If it is knocked off, it will be knocked off in Committee because some people start looking at the Supreme Court decisions like Playboy and others and decide that this is a trip we shouldn't take, particularly as we move toward digital and toward the internet being so important and software solutions.

That is my prediction. You get it on the floor, they will vote for it.

Moderator Thierer: Anyone else on that one?

Ms. Bronk: I was just going to say that one of the things that the Creative Coalition is doing with Capital Hill and with a group called Safety for Kids is that we are holding a summit on media literacy. It will be on June 5th here on Capital Hill. We have a lot of participation from both sides of the aisle of Congress.

You know what? I don't think either side of the aisle wants to legislate what is violent and

2 Adam Thierer, “Thinking Seriously about Cable and Satellite Censorship: An Informal Analysis of S. 616, The Rockefeller-Hutchison Bill,” Progress & Freedom Foundation Progress on Point no. 12.5, April 2005,

www.pff.org/issues-pubs/pops/pop12.6cablecensorship.pdf;

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what is not, what is appropriate and what is not.

I think everyone is in agreement, whether it's policy makers, the providers of entertainment. We are in a situation where we do need guidelines and we do need to be educated. We need to learn how to use the guidelines. I think also that the last resort would be to have some type of government intervention telling us what is appropriate and what is not.

Moderator Thierer: Well, thank you, Robin.

PARTICIPANT: There's one thing. What I think they may get around it is to vote for a study. A study doesn't do anything but shows that they are concerned.

(Laughter.)

Moderator Thierer: Well, that is going to have to be the last word. I encourage you all to visit the pff.org Web site if you would like more material on this or an archived audiotape of this event. Please join me in thanking our wonderful panelists today.

(Applause.)

(Whereupon, the foregoing matter was concluded.)

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Speaker Biographies

Robin Bronk is Executive Director of The Creative Coalition, a leading nonprofit, nonpartisan social and political advocacy organization of the arts and entertainment industry. She is dedicated to educating and mobilizing the arts community on issues of public importance, particularly the First Amendment, arts advocacy and public education. Prior to joining TCC in 1998, Robin served as Vice President, Corporate Community Strategies for APCO Associates, Inc., a worldwide public affairs firm. She also worked for ABC News, serving as a program coordinator for a weekly education series that aired on C-SPAN and worked as a program instructor of the Close Up Foundation. Robin serves on the New York Cultural Task Force, is a board member of The White House Project and Young Playwrights Inc. She has won numerous awards and honors for her public affairs work. Robin received her Bachelor of Arts from Pennsylvania State University and is a native of Clemson, South Carolina.

Robert Corn-Revere is a Partner in the Washington, D.C. office of Davis Wright Tremaine, where he specializes not only in First Amendment law, but in all facets of Internet, media and communications law. He writes extensively on these issues and has provided expert testimony before various congressional committees and the FCC. He is co-author of a three-volume treatise entitled Modern Communications Law and is editor and co-author of the book, Rationales & Rationalizations, published in 1997. In 2003, he successfully petitioned Governor George E. Pataki to grant the first posthumous pardon in New York history to the late comedian Lenny Bruce. He also argued the case of United States v. Playboy Entertainment Group, Inc., in which the United States Supreme Court struck down Section 505 of the Telecommunications Act of 1996 as a violation of the First Amendment.

Jonathan Freedman is Vice-President of the University of Toronto and Principal of the University of Toronto, Scarborough. He grew up in New York City and received a B.A. from Harvard University and a PhD in social psychology from Yale University. He taught at Stanford University and Columbia University before moving to the University of Toronto to become chair of the psychology department. He has studied various topics in social psychology, mostly dealing with social influence theories. He first reviewed the effect of television violence on aggression in 1984 and more recently published a book on that topic in 2002 entitled Media Violence and its Effect on Aggression: Assessing the Scientific Evidence (University of Toronto Press, 2002).

Henry Geller was General Counsel of the FCC in 1964-1970 and special assistant to the Chairman (1970-1973). Upon leaving the FCC, he was associated with the Rand Corporation and the Aspen Institute until 1978 when he became Assistant Secretary of Commerce for Communications and Information (and NTIA Administrator) in the Carter Administration. In 1981 he became the Director of the Washington Center for Public Policy Research of Duke University. From 1989 to the end of 1998, when he retired, he was a Communications Fellow at the Markle Foundation.

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Adam Thierer is a Senior Fellow and the Director of PFF's Center for Digital Media Freedom (CDMF). Prior to joining PFF in 2005, Adam spent four years at the Cato Institute as Director of Telecommunications Studies, and nine years at The Heritage Foundation as a Fellow in Economic Policy. He has been featured in The Wall Street Journal, The Washington Post, The New York Times, Investors Business Daily, Forbes, The Economist, Newsweek, and many other publications. Adam is the author or editor of five books on diverse topics such as intellectual property, mass media regulation, Internet governance and jurisdiction, regulation of network industries, and the role of federalism within high-technology markets. Thierer earned his B.A. in journalism and political science at Indiana University, and received his M.A. in international business management and trade theory at the University of Maryland.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. Its mission is to educate policymakers, opinion leaders and the public about issues associated with technological change, based on a philosophy of limited government, free markets and civil liberties. The Foundation disseminates the results of its work through books, studies, seminars, conferences and electronic media of all forms. Established in 1993, it is a private, non-profit, non- partisan organization supported by tax-deductible donations from corporations, foundations and individuals. PFF does not engage in lobbying activities or take positions on legislation. The views expressed here are those of the authors, and do not necessarily represent the views of the Foundation, its Board of Directors, officers or staff.

The Progress & Freedom Foundation 1444 Eye Street, NW Suite 500 Washington, DC 20005 voice: 202/289-8928 fax: 202/289-6079 e-mail: mail@pff.org web: www.pff.org