Kids ads: To regulate or not?

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In the wake of the shootings at Columbine High School, President Clinton requested that the Federal Trade Commission look into how violent entertainment is marketed to children. Not surprisingly, the recently released report concluded children are exposed to marketing for violent entertainment on a regular basis.

What seems to have surprised and angered many politicians is the commission's conclusion that many companies in the movie, recording and videogame industries "routinely target" children as the audience for violent entertainment that their own ratings or labeling system indicate may be inappropriate for children.

This apparent inconsistency has lead many politicians, including Democratic presidential nominee Al Gore, to threaten regulation of the entertainment industry if the industry does not do a better job of regulating itself.

FTC Chairman Robert Pitofsky stated he is also studying the possibility of bringing a deceptive advertising action to curtail marketing of violent entertainment to children, explaining it is deceptive or unfair for companies to market their products in a way that is inconsistent with their own ratings. South Carolina Attorney General Charlie Condon went even further, threatening litigation against the industries, stating that the FTC report was the "smoking gun" that would support lawsuits similar to those filed against the tobacco industry in recent years.


In this instance, self-regulation is clearly the best response.

The FTC report recommended that the three entertainment industries should adopt regulations that prohibit target marketing to children, increase compliance with ratings systems at the retail level and increase parental understanding of the ratings and labels. In particular, the report recommended prohibiting advertising of violent, adult entertainment in media with a "substantial" (35% or more) under-17 audience.

The prospect of government regulation within the entertainment industry immediately raises serious First Amendment concerns. Although no one has proposed regulating the artistic content of movies, music and videogames, regulations governing advertising for these products would likely be an impermissible restriction on commercial speech nevertheless. The U.S. Supreme Court held in Central Hudson Gas & Electric Corp. v. Public Service Commission that commercial speech regarding lawful activity which is not misleading may only be regulated when the government can show a "substantial interest" in regulating the speech and that the regulations directly advance this interest in a way that is not more extensive than necessary. Therefore, in order for prohibitions on advertising for violent entertainment to be approved by the Supreme Court, the government would need to establish that media violence is the cause of some harm and that the regulation of advertising solves this problem. However, even the FTC acknowledged in its report that media violence has not been proven to be an important factor, much less the sole cause, in contributing to youth aggression and violence.


Even if the government could establish a substantial interest in regulating advertising for violent entertainment, the First Amendment would only permit regulations that are "narrowly tailored" to addressing the problem of youth aggression and violence. This would be a problem for lawmakers, who would need to write regulations that specifically identify what constitutes violent entertainment that is inappropriate for children -- an impossible task given the fact that violence which may be inappropriate for one child may be perfectly appropriate for a child of a different age or maturity level.

Moreover, it is not clear how such regulations would define what constitutes advertising to children because nearly every marketing channel has audiences that are comprised of both children and adults. A similar problem led the Supreme Court to conclude in Reno v. the ACLU that the Communications Decency Act of 1996 violated the First Amendment. That act attempted to prohibit the transmission of "obscene or indecent" material over the Internet. The Supreme Court noted this language was too vague as it could potentially be interpreted to include beneficial speech, such as discussions about birth control, which was not intended to be the target of the act.


As for potential litigation, it is not clear that there is any basis to conclude that the marketing practices of the entertainment industry are false and deceptive merely because companies advertise R-rated movies and other violent media to audiences that include children. The ratings systems are designed to alert parents that they should review certain material to determine whether it contains inappropriate material for their children. Advertising to audiences that include children is not inconsistent with this purpose, nor does it mislead anyone with respect to the content of the movie.

And, although the FTC report may be accurate with respect to the industry practice of marketing violent entertainment to children, it is not a "smoking gun" that establishes that violent entertainment is actually the cause of any damages that would provide the basis for a civil lawsuit.

Nevertheless, several companies, including major players like Wal-Mart Stores, Kmart Corp., Twentieth Century Fox Film Corp. and Walt Disney Co. have already announced policy changes that attempt to address at least some of these recommendations. In addition, Jack Valenti, president of the Motion Picture Association of America, recently announced his industry's response to the report, which included 12 new voluntary guidelines, including a general prohibition on "inappropriately specifically targeting children."


Congress has been critical of these proposals, arguing that they are full of loopholes and do not go far enough. But studio executives have stressed the need for flexibility to advertise certain violent movies that may be of value to teens and cite "Amistad" and "Saving Private Ryan" as examples of such movies.

In the end, improved self-regulation is the only practical way to address the issues raised by the report because proper regulation necessarily involves subjective determinations regarding what is appropriate entertainment for children. Certain movies probably should not be targeted at children and the entertainment industry may need to do a better job of providing parents with the information they need to make decisions about what their children should see and hear. However, reactionary government regulation of industry advertising is unwarranted at this time and is simply too significant an imposition on freedom of speech to be justified.

Mr. Durchslag, an attorney specializing in advertising, marketing and promotional matters, is head of the intellectual property department of Winston & Strawn, Chicago.

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