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June 26, 2007
Dennis Wharton
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Oral Testimony of Laurence Tribe Before Senate Commerce Committee

WASHINGTON, DC – - Laurence Tribe, a professor of constitutional law at Harvard Law School, is testifying today before the Senate Commerce Committee on behalf of the National Association of Broadcasters, the National Cable & Telecommunications Association, the Motion Picture Association of America and the four broadcast networks: ABC, CBS, Fox and NBC. The following is a synopsis of proposed testimony of Prof. Tribe:

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Mr. Chairman and distinguished members of the Committee, thank you for the opportunity to explain my conclusions about the constitutionality of the FCC's proposals for Congress to regulate violent television programming. Although I certainly agree that parents have legitimate concerns about the television that their children watch, in my view the First Amendment forbids centralized governmental controls of the sort the FCC suggests.

This is not to say that Congress is powerless. Congress may of course respond to violence on television by implementing more individually focused, narrowly tailored and far less restrictive alternatives designed to help parents supervise their children's television watching, such as V-chip-like devices and publicity campaigns for the wide range of private solutions that are now available. I have submitted written testimony discussing the Supreme Court precedents that underpin my oral testimony, and I ask that it be made a part of the record.

At the outset, I would stress that the First Amendment fully protects depictions of violence on television. Winters v. New York (1948). Such depictions have always been integral to honest and effective expression, whether in news and documentaries or in entertainment, and whether on television or in other media, such as books, plays, and movies. As a result, regulation of such depictions is subject to strict First Amendment scrutiny, the most stringent test that the Supreme Court applies to evaluate government action.

Any attempt to impose centralized control over depictions of violence on television - whether through time channeling, mandatory ratings, or mandatory unbundling, all of which the FCC suggests - suffers from several independently fatal constitutional defects that the Supreme Court has consistently recognized as invalidating legislative regulations of speech.

First, any centralized regulation in this field will be unconstitutionally vague. Excessive vagueness is fatal to any law, but the risk of "chilling" protected speech has resulted in an especially stringent standard for the unacceptable vagueness of laws regulating speech. Grayned v. City of Rockford (1972).

Vagueness is unavoidable here because no one would recommend prohibiting all depictions of violence - but the line between "permissibly violent" and "impermissibly violent" depictions necessarily relies on criteria whose application would be highly subjective and which lack historically established legal meaning. ,Gentile v. State Bar of Nevada (1991); Interstate Circuit, Inc. v. City of Dallas (1968). Is the physical interrogation of a terrorist on "24" "patently offensive"? Is the depiction of the Normandy invasion in "Saving Private Ryan" "excessive"? Is a football game too "intense" or "rough"? People of "ordinary intelligence" will necessarily disagree about the application of these terms to particular examples, and their use will give regulators boundless discretion in enforcing the law.

Second, regulation of television violence must of necessity discriminate impermissibly on the basis of viewpoint. Regulation of televised violence invariably stems from concerns about what such depictions say about violence and what attitudes toward violence the depictions convey - e.g., whether they express approval (as when police violently subdue a dangerous suspect) or condemnation (as when a criminal beats up an innocent victim). But the First Amendment prohibits regulation based on the viewpoint expressed by speech. RAV v. City of St. Paul (1992).

Third, regulation of television violence will be overinclusive. Ashcroft v. Free Speech Coalition (2002). In attempting to protect children, Congress will inevitably prevent adults and older children from seeing depictions of violence that they are constitutionally entitled to see - e.g., by relegating all content that is supposedly too violent - or even all arguably violent content - to the time slot between 10 p.m. and 6 a.m.

In addition, Congress may very well end up controlling the speech of those who neither create nor distribute depictions of violence - such as by requiring them to go through a mandatory ratings process - in order to cast a net wide enough to "catch" overly violent materials. The First Amendment prohibits Congress from overreaching in this manner. Butler v. Michigan (1957).

Fourth, even if proponents of government control in this context were right about the effects of television violence on children, regulations addressing those effects would be self-defeating and too ineffectual to pass constitutional muster. A regulation of speech must "advance[] its asserted interests in [a] direct and material way." Edenfield v. Fane (1993).

Regulating televised violence would fail this requirement because proponents' asserted goals are internally inconsistent and sometimes flatly at odds. Attempts to address some of them - like protecting children from frighteningly realistic depictions of violent behavior - will frustrate others - like preventing violence from being depicted in cartoonish ways that make it seem like harmless fun. And any restriction of television violence that exempts contexts like news or sports - in order to protect the most obviously important speech - will leave in place whatever harmful effects the proponents imagine they can prevent. Rubin v. Coors Brewing Co. (1995).

Fifth, centralized regulation of television violence is not the least restrictive means of serving the government's ends. The First Amendment does not allow the government to burden speech when a less restrictive alternative exists. Reno v. ACLU (1997). Many alternatives now empower parents to control what their children see on television - from the V-chip to time-shifting technologies to private ratings systems - and the Supreme Court has treated these measures as less restrictive alternatives that must be used in preference to centralized regulations such as time channeling and unbundling. See, e.g., United States v. Playboy Entertainment Group (2000); Denver Area Telecommunications Consortium v. FCC (1996).

By empowering parents rather than the government, these alternatives fit more naturally into the First Amendment's preferred means of protecting the household from unwanted speech: namely, individual choice. Compare Rowan v. Post Off. Dep't (1970), with Bolger v. Youngs Drug Prods. Corp. (1983).

The FCC's attempts to avoid the First Amendment problems of regulating television violence are unavailing. First, the FCC asserts that depictions of violence are analogous to indecency and obscenity, both of which it says can be regulated without worrying about the First Amendment. But the analogy to indecency gets the FCC nowhere because regulation of indecency is subject to strict scrutiny. Reno v. ACLU (1997). And the analogy to obscenity fails as well: obscenity covers sex and sex only, and the Supreme Court has insisted that this definition not be expanded, so as not to erode the scope of the First Amendment. RAV v. City of St. Paul (1992). Indeed, allowing restrictions on television violence because it is like obscenity (as the FCC suggests) would permit restrictions on an enormous amount of speech that resembles obscenity every bit as much.

Second, the FCC asserts that regulations of speech intended to protect minors may be more leniently reviewed by the courts. This is incorrect as a legal matter: types of regulation that are otherwise subject to strict scrutiny must meet the same stringent standards even when designed to protect minors. Contrast Ginsberg v. New York (1968). But more importantly, the FCC errs by thinking that children's special malleability argues for, rather than against, centralized government control. Wisconsin v. Yoder (1972); Meyer v. Nebraska (1923).

Third, the FCC asserts that Congress has more power to regulate broadcast media. But types of regulation that are otherwise subject to strict scrutiny must meet the same stringent standards even as applied to broadcast. The case law establishing otherwise - Red Lion v. FCC (1969), and FCC v. Pacifica Foundation (1978) - has been overtaken by events, as broadcast has become ever less distinguishable from other media (e.g., through the expansion of blocking technologies), and as the all media have become more diverse and accessible.

Finally, the FCC criticizes existing alternatives for being ineffective. But at best, the FCC's criticisms tend to show that children are seeing things the government might prefer they not see - not that parents who are determined to control what their children watch are unable to do so.

The FCC also inexplicably ignores many of the most effective alternatives now available in the marketplace. And its criticisms erroneously assume that a less restrictive alternative must be fully effective in order to be constitutionally decisive. Sable Communication, Inc. v. FCC (1989).

Applying the above analysis, the FCC's three proposals would be unconstitutional if implemented by Congress. Time channeling would be unconstitutional because it is vague, over inclusive, and too restrictive. United States v. Playboy Entertainment Group (2000).

A mandatory ratings system would be unconstitutional because the standards for imposing ratings would be impermissibly vague and because a centralized rating system would impermissibly compel speech. Interstate Circuit, Inc. v. Dallas (1968); Rumsfeld v. FAIR (2006). And mandatory unbundling of cable/satellite channels - to the extent that it is even a response to television violence at all, given its manifest ineffectiveness at addressing such content - would be unconstitutional as well.

Cable/satellite operators' editorial decision to "bundle" channels for distribution purposes - like content providers' provision of such bundles - is constitutionally protected speech indistinguishable from newspapers' bundling of sections and authors' bundling of essays or short stories. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995). And the fact that cable/satellite operators and content providers engage in bundling to make profits does not diminish the constitutional protection applicable to their decision to do so. See United States v. National Treasury Employees Union (1995); Simon & Schuster, Inc. v. Members of New York State Crime Victims (1991); New York Times v. Sullivan (1964).

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