Appealing Our Free-Speech Sentence

Introduction

What shapes the attitudes and personalities of young people growing up today? Everyone knows the answer. The overwhelmingly dominant influence in our society is media entertainment -- TV, movies, music, video games.

TV in particular is so pervasive, we can fairly say it represents a major influence in the socialization of the young. TV is the earliest source for learning about social mores. Its scenes run through the tapestry of life experience. If a situation happens to summon an experience from memory for any reason, it will often be one that was lived vicariously before the TV screen. TV sets the expected patterns of conduct in every social situation, and if a young person is emulating anyone, it is liable to be a TV character.

Just as we have a physical environment, we also have a cultural environment -- and it has been transformed by the advent of TV in the last several decades. For the first time since modern man evolved 200,000 years ago, an important segment of the social world is populated by members of what is essentially an alien species.

In what ways are TV people different from natural people? They are, of course, invented constructs as opposed to natural persons. More importantly, TV people are corporate products, their creation driven by corporate interests. Corporate interests largely revolve around profit, which is generally recognized as a good thing. The profit motive is a force that has brought material prosperity to the masses of the world’s developed nations. However, most people who have reflected seriously on such matters understand that the profit motive does not unerringly steer capitalists to do what is best for society.

Created for profit, TV people and their movie cousins are considerably more focussed than typical humans. They appear in human form, usually with a pleasing aspect, but every gesture is contrived, every quip a result of sober calculation. Where humans can be spontaneous, artless, confiding, their potent imitators only affect these qualities, fixated always on practical objectives.

Ironically, it is one of them -- a character from a popular movie -- who best portrays for us the distinctively artificial nature of the alien beings who crowd our social landscape:

That business pursues profit need not be a threatening state of affairs. But like robots (or cyborgs), business must be properly channelled to serve people. If profit entails clear and palpable social harm, that is what business will pursue. Individuals within the corporation who resist the preeminent profit goal tend either to be ejected, or to lead their firms to defeat at the hands of less conscientious competitors.

Public-spirited exhortations to corporate leaders suffer from a certain obliviousness to this plain reality. While altruism is always laudable, we cannot rely on corporations to sacrifice their interests in the name of the public interest. The rationale for capitalism is that self-interest and the profit motive are closely synonymous with the public good. It is the duty of enlightened government to make it so.

In the physical sphere, the necessity of regulation is seen as self-evident. Pollution emissions are restricted, safety regulations are enforced, monopoly is curtailed (to some extent).

Vying for Eyeball Share

But in the realm of culture, corporate activities are almost totally unrestricted -- even though scientific studies confirm the plain sense of anyone who reflects on the entertainment industry, that much of its emissions are toxic. This is the unsurprising consequence of the profit motive, left almost completely unchecked by regulation of any kind. As many observers have noted, the quest for viewer share leads to ever escalating levels of violence, vulgarity and offensiveness, as programmers vie to entice and titillate increasingly jaded audiences.

Consumer Manipulation

Attracting viewers is not the sole motive driving the creation of media content. In this age of intertwined corporate interests, there is also a motive to generate demand for products unrelated to entertainment. Product placement -- the appearance of real-world brands in fictional settings -- is by now a well-known feature of movies. Beyond simply promoting a desire for a product, it is also consistent with corporate incentives to encourage the sense that certain products are indispensable, and in general to promote an avid materialism that clashes with our common values.

Ideological Manipulation

The media watch organization Fairness & Accuracy In Reporting (FAIR) aptly describes one of the modern threats to democracy that has been much commented upon, that posed by the concentration of ownership in the news media:

Almost all media that reach a large audience in the United States are owned by for-profit corporations -- institutions that by law are obligated to put the profits of their investors ahead of all other considerations. The goal of maximizing profits is often in conflict with the practice of responsible journalism.

Not only are most major media owned by corporations, these companies are becoming larger and fewer in number as the biggest ones absorb their rivals. This concentration of ownership ... puts great power in the hands of a few companies. As news outlets fall into the hands of large conglomerates with holdings in many industries, conflicts of interest inevitably interfere with newsgathering.

FAIR’s position seems to be the only one an objective consideration of the issue could produce: democracy depends upon unbiased news, and the integrity of the news is inconsistent with concentrated ownership. FAIR’s call for structural reform of the media industry to break up the dominant conglomerates seems inarguable. (Barring affiliations between news and non-news businesses would also be desirable.)

But democractic processes can be influenced by the messages transmitted in our entertainment as well as by news distortion.

It is a paradox of U.S. political culture that popular sentiment is often congruent not with the interests of the general public, but with those of economic elites. This is reflected by a Congressional debate on June 9, 2000, following which the House of Representatives voted 279 to 136 to repeal the federal estate tax, even though only 2% of estates surpass the threshhold at which taxation begins.

Another recent example is the government’s antitrust suit against Microsoft. A substantial portion of public opinion sided with Microsoft against the government, despite substantial abuses of monopoly power that were obviously harmful to the public interest.

Still another example is the issue of marginal tax rates for high income earners. A prevailing assumption in public discussions of the issue is that the work incentives of high income earners are intimately linked to tax rates, and that upwards adjustments would harm the economy by driving them to abandon or reduce their participation in favor of leisure. If not implausible, this is at least questionable.

Some of these attitudes can be explained by apathy or confusion, and some by America’s renowned business optimism -- many more people expecting to board the wealth train than actually hold tickets. But the phenomenon also brings to mind the potential power of the media to promote political attitudes and ideologies that benefit primarily elites.

The media’s power has already been used to modify public attitudes. Over 100 TV shows, including ER, Chicago Hope and Beverly Hills, 90210, have conveyed undeclared antidrug messages, inserted in response to financial incentives offered by the government to the major broadcast networks. (See “White House rewarded networks for antidrug messages in TV scripts,” The Philadelphia Inquirer, Jan. 14, 2000.)

The Scene at the Front

New Yorker columnist David Denby offers many telling observations from a parent in a 1996 essay (“Buried Alive,” July 15, 1996) decrying the “avalanche of crud” affecting his two sons. A typical weekend day for his 13-year-old and his friends suggests the degree of immersion:

When Max is at home on a Saturday, or on vacation, he may hit the computer as soon as he gets up, ignoring repeated entreaties to eat breakfast, and finally ignoring bowls of cereal placed under his nose as he plays one of the war-strategy games that he currently loves -- Caesar II, say, set in ancient Rome, or Warcraft II, in which the player, in charge of the Humans, builds forts, towns, farms, and mills, all for the purpose of defeating the unspeakable Orcs, ardent little creatures who attack from many sides and emit anguished groans as they are hacked, maced, and cannonaded into the world below. (Children with a taste for perversity can take the side of the Orcs, or two kids can play against each other.) Warcraft is a big advance in complexity over the point-and-shoot games like Wolfenstein 3-D or Doom, in which the player passes through three-dimensional corridors and mows down endless assailants....

Max may then meet some friends and go for some lunch at the nearest Burger King, where he will eat a Double Whopper and drink a Coke and sternly ignore (I hope) the free dolls and other promotional appeals for “The Hunchback of Notre Dame.” Afterward, the group of boys may drift to a violent special-effects debauch like “Mission: Impossible.” Later, they may play some basketball in the park (baseball is not the game of choice for media kids), or just hang out at home and (if we let them) watch TV or a rented movie. As the kids sit watching, we shove plates of raw vegetables and roast chicken in their faces, which they sample, all the while demanding chips, Fritos, and Pop-Tarts. And so on, into the night. We intervene, pulling Max away from his friends, but on those occasions when we’re at work and can’t intervene, he’s spent his whole day in media junk, including the food -- a day of pleasure, companionship, and maybe heightened alertness, but little else.

Denby is not blind to the inevitable effects:

Even if the child’s character is not formed by a single TV show, movie, video game, or computer game, the endless electronic assault obviously leaves its marks all over him.... Sold a bill of goods from the time they are infants, many of today’s children, I suspect, will never develop the equipment to fight off the system of flattery and propitiation which soothes their insecurities and pumps their egos. By the time they are five or six, they’ve been pulled into the marketplace. They’re on their way to becoming not citizens but consumers....

Whether the sets are off or on, the cruddy tone is in the air and on the streets. The kids pick it up and repeat it, and every week there are moments when I feel a spasm of fury that surges back and forth between resentment and self-contempt. In those moments, I don’t like the way my boys talk -- I don’t like the way they think. The crude bottom-line attitudes they’ve picked up, the nutty obsessive profanity, the echo chamber of voices and attitudes, set my teeth on edge. The stuff fits, and they wear it. What American parent hasn’t felt that spasm? Your kid is rude and surly and sees everything in terms of winning or losing or popularity and becomes insanely interested in clothes and seems far, far from courage and selfhood.

Aided by armies of psychologists and market researchers, the culture industries reach my children at every stage of their desires and their inevitable discontent. What’s lost is the old dream that parents and teachers will nurture the organic development of the child’s own interests, the child’s own nature. That dream is largely dead. In this country, people possessed solely by the desire to sell have become far more powerful than parents tortuously working out the contradictions of authority, freedom, education, and soul-making.

Denby also dismally recounts arguing with his son (aged 12 at the time) over permission to view “Reservoir Dogs,” a movie containing gruesome, explicit scenes of extreme physical torture:

[H]aving seen “Pulp Fiction,” he wanted to leverage himself into seeing Quentin Tarantino’s earlier and much nastier (and more pointless) “Reservoir Dogs.” No, I said. But why not? he asked. After all, his friends had seen it. I told him I couldn’t stop him from seeing it at someone else’s house, but I would prefer that he not.

“Freedom of Speech”

Given how our culture is awash in a media bath recognized by many as socially harmful, it is odd that the idea of some kind of active regulatory role for government appears to be beyond the scope of legitimate discussion. The idea is absolutely never seriously considered in contemporary comment in the mainstream media. Even if it were an utterly misguided idea, a first step to Soviet-style thought control and the loss of political freedoms, the unanimity of these commentators would be curious. Given that the media are themselves the forum for public discussion, one wonders whether the media’s own interests influence public discussions about itself -- and whether an ironic suppression of open debate is at work in the media to defend free-speech orthodoxy. As a former Federal Communications Commission chairman, Newton N. Minow, writes in his book, Abandoned in the Wasteland: Children, Television, and the First Amendment:

It would surely come as a surprise to those who wrote the First Amendment to see that Americans now cite it not to begin discussion of the public interest, but as a reason to close it. Yet this is the rationale by which we have abandoned our children in the furthest and most foul reaches of the television wasteland: we have accepted the proposition that the marketplace of ideas, however imperfect, cannot abide any form of government intervention, and that any intervention -- even on behalf of children -- is unconstitutional....

[W]e have abandoned the search [for solutions] in favor of easy platitudes about the market that ignore what we know about the First Amendment. In so doing, we have also abandoned our children....

To serve [our children] requires civic debate among free people. That is why the Founders gave us the First Amendment. [1st ed., 1995, pp. 107, 135-136.]

Denunciations of the media, in any case, are heard frequently. It’s the proposed solutions that share a remarkable toothlessness. Industry self-regulation, parental control aids, opposition campaigns, boycotts -- does anyone imagine such measures can stop the tidal wave? It’s the power of capitalism that must be restrained.

The state of civilization is at a curious pass. While we have achieved democracy -- in principle a condition in which the government represents the people -- our distrust of government is so great we can hardly broach the subject of government solutions or social intervention, even when confronted by perils that only government can possibly address.

We are mired in rigid axioms of free expression rooted in an era when populations were ruled by an aristocratic elite. Though we know something in our world is deeply wrong -- and getting worse -- our instincts keep colliding with the insurmountable obstacle of free expression. The response by many is to reject their instincts and take to brooding over futile, orthodox responses.

A Surprise Ally: the ACLU

The American Civil Liberties Union (ACLU) is one of the most prominent and vigorous defenders of free speech in the U.S. The organization is still notorious today for its defense in the 1970s of the rights of American Nazis to parade in a community where many Jewish Holocaust survivors had their homes. Its position on the justifiability of imposing government restrictions on the mass media is thus noteworthy:

Pro-censorship forces, including many politicians, often cite a multitude of “scientific studies” that allegedly prove fictional violence leads to real-life violence....

If there really were a clear cause-and-effect relationship between what normal children see on TV and harmful actions, then limits on such expression might arguably be warranted.

[Emphasis added. Quoted from the ACLU’s Briefing Paper on Freedom of Expression in the Arts and Entertainment.]

Here is an implicit acknowledgement by the ACLU that government censorship would be warranted if media violence were shown to cause real-life violence. But speech restraint is not on the ACLU agenda, of course, because the ACLU maintains that “[t]here is ... virtually no evidence that fictional violence causes otherwise stable people to become violent.”

Astonishingly, not one of the scientific authorities cited by the same Briefing Paper in support of this position actually holds such a view. Indeed, the most unequivocal takes the diametrically opposite position, reporting “the irrefutable conclusion that viewing violence increases violence.” The ACLU’s own position thus implies that legal restraints on the media should be established.

The ACLU Briefing Paper states:

In 1972, the U.S. Surgeon General’s Advisory Committee on Television and Social Behavior released a 200-page report, “Television and Growing Up: The Impact of Televised Violence,” which concluded, “The effect [of television] is small compared with many other possible causes, such as parental attitudes or knowledge of and experience with the real violence of our society.”

Twenty-one years later, the American Psychological Association published its 1993 report, “Violence & Youth,” and concluded, “The greatest predictor of future violent behavior is a previous history of violence.”

In 1995, the Center for Communication Policy at UCLA, which monitors TV violence, came to a similar conclusion in its yearly report: “It is known that television does not have a simple, direct stimulus-response effect on its audiences.”

The American Psychological Association (APA) report referred to in fact states:

Three major national studies -- the Surgeon General’s Commission report (1972), the National Institute of Mental Health Ten Year Follow-up (1982), and the report of the American Psychological Association’s Committee on Media in Society (1992) -- reviewed hundreds of studies to arrive at the irrefutable conclusion that viewing violence increases violence. In addition, prolonged viewing of media violence can lead to emotional desensitization toward violence.

Children’s exposure to violence in the mass media, particularly at young ages, can have harmful lifelong consequences. Aggressive habits learned early in life are the foundation for later behavior. Aggressive children who have trouble in school and in relating to peers tend to watch more television; the violence they see there, in turn, reinforces their tendency toward aggression, compounding their academic and social failure. These effects are both short-term and long-lasting: A longitudinal study of boys found a significant relation between exposure to television violence at 8 years of age and antisocial acts -- including serious, violent criminal offenses and spouse abuse -- 22 years later....

In explicit depictions of sexual violence, it is the message about violence, more than the sexual nature of the materials, that appears to affect the attitudes of adolescents about rape and violence toward women. Sexual violence in the media includes explicit sexualized violence against women including rape, images of torture, murder, and mutilation as well as the nonexplicit sexual aggression shown on commercial TV and cable and on videos available for viewing at home. Films that depict women as erotically surrendering to a rapist and willingly being raped have been shown to increase men’s beliefs that women desire rape and deserve sexual abuse. Male youth who view sexualized violence or depictions of rape on television or in film are more likely to display callousness toward female victims of violence, especially rape. Laboratory studies also have shown an increase in men’s aggression against women after exposure to violent sexual displays. Such sexual violence is found in X- and R-rated videotapes that are widely available to teenagers. [Pp. 33-34. Emphasis in original.]

Certainly, as the ACLU Briefing Paper says, the APA report’s conclusions also indicate that, in attempting to predict whether a given individual will be violent in the future, it is more relevant to examine his history of violence than his TV viewing habits. This is hardly a refutation of the causal link between media and real-world violence.

As noted by the above APA report excerpt, the Surgeon General’s 1972 report also supported the opposite of the conclusion ascribed to it by the ACLU. However, the report was grossly corrupted by interference from the broadcasting industry (see below).

As for the remaining source cited by the ACLU -- the 1995 report of the Center for Communication Policy at UCLA -- the ACLU’s reference to this study is as difficult to fathom as the others. The report explicitly does not purport to address the issue. In its own words:

[T]his report is not an effects study.... [O]ur effort is a content analysis of television, with a focus on programing which may raise concerns with regard to violence. We make no attempt to draw inferences about the behavior of audience members based on the content of the programs. [1994-95 Violence Report, Historical Background]

Corruption of Government by the Media Industry

It is worth reflecting on the industry’s denials of the effects of its products, and its deliberate distortion of public policy -- actions reminiscent of the tobacco industry. The idea of class action lawsuits on behalf of violence victims appears eminently sound. It is clearly impossible to measure media influence on individual crimes. But if, for example, 10% of all violence in the U.S. were attributable to TV, as one researcher has suggested, then it would be reasonable to assess corresponding monetary damages against the industry and distribute the proceeds to all violence victims.

But the tobacco analogy is inadequate, since the media’s products have not merely caused individual instances of death and disease. Everyone is affected by the media’s impact on the culture. Far beyond incidents of physical harm, society has suffered the much more generalized consequences of an altered social climate, including a broadly increased acceptance of violence as a solution to problems. Given this acceptance -- one of the findings that psychologists who have studied the media’s effects are the most certain of -- it seems unquestionable that the media has had a substantial political impact, on issues ranging from police brutality to illegal drugs, prisons, welfare, and the Persian Gulf War. The striking drop in opposition to capital punishment among university and college freshmen over the period 1969 to 1990 -- from 50% to 18.5% -- is one possible indication of the cultural effects of media violence. (Figures based on annual surveys of about 100,000 male freshmen. To eliminate distortion from the increasing proportion of females, I have excluded them. Source: The American Freshman, Twenty-Five Year Trends, 1966-1990, Higher Education Research Institute, Graduate School of Education, UCLA, Sept. 1991.)

The media industry’s misrepresentations and its interference in government efforts to study its impact may yet come to be regarded as one of the most significant and harmful commercially motivated distortions of public policy in history.

The Surgeon General’s 1972 report on the effects of TV violence was initiated by a March 5, 1969 request from Senator John O. Pastore, chair of the Senate Subcommittee on Communications, to Robert H. Finch, Secretary of the Department of Health, Education and Welfare (HEW). Sen. Pastore wrote:

I am exceedingly troubled by the lack of any definitive information which would help resolve the question of whether there is a causal connection between televised crime and violence and antisocial behavior by individuals, especially children.... I am respectfully requesting that you direct the Surgeon General to appoint a committee comprised of distinguished men and women from whatever professions and disciplines deemed appropriate to ... establish scientifically insofar as possible what harmful effects, if any, these programs have on children....

What is at stake is no less than our most valuable and trusted resource -- the minds and hearts of our young people.

A Scientific Advisory Committee comprising 12 members was appointed by HEW. But a scientist attending a meeting of the committee eight months after it had been established was struck by an oddity. As Science magazine described it (“Study of TV Violence: Seven Top Researchers Blackballed from Panel,” May 22, 1970), the scientist, Edwin B. Parker, associate professor of communication at Stanford, “became concerned that some prominent investigators seemed inexplicably missing from the committee while employees or consultants of the television industry were prominently present.”

After Parker raised his concerns, striking revelations about the committee’s composition emerged. It turned out that a list of 40 candidates had been developed at HEW, based on suggestions from sources that included the broadcasting industry, and that the industry had then been invited to review the list and voice objections. None of the seven candidates objected to by the industry was selected for the committee. And of the twelve who were selected, five had close industry ties.

The Science article reports:

One of the committee’s own staff members -- Douglas A. Fuchs, the senior research coordinator for the investigation -- believes that “the scientific independence of this study has obviously been subverted to some kind of political consideration....”

Fifteen fellows at the Center for Advanced Study in the Behavioral Sciences at Stanford signed an open letter earlier this month ... urg[ing Secretary] Finch “to adopt procedures to ensure that HEW scientific advisory committees include all major relevant viewpoints.... We find particularly objectionable procedures that exclude one side of a controversy.”

Parker told Science that some investigators seem to have been barred from the committee because they had concluded on the basis of their research that “viewing of televised violence does not lead to catharsis of emotions and a consequent lowering of aggressive tendencies.” Parker warned that such an appointment procedure “constitutes a dangerous precedent” which “may be used to the detriment of the public interest in future cases involving drugs, safety, pollution or other such issues.”

The effect of the industry representatives’ presence on the committee is further described in a New York Times article, “Study Aides Voice Misgivings About Report on TV Violence,” February 19, 1972:

In the month since the public release of the Surgeon General’s report on the impact of television violence on children, a growing number of those involved have begun to air their misgivings about the report’s accuracy in reflecting the research on which it was largely based.

The 279-page report, which conceded the existence of a modest link between televised violence and aggression in some “predisposed” children, is being described by these critics in terms ranging from “purposeful fraud” to “misleading” and “a compromise....”

“There was a big move to get a consensus report,” said Dr. Murray of the National Institutes of Mental Health, a research coordinator [for the study]. “There was a lot of anger, the meetings were extremely tense,” he went on, with the warring factions “sitting at either end of the table, glaring at each other, particularly toward the end.”

The report as finally released, Dr. Murray said, gives “the over-all impression ... that the findings are trivial.” Dr. Murray, who has also read all the data, said this impression was “absolutely wrong.”

The first draft of the report was written by staff members, and then rewritten by the committee. “The report as initially drafted,” Dr. Murray said, “was, I think, much clearer,” before “everyone began tacking on their own caveats to the sentences.”

There was, he said, some sentiment in favor of having at least two reports issued, but the sentiment for consensus was stronger. “Looking back, I personally am sorry,” he said.

The concessions presumably wrung by the industry representatives on the committee led to almost risible equivocations and red herrings in the 19-page Summary Chapter, the most-read and most-reported part of the report. Also evident is a suppressed urge to assault the notion that all violence is bad. In the following excerpts, I’ve added the italics, while the underlining appears in the original:

It is sometimes asked if watching violent fare on television can cause a young person to act aggressively. The answer is that, of course, under some circumstances it can.... [T]he real issue is how often it happens....

[Is the violence] committed by sympathetic or unsympathetic characters...? It is entirely possible that some types of extensive portrayals of violence could reduce the propensity to violence....

The proper question is, “What kinds of changes, if any ... could have a significant net effect in reducing the propensity to undesirable aggression among the audience, and what other effects, desirable and undesirable, would each such change have?” The state of our knowledge, unfortunately, is not such as to permit confident conclusions....

Violence is a vague term.... Aggressiveness is similarly ambiguous, and its designation as antisocial depends not only on the act but also on the circumstances and the participants....

Measures of aggressive tendencies ... [, in the surveys used, involved behavior varying from] acts generally regarded as heinous (e.g., arson) to acts which many would applaud (e.g., hitting a man who is attacking a woman)....

The accumulated evidence ... does not warrant the conclusion that televised violence has a uniformly adverse effect nor the conclusion that it has an adverse effect on the majority of children....

TV Violence and the Child: The Evolution and Fate of the Surgeon General’s Report (Russell Sage Foundation, New York, 1975), a book by Douglass Cater and Stephen Strickland, includes a description of the March 21, 1972 hearings on the Report by the Senate Subcommittee on Communications:

Those social scientists who came prepared to criticize the Report for over-cautious conclusions soon found themselves overtaken by events. When the aggrieved [Dr. Monroe Lefkowitz, whose study results had been reinterpreted in the report] appeared before the Committee to present his critique, he admitted that “the Surgeon General’s Committee seems to have reversed its published position....” When Professor Leonard Berkowitz, one of the blackballed seven, sought to challenge the Advisory Committee’s intepretations, Pastore interrupted him: “I don’t think you were here yesterday, were you?” Upon hearing what those he came to criticize had said, Dr. Berkowitz concluded that “a new consensus seems to be evolving at perhaps a stronger level than had initally existed....”

[Cater and Strickland, pp. 88-89]

But “over-cautious” misses the essence of the criticisms. Prof. Albert Bandura of Stanford University, one of the scientists whose research the Report was based upon, stated at the hearings that the Report “demonstrates that the television industry is sufficiently powerful to control how research bearing on the psychological effects of televised violence is officially evaluated and reported to the general public....” (Hearings, March 21-24, 1972, p. 19. Quoted by Cater and Strickland, p. 83.)

In any case, Cater and Strickland write that the significance of the Report was “summed up ... in one sentence” by the testimony of Ithiel de Sola Pool, “a distinguished political scientist who, as a member of the Advisory Committee, had contributed importantly to developing conclusions on which all the Committee members could agree” (p. 87):

Twelve scientists of widely different views unanimously agreed that scientific evidence indicates that the viewing of television violence by young people causes them to behave more aggressively.

This is a report that the ACLU currently uses as a basis for denying a causal link between media and real-world violence.

Setting Objectives and Implementing Regulation

Is free speech an article of quasi-religious faith, or are we free to discuss responses to our modern plague? For the purposes of this essay, I claim the freedom to propose a break from our free-speech chains.

The government action proposed here is not censorship (nothing is prohibited), but does impinge on freedom of speech. It also suffers from a lack of political feasibility -- today -- in that it would have virtually no public support. The difficulty is that the activity at issue is the result of freely made consumer choices. I persist nevertheless in the hope that, in addition to its pernicious effects, free speech can occasionally operate as intended to awaken the public to its vital interests.

The alternative is fully possible as well: with so much money at stake, saving ourselves may be impossible.

In any event, the measures proposed below are not a very aggressive assault on free speech. In particular, it is free political speech that is indispensable to political liberty, and that freedom is untouched by this proposal.

If we define our objective as being to sharply brake the media’s influence over our culture, we may see that it is actually very achievable. Rather than seeking to place absolute strictures on every individual, as do, say, the drug war or censorship efforts motivated by religious belief, our objective only involves modifying aggregate behavior.

Essentially, the approach is economic -- to raise the price of media entertainment, and to reduce the cost of preferred leisure-time pursuits.

Implementation efforts should be geared towards specific goals. For example, if average daily media consumption for children in the 10-13 age bracket is 4 hours daily, we might seek to steadily reduce that to 1 hour over 5 or 10 years.

This is a radical behavior shift; but it could be accomplished if public support and political will were developed. This is not inconceivable if the curse and crisis of modern parenthood, and the attendant ills afflicting society, begin to focus wider attention on our media problem.

How could such a behavior shift be achieved? One often hears that in the Internet era, governments are impotent to control information. This is true to the extent that it’s hard to keep a secret, but it would do nothing to obstruct government action in this endeavor.

The price of entertainment products could be directly increased to any desired level via a special tax -- a retail tax for movie theatres, videos, and the like, and a per-minute tax on television consumption.

Treating all media entertainment equally is not as discriminating an approach as some would no doubt prefer, but its great simplicity makes the implementation of our ambitious reform program relatively straightforward.

Does the Internet threaten to subvert the program by enabling rogue retailers to evade the special tax? Of course not. Rogue websites may operate anywhere in the world, but illicit content can be blocked by the ISP’s Americans depend upon for their Internet connections, which are bound by U.S. laws.

Any doubts about technical enforceability, in any case, should be dispelled by the media industry itself, as it combats copyright violations in the Internet era. If copyright can be enforced, then so can a sales tax.

The subsidization and promotion of alternative leisure pursuits is the happier component of this two-prong program. A smorgasbord of rewarding and stimulating activities could be offered the young, encouraging positive socialization instead of murder and mutilation. Money can buy a great deal of happiness and wholesome enrichment. Activities might include sports (playing not watching), travel and tours, outings to wilderness areas, hands-on lessons in nutrition and cooking, debating, computers, and chess.

Constitutional (First Amendment) Objections

Minow’s Abandoned in the Wasteland notes the specious appeals to the First Amendment often heard from industry spokespersons and others wishing to foreclose discussion, and the “perverse error of divorcing our commitment to free speech -- the gift by which the Founding Fathers intended us to deliberate on the public interest -- from our commitment to the public interest itself.” [Emphasis in original] Among other examples Minow offers:

• Jack Valenti’s pompous response -- “the heavy hand of government slowly, steadily, remorselessly intruding into the outer perimeter of the First Amendment” -- when Congress and the FCC had misgivings over TV broadcasters’ decision in the 1990s to start competing with cable by imitating its sex and violence. [Minow, p. 127]

• Media Institute staff attorney Andrew Auerbach: “It is the height of demagoguery to use the First Amendment to protect children.” [Minow, p. 131]

In fact, as Minow observes, it is “a well-settled principle of common law that children are a special case under the First Amendment.”

For example, the Supreme Court ruled in 1988 that a high school has the right to stop publication of a school-financed student newspaper containing articles that do not meet standards set by the school. (Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 1988. This and other Supreme Court opinions available online.)

In a case involving an indecent radio broadcast (FCC v. Pacifica Foundation, 438 U.S. 726, 1978), the Supreme Court, while barring the statutory speech restrictions in question because they were overbroad, stated in its majority opinion that indecent programming could lawfully be restricted to hours during which children were unlikely to hear it:

Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.

The principle enunciated here -- that it is permissible to prohibit indecency that is easily accessible to children -- would seem to apply beyond broadcasting to all media, now and in the future, that are easily accessible to children.

In Sable Communications of Cal., Inc. v. FCC (492 U.S. 115, 1989), the Supreme Court again overturned overbroad statutory restrictions, but the justices’ unanimous opinion stated:

The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. We have recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. Ginsberg v. New York, 390 U.S. 629, 639 -640 (1968); New York v. Ferber, 458 U.S. 747, 756 -757 (1982). The Government may serve this legitimate interest, but to withstand constitutional scrutiny, "it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. Hynes v. Mayor of Oradell, 425 U.S., at 620 ; First National Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978)." Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980). It is not enough to show that the Government’s ends are compelling; the means must be carefully tailored to achieve those ends.

Minow reports that, following this opinion, Congress in 1989 amended the Communications Act, and

[t]he FCC then drafted rules requiring that commercial dial-a-porn services relying on either telephone companies or common carriers for collection and billing must notify the carriers that their services are indecent; the carrier in turn must either block access to the service until subscribers submit written requests to unblock them, or scramble their messages and sell personal decoders. Dial-a-porn services that do their own billing and collection must require credit-card payment before transmitting their messages. Significantly, both the Second and Ninth Circuit courts have upheld these rules, saying that they comply with Sable, that they are neither too vague nor too broad, and that they do not constitute prior restraints. [Minow, pp. 130-131.]

This indicates that even speech that takes place only among adults, that is not obscene, and that is not “uniquely pervasive” like broadcasting, can nevertheless be subjected to fairly stringent mechanisms to exclude children, even if these mechanisms entail some degree of awkwardness or hindrance for the adults seeking to communicate with each other.

In principle, the First Amendment might well permit prohibiting speech even without resort to the weaker standard of freedom that applies to children. The philosopher Sissela Bok argues that the evidence of psychological harm to children caused by excessive TV violence is so overwhelming that it presents “an interesting theoretical challenge to the familiar First Amendment doctrine of ‘clear and present danger’ ” [Quoted by Minow, pp. 133-134.]

Indeed, the Supreme Court’s language gives every indication that it would be permissible to curb entertainment based on a finding that such speech has become a powerfully negative social influence:

Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention [315 U.S. 568, 572] and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ Cantwell v. Connecticut, 310 U.S. 296, 309 , 310 S., 60 S.Ct. 900, 906, 128 A.L.R. 1352.

[Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942). Footnotes omitted.]

One would think it would be virtually trivial to conclude, in the case of a great number of popular TV shows, movies and video games, that “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Law as Diversion

But the law -- complicated, nuanced, enormous -- only presents endless distractions at this stage of our enterprise. We are not at the point of enacting legislation. As a democratic society we still need to progress towards the insights that would motivate legislation in the first place. Constitutional obstacles are the media industry’s agenda, the topic upon which they wish to focus the discussion. But the law is merely a tool for achieving our objectives. If we permit ourselves to be gulled into focussing on the tool rather than on the objectives, reform will never occur.

The problem before us is the absence of awareness that alternatives to regulation are not viable. We are faced with a serious threat to our fundamental civic values. The threat is a little bit subtle because it is not physical. That alone poses a conceptual challenge. Without some level of appreciation for the threat, and for the proposition that only regulation can address it, there will never be political momentum for practical reform, and constitutional considerations will be moot.

Suppose that, after recognizing our problem and determining a solution, we were to find ourselves in the bizarre situation that the Constitution obstructs us from saving ourselves?

Amendment is so difficult and rare that the idea incites ridicule. But it is for just such circumstances, after all, that the amendment mechanism was created.

Certainly, amendment requires an extreme level of consensus, a level that might be unachievable even if gathering doom were widely perceived. Could this remote and hypothetical scenario be a proper basis for shutting down our consideration of the problem?

The answer is too obvious. One hopes that the inheritors of a Constitution written in the name of freedom would also know how to choose if its open breach were the sole alternative to doom.

Paternalism

Besides superficially violating the cherished free speech principle, a media restraint proposal provokes the special loathing some reserve for paternalism -- the idea that government could know better than people what is good for them. However, paternalism is already well established in our laws: citizens go to jail for drug use and prostitution, and are barred from choosing employment or medical treatments deemed unsafe. There are also historical precedents for government policy running counter to popular sentiment, for example, measures such as school busing and desegregation enacted to mitigate the effects of racism.

But is a special tax on entertainment not a particularly vexatious infringement on our individuality? Again, there is irony in the direct opposition between the supposed and actual effects of free speech in today’s environment. The fact is, individuality itself is on the wane in our media monoculture, and a terrible homogeneity has been settling over the people like a thick blanket. When Denby hears “a stream of epithets in the rancorous tones of an inner-city black teen-ager” coming from his thirteen-year-old, there is no question as to its source:

One of the most remarkable social transactions of our time is the widespread assumption by white middle-class boys of the attitudes of a genuinely dispossessed class of young black men.... Pop has ... absorbed the oppositional energies that used to be associated with the avant-garde and with minority cultures, making once brave gestures empty gestures, commodifying discontent, inbreeding it with the edgy, in-your-face tone that teen-agers adopt as the sound of independence. That jeering tone has spread like a rash through the whole culture.

Those alien beings coaching our young, guiding their development from before the time they have learned to speak, are produced by central powers, for the masses. Never before has it been possible for new ideas, habits, mores, to sweep over and simultaneously inculcate large populations of individuals.

Far from threatening individuality and diversity, curbs on the media’s excessive influence are the best way to protect them.

Fat

A discussion of the evils of the media lifestyle cannot omit mention of the stupendous increase that has occurred in the numbers of children who are overweight -- from 5.6% in the late 70’s to 11.4% in the early 90’s. (Source: Centers for Disease Control and Prevention -- figures for children ages 12 to 17.)

This enormous shift in a little over a decade can hardly be attributed to genetic factors. It has to do with what young people eat -- and we know where their ideas come from. The ideas flow unhindered, while government surveys show that virtually all children in the U.S. aged 13 to 18 -- 94%! -- have diets rated as “needing improvement” or “poor” (Source: Dept. of Agriculture’s Center for Nutrition Policy and Promotion, 1996 figures.)

“Overweight” does not mean cute and chubby. Based on body mass index, it begins at 170 pounds for a girl standing 5 feet 4. A Newsweek cover story (July 3, 2000) says:

If the trend has continued [since 1994, the most recent year on record] -- and many experts believe it has accelerated -- one child in three is now either overweight or at risk of becoming so. No race or class has been spared, and many youngsters are already suffering health consequences. Dr. Nancy Krebs, a pediatrician at the University of Colorado, notes that overweight children are now showing up with such problems as fatty liver, a precursor to cirrhosis, and obstructive sleep apnea, a condition in which the excess flesh around the throat blocks the airway, causing loud snoring, fitful sleep and a chronic lack of oxygen that can damage the heart and lungs.

Even type 2 diabetes -- known traditionally as “adult-onset” diabetes -- is turning up in overweight kids. “Ten years ago I would have told you that type 2 diabetes doesn’t occur until after 40,” says Dr. Robin Goland of New York’s Columbia-Presbyterian Hospital. “Now 30 percent of our pediatric patients are type 2....” Unless [type 2] is carefully managed, this obesity-related condition can damage blood vessels within a decade, setting the stage for kidney failure and blindness as well as amputations, heart attacks and strokes. And because children are not routinely screened for type 2 disease, Goland worries that many cases are going undiagnosed....

Dr. Thomas Robinson, a Stanford pediatrician, has shown that simply limiting TV time can help immunize [kids] against obesity. In a study involving 192 third and fourth graders, he found that those who held their screen time to one hour a day were measurably leaner after nine months than those who watched the tube at will.

Conclusion

The foreword of a book on a different subject opens with the observation:

Although we say our children are our future, [the problem] is a good example of the human race’s proclivity for living in the present.... The price the children pay is everyone’s expense. Society has sacrificed these healthy, joyful young people filled with hope and has increased their risk of becoming damaged, despairing adults filled with anger or emptiness. We have lost our full complement of competent parents and caring adults, and have produced some people with crippled psyches, some of whom become dangerous offenders.

[Our Little Secret: Confronting Child Sexual Abuse in Canada, by Judy Steed, Random House of Canada, Toronto, 1994.]

Pedophiles do not enjoy the power and influence wielded by the media industry. Their exploitation of children is illegal and generally considered an outrage.

While the media industry’s exploitation of children is undoubtedly less shattering in individual cases, it is analogous. It is certainly more pervasive. And we allow it to be carried out openly and unimpeded through the entire course of the child’s development.

Denby’s lament is undeniable: people possessed solely by the desire to sell have become far more powerful than parents. The market forces that have brought us here are impersonal, they do not represent us, and they are indifferent to our ideals, our values, our morality, and the kinds of lives we want to lead. Anyone who breathes can sense the pollution thickening in our atmosphere. Our future is written in the smog pouring from the smokestacks pointing at us from every direction.

Our society and culture are in the grip of a force, powered by modern technology and the spending of a large population of modern consumers, that would have been inconceivable to the Founding Fathers. To invoke “freedom of speech” as a rationale for passivity and resignation in these circumstances amounts to declaring ourselves slaves to the perverse rendering salesmen have made of an honorable principle intended to defend liberty. Worse, it means we are unwitting slaves, ritualistically sanctioning egregious speech even as the ocean of commonplace sludge inches over our knees and continues upwards in its lethal climb.