By Craig R. Smith, Contributing Writer, and Rebecca DeVerter, Legal Intern
Updated February 2018
At least since Socrates was condemned for “corrupting” the youth of Athens, societies have been concerned about how to protect themselves from bad influences. While most of the classic cases of alleged corruption have dealt with indecency and obscenity, in the United States in recent years there has been outcry against violent films and computer games that score body counts. Unlike Socrates, the purveyors of violent programming tend to be media giants who may own motion picture studios, cable channels and computer companies. Their adversaries tend to be members of Congress responding to outcries by their constituents to end violence in the entertainment media. The arbiters in these cases are members of various judicial panels, including the U.S. Supreme Court.
The cases that emerge raise several important philosophical and psychological questions. How much influence does a given medium or program have on an individual? How much responsibility does a programmer have for the influence of the program on the average viewer or player? What is the value of social science evidence in a court of law?
The burden of proof: a provable link
Perhaps the most direct challenge that has come to program producers has been the charge that they are responsible for imitative actions on the part of viewers. Suppose a 16-year-old boy watches a wrestling match on a cable channel and then while trying to imitate the feigned violence breaks his buddy’s neck. Can the parents of the victim sue the cable channel and the wrestling producer for inducing the damage? To date, the courts have ruled against such torts.
In fact, no court has granted monetary compensation for harm allegedly caused by a television program or music recording, because the courts doubt the existence of a provable link between television and violence. In Zamora v. Columbia Broadcasting System, Olivia N. v. NBC, Walt Disney Prod. v. Shannon, DeFilippo v. NBC, and Waller v. Osbourne, the plaintiffs were denied damages when they alleged that they were victims of violence incited by television programming or, in the last case, an Ozzy Osbourne recording. Instead, the courts sided with the defendants’ claim to a First Amendment right to freedom of expression. Based on Brandenburg v. Ohio (1969), the scope of the advocacy of “imminent lawless action” doctrine has been limited; the Supreme Court has specifically ruled that televised violence does not fall into that category, especially if it is entertainment. The same is true of the “clear and present danger” standard articulated in Schenck v. United States (1919). That test was strengthened in Whitney v. California (1927), where Justice Louis Brandeis in a concurring opinion joined by Justice Oliver Wendell Holmes wrote that “Fear of serious injury cannot alone justify suppression of free speech … . Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced.”
Another common, yet unsuccessful, claim by plaintiffs has been in products liability under tort law, which is a strict liability claim. In James v. Meow Media, parents of the victims of a school shooting attempted to hold the creators of violent movies and videogames accountable for the shooting under tort law under negligence, strict liability, and RICO violations. However, the claim of products liability requires direct harm, and the harm inflicted in these cases was upon third-parties The District Court for the Western District of Kentucky dismissed the case, holding that the strict liability claims failed because the defendant’s actions “constituted a superseding cause which broke the chain of causation.” Therefore, it was not possible for the plaintiffs to successfully prove this claim, and the courts have continued to stress the importance of the First Amendment protections on the entertainment media industry.
The First Amendment was adopted to protect the imaginative, the free thinkers, and those who question. Only in this way can the cauldron of thought be allowed to bubble freely to produce the new, the innovative, and the corrective. The price is that the cauldron will also produce material that is uncomfortable to some. That is the price of freedom and often the price of truth. Viewing Shakespeare’s Hamlet shocks the system while providing a catharsis. Hamlet’s father is poisoned, Ophelia commits suicide, Polonius is stabbed to death, Queen Gertrude and King Claudius are poisoned, Hamlet is stabbed with a poison rapier, and kills Laertes. However, Shakespeare finds these murders necessary to advance several important themes concerning the existential experience. If violent entertainment is the cause of our ills, and if that cause is to be exterminated, then a great many works of art would have to be destroyed in the name of protecting society.
In the United States, the First Amendment was established in part to protect minority views that contributed to the public understanding, the search for knowledge, and political reform. However, new media have often aroused legislators’ and judges’ suspicions. In some cases, they have argued that a compelling government interest trumps the First Amendment. For example, during World War I, President Woodrow Wilson established a review board for the newly emerging motion-picture industry to make sure its films did not undermine the war effort. Censorship of motion pictures lasted until 1952, though it tended to focus on sexual content as opposed to violence (see Joseph Burstyn, Inc. v. Wilson).
Media violence and social violence
Recently, some have argued that violence in the media contributes to violence in society as a whole; thus, the government has a compelling interest to reduce and/or censor violence in programming. A host of national policymakers has brought pressure on producers and broadcasters of violent programming to curtail “gratuitous violence.” In 1994, for example, Rep. Edward Markey, D-Mass., told the television networks to figure out a way to label violence in programming or the Congress would do it for them. In 1995, good to his word, he attached legislation to a communications bill that required the installation of a so-called V-chip in all new television sets. The legislation was signed into law, then (see below) further amended when the ratings were found to be too vague by some in Congress.
Reed Hundt, then chairman of the Federal Communications Commission, warned that networks might be legally responsible for the effects of their programs and that the FCC had the power to regulate the content of programs. Speaking before the executive committee of the National Association of Broadcasters in February 1994, Hundt called for “new family programming” to “educate and instruct” children. Appearing before Markey’s committee later that year, Surgeon General Joycelyn Elders attacked the networks for not doing enough to reduce violence on television. With the resignation of Elders, Attorney General Janet Reno emerged as the point person on this issue. She told Congress that regulating the content of programming did not violate the rights of broadcasters because they are second-class citizens under the First Amendment.
In February 1995, Sen. Kent Conrad, D-N.D., introduced a bill to ban “gratuitous violence” from television between 8 a.m. and 10 p.m. Sen. Bob Graham, D-Fla., coerced the Defense Department, the Postal Service and Amtrak to agree not to place advertisements in “excessively violent” programming on television. Sen. Fritz Hollings, D-S.C., introduced legislation to ban violent television programs when children are “reasonably likely” to compose a “substantial part of the audience.” Since that time Sens. Joseph Lieberman, D-Conn., and John McCain, R-Ariz., have held hearings and warned producers that regulation is just a bill away. The resulting changes in the V-chip rating system with its confusing list of letters to characterize violence, violent language, sexual material (see below) and the like have not been challenged in the courts, perhaps because producers would rather play along with the letter game than offend Congress and risk greater controls.
Predictably, politicians have been unable to resist the urge to blame television for society’s many ills. In 1954, for example, Sen. Estes Kefauver, D-Tenn., investigated the relationship between juvenile delinquency and television programs. Sen. Thomas Dodd, D-Conn., revived this issue in the early ’60s; he eventually persuaded President Lyndon Johnson to establish the Eisenhower Commission on the Causes and Prevention of Violence in 1968. Since its conclusions were not in accord with his impressions, Sen. John Pastore, D-R.I., requested that the surgeon general issue another report on the problem. Three years later under the watchful eye of the Congress, a report was published that hinted at a weak correlation between the viewing of violence and violent activity: “The effect is small compared with many other possible causes, such as parental attitudes or knowledge of and experience with the real violence in society. [The evidence does not] warrant the conclusion that televised violence has a uniformly adverse effect … [or] an adverse effect on the majority of children.” 1 Nonetheless, the surgeon general appeared before Pastore’s committee and claimed a causal link had been documented though “carefully phrased and qualified in language acceptable to social scientists.” 2
By the fall of 1974, FCC chairman Richard Wiley was urging the three commercial networks to curtail “sex and violence” on television. Unfortunately, his call intertwined indecency with violence. In reaction, the networks and the National Association of Broadcasters Television Review Board adopted the “family viewing” policy, which moved violent and sexual programming into the 9 to 11 p.m. time slot. Nonetheless, the FCC made clear that “industry self-regulation” was preferable to governmental regulation, that such standards were highly subjective and raised “serious constitutional questions” (Broadcast of Violent, Indecent, and Obscene Material, 1975). Sure enough, in November 1976, the courts found the “family viewing” hour unenforceable and unconstitutional in Writers Guild of America W., Inc. v. FCC. More recently, the courts have ruled that the FCC can put in place a restriction on “indecent” material limiting it to broadcast to between 10 p.m. and 6 a.m., but they have not included “violent” material in their rulings.
In the aftermath of the school shooting at Sandy Hook Elementary School in 2012, there was a push by lawmakers and citizens alike to place limitations on the sale of firearms after it was discovered that the individual who committed the shooting obsessively played the violent video game Call of Duty. That fact once again opened up the debate about the role that violent media plays in society. In response to this, Sen. Jay Rockefeller, D-W.Va., introduced the Violent Content Research Act, which sought to have the Center for Disease Control (CDC) conduct more extensive research on the relationship between media and violence. However, this faced criticism because pre-existing studies on the correlation between media consumption and violence have not been conclusory.
Additionally, with the advent of streaming services such as Netflix, Hulu, Amazon Video, and even YouTube, there is now a unique challenge to the efforts made to protect minors from viewing violent television programs. These streaming services makes accessing entertainment quick and easy for any viewer. While this has become very convenient, it has also raised many concerns as younger audiences are gaining access to violent media. While these streaming services allow parents to put parental controls on what their children can watch, there are still rising concerns because of how easily accessible these resources are.
Vagueness and violence
In Winters v. New York (1948), Justice Stanley Reed, writing for the majority, protected entertainment from infringement by ruling that “[t]he line between … informing and … entertaining is too elusive … . Everyone is familiar with instances of propaganda as fiction. What is one man’s amusement, teaches another’s doctrine” (see also Cohen v. California, 1971). That was an important ruling because Winters is one of the few Supreme Court cases that deal with the question of the effect of violence in the media. The state of New York had arrested New York City bookseller Winters under a statute that prohibited the sale of stories of bloodshed. After three arguments before the Supreme Court, the law was deemed unconstitutional on the grounds that it was too vague.
The vagueness of the term “violence” is one of the most persistent problems for those who seek to regulate it because it encourages arbitrary regulation that collides with free and creative expression. The Supreme Court has consistently ruled that inhibiting speech is unconstitutional, especially when the inhibition is caused by the application of an “arbitrary and capricious” standard. Television programs from reruns of “The Three Stooges” to “Will & Grace” achieve comic effects using what some have called violent activity. Because conflict makes drama, it is hard to find a serious fiction, whether it is Macbeth or “The West Wing,” that is not violent in some way. Furthermore, philosophically, it is not difficult to demonstrate that violence can be used to reinforce in the mind of audience members what is moral and what is immoral. In The Case for Television Violence, Jib Fowles demonstrates that violence in programming is cathartic and might actually prevent further violence on the part of viewers.
Thus, the use of social scientific studies in the courts is a troubling question. President Bill Clinton’s last surgeon general, David Satcher, issued a report in 2000 linking violence with the media. It came under immediate attack by numerous scholars. For example, Karen Sternheimer, a sociologist at the University of Southern California and a researcher at the Center for Media Literacy, wrote: “One of the studies the surgeon general cites equates programs as diverse as cartoon and police dramas with video games and action movies.” 3 This procedure, claims Sternheimer, negates “the importance of context and meaning.” The surgeon general’s comparisons are misleading and dangerous because they ignore the more likely causes of violence such as “alcohol abuse, the deterioration of public education and the lack of economic opportunity in impoverished areas.” Thus, the issue of causation is a problem for social scientists because they can never eliminate all possible causes and must rely instead on a substantial “correlation” of activities to make their case.
A further problem for social scientists is the definition of violence. Aside from reality and news programming, most violence on television is acted; it is not real. When viewers see a motion picture, they know that it is not real. So how does one measure the impact of violence that is not real, but imagined? Sometimes violence is described as aggressive behavior; sometimes it is described as verbal abuse and teasing. Constitutional scholars Thomas Krattenmaker and Scott Powe put the problem this way in Televised Violence: First Amendment Principles and Social Science Theory, their 1978 landmark 200-page review of social scientific research:
“Finally, and most damaging to proponents of the violence hypothesis, no one yet has been able to suggest an acceptable operational definition of the very kind of behavior sought to be measured: ‘violence.’ To be useful as a basis for policy making, studies of the causes of violence must rest upon a definition incorporating normative, social connotations. To illustrate, if violence is defined simply as a willingness to stand one’s ground when physically attacked, it is extremely unlikely that violence caused by television would produce an outcry for increased regulation. What then can the researcher take as an objective observable conception of violence capable of measuring behavior that produces social concern?”
Additionally, in 2016 Christopher Ferguson, PhD acknowledged that many of these studies are based upon the assumptions that “imitation of behavior is automatic, universal, and purposeless; that aggression is primarily learned…; that viewers are passive rather than active selectors and processors of media; and that fictional media is processed by the brain in a similar manner to real-life events.” Such assumptions can prove to be problematic because it can adversely affect the results of psychological studies, and therefore draw incorrect conclusions.
Video games and the courts
A recent case in this regard concerns an ordinance written by the city of Indianapolis attempting to limit access to violent video games by minors in arcades. The ordinance defined “graphic violence” in two ways. First, it bracketed “graphic violence” with obscenity, arguing that it caters to a “morbid interest” and is “patently offensive to prevailing standards in the adult community as a whole … and lacks serious literary, artistic, political or scientific value.” Secondly, the ordinance defined “graphic violence” as “amputation, decapitation, dismemberment, bloodshed, mutilation, maiming, or disfigurement.” The trial court approved the implementation of the ordinance on the grounds that psychological studies of other games provided enough data to convince the court that such games induced minors to aggressive acts of violence.
The case was appealed to the 7th U.S. Circuit Court of Appeals in 2001. Judge Richard Posner wrote for the court in American Amusement Machine Association v. Kendrick. Citing Winters, which makes clear that “depiction of torture and deformation are not inherently sexual,” Posner refused to equate violence with obscenity; he likewise took exception to the use of court-sanctioned obscenity prohibitions as applied to violent depictions. Furthermore, Posner argued that “no showing has been made that games of the sort found in the record of this case” induce violence. “The grounds” for such an ordinance, he added, “must be compelling” not merely plausible, because “[c]hildren have First Amendment rights” (Erznoznik v. City of Jacksonville,1975; Tinker v. Des Moines School District, 1969). Posner compared the video games to literature containing graphic violence and concluded that video games, despite their interactive nature, were still stories that taught various lessons.
In recent years, several states, including Minnesota, Michigan, Illinois, Louisiana, Oklahoma and California, have been sued over laws limiting minors’ access to violent video games. In each case, a federal judge, and in some instances a federal appeals court, has barred enforcement of the state’s law. Despite the repeated defeats in federal court, legislators keep considering and passing new laws regulating violent video games.
“Part of it is a generational thing,” says Sean Bursell, vice president of public affairs for the Entertainment Merchants Association. “Most of these legislators have never played today’s generation of video games. All they know is what they see in sensational clips they are shown from a few of the most extreme games — games designed, marketed, and rated for persons age 17 and older, games that retailers have committed not to sell to anyone under age 17.
“Some legislators tell me they want to send the industry a ‘message’ that they don’t like violent games,” Bursell says. “Others say that, since a video-game restriction law hasn’t been tested in their federal circuit, the precedents don’t apply, and they want to see what their courts say. And there are those who claim to have figured out how to untie the Gordian knot of case law in this area, that every other state got it wrong, but they know how to do it right.”
Bursell adds that “even though we have the First Amendment on our side, the Entertainment Merchants Association and its member retailers do not believe that any child should be able to buy or rent a video game that their parents believe [is] inappropriate for them.”
“EMA, its members, and other video-game retailers support the video-game ratings of the Entertainment Software Rating Board and have made commitments not to sell or rent a video game rated ‘Mature’ to anyone under age 17 absent parental authorization,” he says. “It’s simply that, under our Constitution, the government cannot mandate this.”
Most recently, the Supreme Court decided the case Brown v. Entertainment Merchants Association. In this case, the Court held that violent video games did not constitute obscene material, and that the “state did not have a compelling interest in preventing psychological or neurological harm to minors allegedly caused by video games.” As a result, the Supreme Court struck down a California law that prohibited the sale of certain video games to children without parental supervision. In support for its argument, the state attempted to provide evidence of psychological studies that showed a correlation between violence and consumption of violent media. The majority opinion stated that such studies had been rejected by the courts, and did not actually prove that violent video games cause minors to commit acts of violence. However, in his concurring opinion, Justice Alito warned of the dangers associated with the evolving technology that our society faces today.
Questionable research, cultural disparities
As in the Indianapolis case above, there has been much research on the effect of broadcast violence on its audience. However, much of it is subject to criticism because of methodological flaws. 4 The laboratory tests are not scientific, not representative of the population, and do not use an operational definition of violence. As Marcia Pally has reported in Sex and Sensibility, the Department of Education concluded that “a disturbing amount of scholarship has been slipshod.” That is why it is very difficult to get such evidence admitted in courts of law.
Edward Donnerstein is one of the leading experts on violence in the media. He gave a lecture in which he argued that “viewing violence per se does not cause people to become violent.” 5 Donnerstein pointed out that countries with much more violence on broadcast media than America do not have high levels of violence in society. He cites Japan and Canada as his examples. What America has that Japan and Canada lack is a high level of poverty, excessive gun ownership, drug abuse, broken homes, illegitimacy and gangs. Donnerstein notes that violence in America has declined for every age group except teenagers, where the increase skews the results for the rest of the population.
James Q. Wilson, the Collins Professor of Management and Public Policy at UCLA, reached a similar conclusion in his book The Moral Sense. Wilson points out that in Japan, incredible violence pervades the media. And yet Japan has remarkably low rates of crime, especially violent crime. This was further supported by a comparison published by the Washington Post in 2012, which supported the notion that the link between video games and gun violence is smaller than it is believed to be. This comparison noted that “countries where video game consumption is highest tend to be some of the safest countries in the world[,]” which seems to suggest that other factors contribute to violent tendencies in society.
Programming and the future
In light of these findings, those calling for censorship of violence have fallen back to imposing bans or labeling what they deem to be “violence.” Ostensibly, parents can then program a V-chip that would block programs rated at a level the parents did not want their children to see. However, critics found the ratings wanting because they did not contain enough information to be useful or accurate. Five months after the ratings were in place, a survey taken by the Annenberg School East revealed that 70% of parents were familiar with it; however, only 35% used it to advise children’s viewing. Only 6% could correctly identify what “TV-14″ means and this was on a multiple choice answer with the correct choice staring them in the face. 6
Thus, the networks, with the exception of NBC, and producers reluctantly agreed to supplement their age-based ratings with V for violence, S for sexual conduct, D for dialogue not suited for children, and FV for fantasy violence. TV-Y means the program is designed to be appropriate for all children; TV-Y7 means the program is directed to children age seven or older; a TV-Y7-FV rating means the same thing except that the program contains fantasy violence. TV-14 means the program contains some material that many parents would find unsuitable for children under 14 years of age. TV-MA means the program is specifically designed to be viewed by adults and therefore may be unsuitable for children under 17. (See Rating & labeling section in this topic.)
The networks and cable companies have cooperated with the government in other ways. For example, in 1994, the broadcast networks chose the UCLA Center for Communication Policy to monitor programming; cable networks selected MediaScope to conduct a parallel study coordinated through four different campuses. Both studies were set for three years. The UCLA study quickly narrowed its purview to the hours that children were most likely to watch, that is, Saturday-morning and prime-time programming, and argued that context was the most important factor in deciding whether or not violence was appropriate. The 1994-95 report stated that television series raised relatively few concerns. Movies for television were more violent, but not as violent as versions shown in theaters. The report recommended that violent programming be moved to later in prime time, but not eliminated. It also recommended that the major networks re-examine their policy of importing films made for theaters onto television screens. The 1995-96 report reinforced the findings of the first year’s report. While 14% of programs raised some concerns regarding violent content in the first year study, only 10% raised concerns in the second year.
As previously mentioned, the ability for parents to monitor what media their children consume has become more difficult with the advent of streaming services. In 2017, the New York Times revealed that on the popular children’s app, YouTube Kids, inappropriate videos (including violent content) was getting past the app’s automated filters and becoming available to young viewers. In this instance, whenever videos were “uploaded to Youtube, algorithms determine[d] whether or not they [were] appropriate for YouTube Kids.” This allowed people to work past the algorithms in order to get inappropriate videos submitted to the website. In order to tackle this problem, YouTube added more human interaction in the process for selecting videos to be displayed on the app. Additionally, parents are given the opportunity to not only report the inappropriate videos, but to put blocks on certain searches and channels. Recently, other apps such as Netflix and Amazon, have been working on making more children’s content available on their services.
The Center for Communication Policy at the University of California-Santa Barbara took over the cable project. Its first-year report was based on an examination of 2,500 hours derived from 2,693 programs. It warned that the consequences of bad behavior needed to be emphasized and that the use of handguns in violent acts should be reduced. However, the study concluded that television violence is usually not explicit or graphic. Most violent acts portray a minimum of blood and gore; camera angles often protect the viewer from more graphic portrayals with the exception of news and reality-based programming. The center’s report also concluded that most violence was concentrated on premium cable channels that required extra payment for viewing. The report made very clear that it was merely describing the gathered data and not recommending government censorship of any kind.
Much more to the point were studies and statements released in 2000 that analyzed these and other violence studies. Jonathan Freedman, a professor at the University of Toronto who has studied violence and the media for many years, concluded that none of the 200 or so recent violence studies support a causal relationship between violence in programming and violence in society. Richard Rhodes, a Pulitzer Prize-winning scientist, told ABC News: “There is no good evidence that watching mock violence in the media either causes or even influences people to become violent.” 7. Despite that lack of evidence, there has still been widespread concern over the effects that violent media has on society. In 2016, Christopher Ferguson, PhD wrote that “media violence effects may be minimal.” While these concerns over violent media have existed for years, research has suggested “that links between media violence and child aggression are less clear than previously thought.”
Given the controversy over social scientific data, the courts have usually found that violence in programming cannot be regulated without creating a chilling effect on its content. Such an effect could only be justified if convincing data existed to establish an actual causal link between violence on the media and violence in society. Despite periodic claims to the contrary, studies to date have yet to establish such a link.
Furthermore, because violence is difficult to define, it presents regulators with the opportunity to censor in an arbitrary and capricious manner, which is also unconstitutional. Thus, until a viable, legally tenable definition of violence can be found, regulating it may prove impossible in light of the arbitrary and capricious standard. The movement to conflate violence with indecency has also fallen on deaf ears. Other remedies, such as the V-chip, have been imposed only because the media involved have cooperated with regulators. The constitutionality of such government-mandated labels has not been tested.
Thus while members of Congress and others seek way to curtail violence in the media, it is likely to remain a staple of the entertainment industry.
First Amendment scholar David L. Hudson Jr. contributed to this report.
1 Television and Growing Up: The Impact of Televised Violence, U.S. Government Printing Office, 1972, pp. 4, 7
2 Surgeon General’s Report by the Scientific Advisory Committee on Television and Social Behavior: Hearings Before the Subcomm. on Communications of the Senate Comm. on Commerce
3 Karen Sternheimer, “Blaming Television and Movies Is Easy and Wrong,” Los Angeles Times, Feb. 4, 2001, p. M5
4 See Jonathan Freedman, “Television Violence and Aggression: A Rejoinder,”Psychological Bulletin, 100 (1986): 372-78; Victor Strassburger, “Television and Adolescents: Sex, Drugs, Rock ‘n’ Roll,” Adolescent Medicine, 1 (1990): 161-94)
5 Marcia Meier, “Violence in Our Society: Who’s to Blame and What’s to be Done?” Santa Barbara News-Press, March 5, 1995, G5
6 “Parents Don’t Understand, Study Concludes,” Broadcasting & Cable, June 9, 1997, p. 7
7 Broadcasting & Cable, Oct. 30, 2000, p. 82