Regulators cast eye on movie ads

First tobacco, then guns. Now the entertainment industry - pummeled anew as a threat to the health of America's youths - could be the next target for government regulation.

But US lawmakers won't use their regulatory pen to alter the content of violent movies, video games, and music. The Constitution and the courts prohibit that.

Instead, they are concentrating their firepower on the entertainment industry's marketing strategy. A possible outcome: restricting the selling of violence to kids.

The idea echoes an earlier federal effort to stop tobacco companies from peddling cigarettes to children. While it is sure to meet stiff resistance from the titans of Hollywood, analysts say the tactic can be perfectly legal and offers Washington a way to respond to broad parental concern about violence on the big and small screen.

"If the entertainment industry continues ... unabated to market death and degradation to our children ... then one way or the other the government will act," said Sen. Joseph Lieberman (D) of Connecticut, at last week's Senate hearing on marketing violence to children. "The people will demand we act."

Senator Lieberman is co-sponsoring a measure that would direct the Clinton administration to investigate the marketing practices of the entertainment industry. The provision, offered with Sen. Orrin Hatch (R) of Utah, was expected to be considered as the Senate began debate on a youth-violence bill yesterday.

This small but potentially significant step runs counter to the message of this week's White House conference on youth violence: that movie, game, and music producers should step up voluntary efforts to raise standards, and that parents - not the federal government - are the best gatekeepers for their kids.

The White House has taken up the regulatory battle before, and lost. In 1997, the Supreme Court struck down the Communications Decency Act as an infringement on First Amendment protection of free speech. The act made it a crime to transmit material on the Internet containing "obscenity" to minors.

In another defeat, President Clinton and federal lawmakers failed last year to stop cigarette-makers from marketing to kids. Big tobacco eventually did reach an agreement with individual states to restrict youth-directed advertising - including the elimination of tobacco designer clothing and cartoon characters such as Joe Camel.

While the White House is not opposing an investigation of entertainment-industry marketing, that's not what it is emphasizing, says Bruce Reed, domestic policy adviser to Mr. Clinton. "What government can do is provide parents with tools to control content they don't approve of."

Constitutional scholars say free speech is not an issue if the distinction is made between youths and adults, and if restrictions focus on access, not content. Just as regulations ban the sale of pornography to children, so could they be applied to violence-laden entertainment.

"There is room under the First Amendment for measures if they can be exclusively confined to marketing to youth," says Paul Rothstein, a professor of constitutional law at Georgetown University here. "But you get constitutional difficulties ... if they impact on materials to adults, and that is always the problem."

Curtailing adults' rights in the course of restricting minors' rights proved to be the undoing of the Communications Decency Act, and it's an argument the entertainment industry clings to.

In entertainment advertising, the industry argues, it's impossible to separate ads seen by youth from those seen by adults.

"If an ad runs in The Washington Post, a 12- or 14-year-old can read it," said Jack Valenti, president of the Motion Picture Association of America, after the May 10 conference at the White House.

But lawmakers such as Senators Lieberbman and Hatch see it differently. They point to violent movies, cast with young actors, that are advertised on MTV, the teen-oriented music video channel. And although video gamemakers rate their games for appropriate audiences, they sell action figures from games marked "M" (for 17 years and older) at stores such as Toys 'R' Us.

Bolstering those in Congress who may want to restrict marketing could be a US Surgeon General's report on the effects of violent culture on youth.

If the Surgeon General finds that violent entertainment causes or contributes to violent behavior, that would give impetus to lawmakers and individuals who want to take on Hollywood. Just last month, in the first case of its kind, three families sued major video-game and movie producers, alleging their products inspired a student to go on a fatal shooting spree at a Kentucky high school in 1997.

If the Surgeon General were to link entertainment with behavior, "it would definitely add the weight of science," says Yale University's Akhil Amar, a constitutional scholar.

He and Mr. Rothstein say the government's fights against the tobacco and gun industries could help pave the way for regulating entertainment marketing.

Like the entertainment industry, gun manufacturers and users seek shelter under the Constitution, where they are covered by the right to bear arms. Yet under tremendous public pressure, gun representatives invited to the White House May 10 now support five modest gun-control measures, including the president's proposal that background checks be required for purchasers at gun shows.

In the end, the entertainment industry might get so concerned about the prospect of regulation that it does a better job of enforcing its own rating standards - such as turning underage kids away from R-rated movies or refusing to sell certain video games to youths.

For now, lawmakers have planned no regulatory legislation, hoping that a Congress-approved marketing investigation will prompt the entertainment industry to respond. But the threat still lingers. Said Lieberman at a Monitor breakfast May 11, "It's even possible that the [administration] might ... conclude that there's a basis for legal action here."