TV violence tough to curb despite FCC's new plea

Defining violence narrowly enough to satisfy the courts is a tricky challenge for Congress.

The graphic torture and death scenes on "24," "CSI," and other popular shows may soon come under government fire.

The Federal Communications Commission, which released its long-awaited recommendations on TV violence last week, is strongly urging that Congress can and should regulate the degree of violence that can be shown during prime-time hours. The FCC has also proposed to regulate cable TV for the first time, attempting to reduce the market for violent images by requiring cable companies to offer consumers more flexibility in which channels they choose to purchase.

While such regulation may prove politically popular, it will be a tough sell to the courts, experts say.

"There is very little chance that a bill attempting to define violence and regulate it would ever pass constitutional muster," says Clay Calvert, codirector of the Pennsylvania Center for the First Amendment at Pennsylvania State University. "It would be a huge shift for [the FCC] to regulate content on cable and satellite, and this is probably not the best issue to do it on…. Violence is going to be even harder to define than indecency."

Despite that, many advocates say that evidence of harmful effects of media violence on children, combined with a significant increase in the degree of violence that makes it over the air waves, means that the government needs to try.

Sen. John Rockefeller (D) of West Virginia commended the report and said he'll introduce legislation within the next few weeks that may incorporate some of the FCC's suggestions. Other parent advocates acknowledge that such laws can be incredibly difficult to enforce but say that a discussion about the issue is vital.

"We're not talking about car chases and shoot'em-up scenes, we're talking about graphic depictions of rape and torture," says Dan Isett, director of corporate and government affairs for the Parents Television Council (PTC). A recent PTC study showed that there had been a 75 percent increase in violence on prime-time network programming since 1998, he notes.

"The best solution here is meaningful industry self-regulation," he adds. "If they don't do that, then what other recourse do the American people have?"

Critics of government intervention say that parents, in fact, have quite a few resources – including blocking channels, blocking certain programs by using V-chip technology, or simply monitoring their children's TV-watching more closely.

"There are good shows and bad shows. The problem is when you say the solution to that is having the government make decisions about what shows are right and what shows are wrong," says Jim Dyke, executive director of TV Watch, a coalition based in Charleston, S.C., that opposes government regulation. "I don't know how they'd do it."

Even for the one-third of American households with children, notes Mr. Dyke, decisions about what shows to watch may vary significantly based on the age of the child and the judgment of the parent.

If Congress does write legislation, a major challenge will be coming up with an acceptable – and narrow – definition of excessive violence. It would have to thread a fine line by, say, not allowing "24" to show a scene of a man tortured by having a drill thrust into his back – at least on prime time – but letting the evening news discuss violent crime and allowing stations to air something like "Miami Vice," "Schindler's List," or "Star Wars."

The FCC frames the issue and talks about the aspects of violence that should be discussed – including looking at it in context – but stops short of coming up with an actual definition.

Ever since 1978, the courts have allowed the FCC to regulate indecency on the public airwaves, but even that, say critics, has been problematic since the definition is so open to interpretation and is inconsistently applied.

"They've had a poor record of being able to define indecency and enforce what is and isn't indecent," says Marv Johnson, a legislative counsel for the American Civil Liberties Union. "Now they want to muck about in what is and isn't violent…. The government always tends to use a blunt instrument when it regulates something, rather than a scalpel."

The recommendations – if they were enacted into legislation – would also be a broad departure from past precedent in terms of allowing the FCC to regulate not only the broadcast channels but cable and satellite as well.

In the past, says Professor Calvert, courts have allowed some oversight of broadcast TV because it's considered a public resource. But the FCC has argued that oversight of just broadcast stations is outdated, given the rise of cable, and that broadcast is often pushed into airing more and more graphic violence or more sexually explicit content because of a desire to compete with cable.

When the court upheld the FCC's right to regulate indecency 30 years ago, it mentioned the pervasiveness of broadcast, notes Tamara Lipper, an FCC spokeswoman. Today, cable and satellite are nearly as pervasive as broadcast and the FCC believes that it doesn't make sense to leave cable TV out of the equation, she adds.

Another recommendation that may have slightly more legal traction, since it's content-neutral and would have less bearing on free-speech rights, is the FCC's suggestion that the cable industry be forced to allow "a la carte" purchasing. That way, customers would be able to pick and choose their channels rather than having to buy dozens or hundreds of them in one bulk package. While consumers can currently block certain stations, they still have to pay for all of them.

"There's something fundamentally unfair about parents and families being forced to subsidize bestiality scenes on FX just to get the Disney Channel and Sunday afternoon football," says Mr. Isett of the PTC.

The cable industry has opposed such a change for years, however, arguing that it would increase costs and might force many smaller channels out of business, since there wouldn't be enough demand.