BOOKS AND ARTS AUGUST 21, 1995
Abandoned in the Wasteland: Children, Television, and the First Amendment
by Newton N. Minow and Craig L. LaMay(Farrar, Straus and Giroux, 237 pp., $20)
When Senator Dole criticized Hollywood for producing "nightmares of depravity," was he speaking for many Americans, or for a narrow far-right fringe? Recent polls strongly suggest the former. Over 80 percent of Americans want warning labels on records. Over 80 percent favor voluntary self-restraint by entertainment companies; two of every three Americans favor more restrictions on what is shown on television; slightly fewer, but a strong majority, say that they would favor more restrictions on movies and on lyrics of popular music. Over 70 percent agree with Senator Dole.
How do these results fit with American traditions, and in particular with the tradition of support for a free popular culture? Historically, Americans have alternated between two pictures of the mass media. The first is based on the metaphor of an unrestricted marketplace. If people want silly situation comedies, or violent programs, or bizarre talk shows, or discussion of sensationalistic sex scandals, then that is what they should get. Marketplace thinking has foundations in the great free speech opinions of Oliver Wendell Holmes Jr. ("the best test of truth is the power of the thought to get itself accepted in the competition of the market"), but it finds its most vivid image in the words of Mark Fowler, the head of the Federal Communications Commission (FCC) under President Reagan: "Television is just another appliance.... It's a toaster with pictures." The Federal Communications Act requires the FCC to regulate in the public interest; but for marketplace enthusiasts the public interest is whatever interests the public.
The marketplace model competes with a different understanding, with roots in the writing of James Madison, the principal thinker behind the First Amendment. For Madison, that amendment is about public deliberation and democratic self-government, not about unrestrained economic markets. In complaining about the Sedition Act on constitutional grounds, Madison did not quote Adam Smith or anticipate Milton Friedman. Instead he emphasized the placement of political sovereignty in the people:
[T]he right of electing the members of the Government constitutes ... the essence of a free and responsible government. The value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing the merits and demerits of the candidates respectively.
On this view, the First Amendment is associated with public discussion about public issues. It has educational and aspirational functions. Thus Justice Brandeis, the leading judicial exponent of the Madisonian view, wrote--in words altogether foreign to marketplace thinking--that "the greatest menace to freedom is an inert people" and that "public discussion is a political duty." Thus Alexander Meiklejohn, the most influential twentieth-century philosopher of free speech, explicitly linked the First Amendment with democratic self-governance and insisted that the First Amendment "does not intend to guarantee men freedom to say what some private interest pays them to say for its own advantage." If the marketplace fails to serve democratic aspirations, good Madisonians think that correctives are in order. Through much of its history, the FCC has had Madisonian aspirations, as reflected above all in its attention to the needs of children and in the "fairness doctrine," which required attention to public issues and an opportunity to speak for diverse views.
It would be a big stretch to say that his attack on Hollywood qualifies Senator Dole as a Madisonian. But his speech has a clear and (so far as I can tell) unnoticed antecedent from an unmistakable Madisonian, and a liberal one to boot: the famous speech in 1961 by Newton Minow, President Kennedy's chairman of the FCC, in which he described television as a "vast wasteland." In attacking the mass media for its violence, its banality and its failure to educate, Minow was celebrated by many liberals, partly because he spoke in Madisonian terms. He urged that the speech market be evaluated on aspirational grounds. Does it really communicate ideas? Does it deal with serious issues in a serious way? Does it inform? Does it provide education for children?
Minow said that all these questions should be answered "no," and he urged that the "no" answers suggested a big problem, whether or not industry was responding to market forces. "The power of instantaneous sight and sound is without precedent in mankind's history. This is an awesome power.... And it carries with it awesome responsibities.... Ask not what broadcasting can do for you--ask what you can do for broadcasting." In his new book, written with Craig LaMay, Minow elaborates the position outlined in his "vast wasteland" speech, with particular reference to the needs of children.
The book is short and its argument is simple. From the inception of commercial television, members of the broadcasting industry have been seen not as ordinary businesses, but as trustees for the public interest. Usually broadcasters acknowledged their public responsibilities. Early commercial broadcasting included self-conscious "public-service visionaries," producing such programs as "American School in the Air" and "The University of Chicago Roundtable" (my personal favorite). In 1930, William Paley, the chairman of CBS, promised a Senate committee that no more than 30 percent of his network's programming would ever be sold, and that the balance would be used for unsponsored educational and noncommercial programs. Two decades later Pat Weaver, the president of NBC, depicted a bold future in which television, by carrying out its public duties, could "create a new stature in our citizens."
According to Minow and LaMay, it was only in the 1950s that commercial greed began to take over and aspirational goals began to dim. Hence Minow's famous and far from dated speech (reprinted as an appendix here), in which he said to the National Association of Broadcasters:
I invite you to sit down in front of your television set. . . I can assure you that you will observe a vast wasteland. You will see a procession of game shows, violence, audience-participation shows, formula comedies about totally unbelievable families, blood and thunder, mayhem, violence, sadism, murder, western bad men, western good men, private eyes, gangsters, more violence and cartoons. And, endlessly, commercials--many screaming, cajoling and offending. . . . Is there one person in this room who claims that broadcasting can't do better?
The speech got a lot of attention, but it didn't much affect commercial practices. From 1961 to the present, the profit motive produced the same kind of programming, with less in the way of westerns and more in the way of talk shows featuring very strange people.
For Minow and LaMay, a main culprit of the whole story is the FCC of the 1980s, which engaged in rapid deregulation, producing an explosion of market-driven programming, especially for children. Thus it happened that many shows for children turned out to be based on products. (Many such shows were actually full-length commercials.) Minow and LaMay think that this is a grim outcome for adults and children alike. Rejecting marketplace thinking, they insist on a difference between "the public interest" and "what interests the public." They think that the public interest, properly understood, requires educational and high-quality programming as distinguished from prurient violence, sensationalism and sex scandals. Aside from children's broadcasting, they do not call for governmental action, but they do suggest that the original vision of television was not thought to be inconsistent with the First Amendment and that it is much better than the market-driven status quo.
With respect to children, Minow and LaMay claim that there are serious problems calling for creative governmental response. In their view, children do not have enough good programming. Television is a big presence in the lives of preschoolers, who are exploited through highly manipulative advertising. (Thus Fox's enthusiastic claim for prospective advertisers: "We deliver more young viewers than anyone.") Children also see far too much programming that may be bad for them, above all because it is violent. The average American preschooler watches more than twenty-seven hours of television per week, and there are about twenty to twenty-five violent acts per hour in children's programs, leading the average preschooler to see about 600 violent acts per week.
Minow and LaMay say that there is an expert consensus to the effect that exposure to violent programming can have serious consequences. It can produce fear, anxiety, aggressive behavior and even violence. And, by way of remedy, they offer four reforms. All of them are pretty modest in view of their broad indictment of children's programming, but most of them have pretty uncertain prospects in light of current congressional enthusiasm for deregulation (on which more in a moment).
First, they argue that ordinary broadcasters should be required, as a condition of obtaining a license, to provide at least one hour per day of programming to "serve the educational and informational needs of children" 12 and younger. Stations failing to do this must make a contribution consisting of 1.5 percent of gross advertising revenues to the Corporation for Public Broadcasting, which is to use the sums to produce and distribute programming designed to educate and to inform children. Second, they urge that commercial advertising be banned on programming specifically designed for preschool children. Third, they say that each franchising authority for cable television must establish an "education channel" for preschool children. Funds for the channel would be obtained by 1.5 percent of the franchise fee imposed on the cable system. Fourth, every television should come equipped with "circuitry" designed to permit viewers to block the display of channels, programs and time slots, so that parents would have the power to control the programming that comes into the home. (This idea has caught the attention of Congress and was recently endorsed by President Clinton.)
Here, then, is Minow and LaMay's argument in a nutshell: a description and defense of the "public interest" ideal; a set of claims about the effects of television on children; and a set of proposals for reform. Their argument raises many questions. Let us begin with the Constitution, and then discuss matters of policy.
The book's proposals don't raise the most fundamental issues about marketplaces and Madison. They have the virtue of showing that some initiatives, by facilitating individual choice, would be pretty much compatible with both conceptions. But the proposals do raise some nice First Amendment questions. The "circuitry" requirement is probably the easiest, at least if it is cheap to install. Its effect is merely to facilitate control over the television set. The neutrality of the requirement is crucial: courts wouldn't hesitate to strike down a provision that specifically allowed people to screen out speech with politically disapproved content--say, the Democratic Convention, or Rush Limbaugh, or speech critical of the government. Minow and LaMay rightly urge a content-neutral approach to the principle of parental control: trickier issues would be raised if government specified that the circuitry should be designed to screen out violence or sex.
From the constitutional point of view, the "education channel" idea is intriguing. Franchising authorities may not be speakers, but the requirement is clearly based on the content of speech, and it's troubling if the government mandates that channels contain governmentally preferred content. The Supreme Court would not permit a law requiring a "Democratic Party" channel, or a "Traditional Values" channel, or a "Feminism" channel or a "National Defense" channel. For Madisonians and marketeers alike, laws that favor a particular point of view are almost automatically invalid. And laws that favor speech of a certain content are also troublesome if they appear to be based on favoritism of a certain viewpoint.
Even if it is neutral with respect to point of view, regulation of content should be disfavored. Imagine a government-required science fiction or classical music channel, either of which would raise serious constitutional problems. In this light, it would certainly be possible to challenge the "education channel" on First Amendment grounds. But the Court has said that government has a good deal of power to protect the special needs of children, that it can promote programming that helps children and discourage (within imprecisely defined limits) programming that harms them. So long as government is not prescribing a viewpoint, the proposal for an education channel seems acceptable from the constitutional point of view.
On broadly similar grounds, the ban on commercial advertising aimed primarily at preschoolers would probably be upheld. The government already bans tobacco advertising on television, and the ban is widely regarded as legitimate, partly because advertising is far from the Madisonian core of the First Amendment. It would be a less intrusive and thus acceptable step to ban commercials for children under the age of 6. Note, however, that the ban is quite vague and that this step may be counterproductive from the standpoint of policy: a ban on advertising is a good way to discourage the programming in the first place.
Now consider the requirement that every broadcaster either provide a "substantial amount" of educational programming for children or pay a certain sum to the Corporation for Public Broadcasting. Here the target of regulation is not just franchisers, and here there will be some foreclosure of choices of both children and adults, many of whom might well prefer, at the relevant time, to see something other than what government mandates. But this provision should probably be upheld as well. It does have a degree of flexibility with the "buy out" option. It would not apply to cable stations. It doesn't forbid or require any particular viewpoint. It is notable in this regard that many other countries do something of this general sort, with Australia abandoning market forces in favor of a nonprofit foundation producing children's programming, the BBC offering about 840 hours of children's programs per year, Sweden giving about 12 percent of broadcast time to children and Japan using television to supplement classrooms, with large public investments in children's programming.
So much for constitutionality. Now let us turn to policy. Minow and LaMay's argument raises many troublesome issues from the pragmatic point of view. Some of the key terms are pretty vague: "education," "specifically designed for" preschool children, "educational and informational needs of children." As the authors recognize, similar terms in the pitifully ineffective Children's Television Act of 1990 produced an evasive and weird response from broadcasters, who claimed that 1950s cartoons could qualify as "educational." Moreover, the funding and the administration of the "education channel" are left murky. Why shouldn't taxpayers have to pay for any such channel, or for any education hour on the networks? This question isn't squarely addressed. Deregulation can be a good thing insofar as it expands the range of options. And perhaps one hour of mandatory children's programming per day is too much.
But these are matters of detail. There are more basic questions involving the responsibilities of parents, especially in a period of rapidly changing technology; the value of private choice; and existing evidence about the effects of the media on children and culture.
Parents first. Of critics of the mass media, including Minow and Dole, it is often asked: Isn't it the job of parents, rather than the job of government, to control what children see? With so many outlets, can't parents ensure that children see whatever the family wants? Minow and LaMay don't entirely answer these questions. Basic responsibility for children, of course, does lie with families, not with the FCC. And with dozens of stations, parents may be able to find good programming for their children. Naturally parents should monitor children's choices, and (as everyone emphasizes) families should watch television together.
And yet it does not follow that government has no legitimate role in encouraging better programming and in offering modest regulatory initiatives. The amazing proliferation of stations is an incomplete answer. (Even now only about 60 percent of Americans have cable and, outside of PBS, good programming for children is rare.) Some parents simply will not control what their children watch, and children shouldn't be harmed because of the negligence of their parents. In any case, let's be realistic. Parents cannot always control what their children watch even if they try. In fact, it is often children who are most vulnerable to bad television, and least likely to see good television, whose parents are least likely to help. If government can help promote parental control or otherwise help children, it should do so. Surely government can take steps to make it easier for parents to do what they ought to do, and that is the purpose of the "circuitry" requirement. To the extent that Minow and LaMay are trying moral suasion, and speaking of modest regulation, their argument is not weakened by the possibility of parental control.
What about private choice? Minow and LaMay reject the marketplace model, which uses the idea of "choice" as its foundation; and insofar as the Madisonian ideal prizes education and political deliberation, it seems to deny the importance of choice. Many people, after all, don't like political deliberation, or even hate it, and would prefer to relax with situation comedies or talk shows. Can't people who don't like certain programming just turn the channel? In an area of nearly limitless options, why should government have any regulatory role? Isn't the "public interest" idea anachronistic, illiberal and unacceptably paternalistic?
Minow and LaMay do not offer full answers to these questions, which have gotten renewed attention in recent debates over rap music and Hollywood. But the idea of "choice"--or consumer sovereignty, in the economists' phrase--has many problems in the context of programming for children. Children are not permitted to do as they "choose," because the whole notion of "choice" requires certain preconditions, including a certain degree of maturity. Insofar as children are the subject of discussion, Minow and LaMay are on firm ground.
But there is another, more fundamental problem with the rhetoric of choice. The particular choices that people make in the market domain should not be identified with the general idea of "choice" itself. People's choices are a function of the role in which they find themselves. They make choices as consumers; they also make choices as citizens. In their capacity as citizens, they may attempt to support aspirational or altruistic goals that depart from their choices as consumers. Thus people may support anti-discrimination laws even though they are far from race- or sex-neutral; they may urge environmental protection even if they do not, in their market behavior, do anything for the environment; and they may want to provide good programming even though their own consumption choices lead to dumb situation comedies. If, in the democratic arena, people favor--or "choose"--measures to ensure better programming for children, there should be no objection from the standpoint of choice. At least this is true if the regulation does not favor a particular point of view and if it does not much limit the range of options.
The Madisonian view of free speech throws enthusiasm for market choices into question. (Recall Brandeis's suggestions that political discussion is a duty and that the greatest menace to liberty is an inert people.) And citizens in a democracy recognize that existing "choices" do not fall from the sky, that our choices and preferences can be shaped by social forces, including the mass media. Perhaps our choices are being affected in an unfortunate way. If this is so, complaints by private citizens and public officials are perfectly appropriate. They are an important and legitimate part of public debate.
What about the actual evidence? Do the mass media affect behavior? Does television hurt children? No simple answers would make sense. As Minow and LaMay acknowledge, it would probably be impossible to demonstrate a clear causal connection between exposure to violent programming and real-world violence and harm. Not because the connection doesn't exist, but because of the limits of social science. Laboratory experiments show that exposure to violent programming increases both fear and aggression; but these results may not map onto actual behavior. If we turn to the evidence of the real world, and try to draw correlations by looking at different periods and different nations, we will run up against a serious obstacle, which is that it is very hard to control for other variables. If America is more violent than Japan, and American children see more violent television than Japanese children, it hardly follows that television violence is responsible for violence in America. Minow and LaMay say a lot about high rates of violence in American life, but they cannot attribute these high rates to the mass media.
Still, it isn't necessary to demand proof of causation before encouraging greater responsibility on simple prudential grounds. (People spend a lot of money to buy insurance.) Acknowledging the limits of the evidence, many official and unofficial bodies--including the surgeon general, the National Institute for Mental Health, the American Medical Association and the American Psychological Association--have found a link between exposure to media violence and aggressive behavior. That is reason enough for concern. And real-world violence is not the only problem: parents and even governments are entitled to be troubled if children are taking pleasure from the observation of violent acts, which is a bad thing in itself.
Minow and LaMay insist that media violence is a problem, but for the most part they do not urge regulatory solutions, and on both counts they are probably on the right track. Any aggressive regulatory response would be likely to be far too crude, sweeping up materials that government should not control. In fact, the authors' own proposals, even if modest, are unlikely to get serious attention in Washington, now or soon. The circuitry requirement, which is receiving much attention in the capital, is an exception; but this and other modest initiatives are about as far as lawmakers will now go.
In such a climate, this book might be seen mostly as a plea to broadcasters to try to do better and, perhaps, a request to Congress not to eliminate PBS. (It is one of the most troubling inconsistencies of some conservatives that they attack commercial media for responding to market pressures and then try to destroy public television. Perhaps they simply want to protect conventional morality, a goal that is quite foreign to Madisonians.) Taken in this way, Minow and LaMay's book deserves a lot of attention. We should distinguish, much more often than we do, between moral exhortations and calls for regulation. In the 1960s, many liberals, arguing on behalf of individual rights, pressed hard on the distinction between what people have a right to do and what it is right to do. Liberals said that people often have a right to do things that it is not right to do, but it is equally important to emphasize a neglected corollary: that people are sometimes wrong to do what they have a right to do.
This is part of Minow and LaMay's project, and it links them with many other critics of the mass media, not excluding Senator Dole. Consider in this connection the reflexive use of the word "censorship" when the media is under attack. Minow and LaMay offer many examples, which are simultaneously depressing and hilarious. A Time-Warner executive complained that a rap singer's right of free speech was endangered by the expression of public disgust at his song about killing the police; "NBC Nightly News" responded to criticism of its showing an on-camera murder of a Miami woman with the correct but irrelevant statement that the broadcast was protected by the First Amendment; and countless people cried censorship in response to the criticisms of the entertainment industry by William Bennett and Robert Dole, neither of whom urged government regulation.
Members of the mass media should not confuse the question of what the law allows them to do with the question of what they ought to do. They should not invoke the word "censorship" to stop people from discussing their performance. There is a parallel in the environmental arena, where a truly dazzling number of companies have taken creative steps to reduce environmental harm, even at the expense of profits and even if they had a "right" to continue to pollute. In reaction to public pressure to reduce environmental degradation, it would be hopelessly unresponsive for companies to assert their "rights," even when there is uncertain empirical evidence linking pollution to real harm. Members of the mass media are in a roughly similar position. They should do a lot better, especially when it comes to children.
Which brings us back to Senator Dole. His attack on Hollywood was no mere rerun of Minow's "vast wasteland" speech. Unlike Minow, Dole is not a supporter of public broadcasting, which provides the best programming for children. Unlike Minow, Dole was highly partisan, speaking for political advantage and offering no criticism of violent movies starring prominent Republicans such as Arnold Schwarzenegger and Bruce Willis. And yet there is an unmistakable overlap between Dole's Hollywood speech and Minow's book, and there is an unmistakable overlap, too, between Dole's speech and concerns expressed not only by Minow, but also by Bill Clinton, Bill Bradley, Paul Simon and many others. Minow and LaMay have done a real service by identifying the limits of free markets in free speech, by recalling Madisonian aspirations and by showing (as the campaign of 1996 begins) that concerns about the effects of the mass media on children are not limited, and should not be limited, to the far right.
Cass R. Sunstein teaches at the University of Chicago and is the author of Democracy and the Problem of Free Speech (The Free Press).
By Cass R. Sunstein