What Is the Appropriate Regulatory Response to Wardrobe Malfunctions? Fining Stations for Television Sex and Violence

Article excerpt

From industry self-censoring to punitive responses from the Federal Communications Commission (FCC), attempts to manage the content of electronic media have a long history. For example, Elvis Presley on the Ed Sullivan Show raised the issue of "hip-notic gyrations" (i.e., the network refused to show Elvis below the waist) and Sam Peckinpah's movie The Wild Bunch defined "choreographed violence." More recently, there have been similar controversies over the content of Howard Stern's radio programs (now exiled to satellite radio), Janet Jackson's "wardrobe malfunction" during the Super Bowl XXXVIII halftime show, and Pamela Anderson's proposed pole dancing on NBC (ultimately censored by the network) as part of an Elton John extravaganza.

The sex and violent content of television has been well documented (Fisher, Hill, Grube, & Gruber, 2004; Potter & Warren, 1996; Ward & Friedman, 2006) and research suggests that violence and sex content on television has been increasing (Kunkel, Cope, & Colvin, 1996; Kunkel, Cope-Farrar, Biely, & Donnerstein, 2001; Kunkel et al., 2003; Signorielli, 2003) although there are alternative views about patterns of change over time (e.g., Hetsroni, 2007). Violent content in particular has provoked responses from organizations representing public health professionals (Committee on Public Education, 2001). At the same time, industry concerns about sex and violence have motivated network discretion and voluntary regulation via various types of content warning labels (Bushman & Cantor, 2003; Hemphill, 2003; Hoy & Andrews, 2006).

From the governmental perspective, sex and violent television content has raised important First Amendment issues since the beginning of television broadcasts (Hoerrner, 1999; Potter & Warren, 1996) and continues to do so (Fallow, 2004). The FCC regulates sex on television through the provisions of the United States Code, Title 18, Section 1464 (2006) that indicates "whoever utters any obscene, indecent or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both." While taking into account the First Amendment and Section 326 of the Communications Act prohibiting FCC's censorship of programs, the FCC prohibits broadcasting indecent and profane material between 6 a.m. and 10 p.m. There is a regulatory asymmetry vis-a-vis sex and violence: The FCC has no authority to regulate television violence even though violence is included in voluntary content warnings (Federal Communications Commission, 2006; Schneider, 1994-95).

Why is Media Sex and Violence an Issue?

Virtually all academic research on the effects of sex and violence as well as associated legal commentary (e.g., Edwards & Berman, 1994-95) is motivated by a concern for the effects of media sex and violence on children and young adults. For example, the 2001 report Media Violence (Committee On Public Education) was sponsored by the American Academy of Pediatrics, Anderson et al.'s 2003 comprehensive summary of research on violent media content on attitudes and behavior is entitled "The Influence of Media Violence on Youth," Potter and Warren's review (1996) of proposals to limit exposure to violent content is entitled "Considering Policies to Protect Children from TV Violence," and Wiley and Secrest's 2005 summary of regulatory actions and proposals is focused on children and young adults. This concern is no doubt due to the perception that children and young adults are developmentally susceptible to negative attitudinal and behavioral cues based on media sex and violence, a type of "media effect" to which adults are perhaps not so vulnerable.

This assumption of negative media effects on children and youth tends to be corroborated by research studies looking at particular levels or types of sex and violence media exposure (either experimentally induced or naturally occurring) and outcomes such as aggression (Huesmann, Moise-Titus, Podolski, & Eron, 2003), desensitization (Funk, Elliot, Urman, & Flores, 1999), ethnic self-concept (Rivadeneyra & Ward, 2007), normative beliefs about sexual activity (Chia & Gunther, 2006), the extent and timing of sexual intercourse (Aubrey, Harrison, Kramer, & Yellin, 2003), as well as intentions to have sex and a range of sexual behaviors (L'Engle, Brown, & Kenneavy, 2006; Somers & Tynan, 2006). …