Leading directors like the late Louis Malle have been forced to eliminate artistically
important scenes from their work because of the studios' insistence on obtaining at least
nothing more pejorative and audience-thinning than an R rating.33 Self-censorship will
thus be a predictable and intended effect of the V-chip law.
I have discussed in the previous two sections whether such pressures to self-censor
are justifiable, given the ambiguity of the social science literature, the difficulty of defining
what it is that is supposed to be harmful, and the dangers of reposing discretionary ratings
powers in either program producers themselves or large numbers of industry-employed
functionaries. The point here is that, regardless of the strength of the justifications or the
fairness of the procedures, the inevitable pressures of the ratings system will in many
instances lead to blander, less provocative programming -- less coverage of controversial
but important issues like sexuality, and less artistic freedom.34
V-chips and ratings will do nothing to solve the tough, persistent social problems
we associate with youth: poor education, violence, alienation, high teen pregnancy rates.
American political leaders, however, seem increasingly devoted to the art of making
symbolic gestures while ignoring serious solutions to social problems. V-chips and ratings
are such gestures, but they are not entirely empty ones. For although they will do nothing
to reduce irresponsible sexual activity or violence, they will restrain artistic freedom.
Moreover, they create the illusion that "something is being done," and reinforce the
pernicious notion that information about such complex human phenomena as sexuality
and aggression is better suppressed than examined.
47 U.S.C. §303(x), Public Law 104-104, Title V, §551 (c). The law only applies to TV sets with screens
13 inches or larger, and allows the FCC to alter the requirement consistent with advances in technology. Id., §551(c)(4).
The law provided that if the television industry did not within a year develop a ratings system satisfactory to the Federal Communications Commission, the FCC must "prescribe" one that would identify
"sexual, violent, or other indecent material," and then, "in consultation" with the industry, must establish
rules requiring programmers to transmit the ratings in a manner allowing parents to block rated shows.
47 U.S.C. §303(w). Despite initial protests, the industry responded promptly by setting up a committee
to design a ratings system. See n. 12, infra.
Section 551 (a), Public Law 104-104 ( 1996), published in the Historical and Statutory Notes to 47 U.S.C.
§303(w). Congressional "findings" may or may not be based on accurate empirical evidence, and in any
event are not binding on courts, particularly not in First Amendment cases, where the judicial branch
must make its own judgment about the facts on which the government relies to justify restrictions on free
speech. See, e.g., Sable Communications, Inc. V. FCC, 492 U.S. 115, 129 ( 1989); Landmark
Communications v. Virginia, 435 U.S. 829, 843 ( 1978).
47 U.S.C. §303(w). The section goes on to assure that "nothing in this paragraph shall be construed to
authorize any rating of video programming on the basis of its political or religious content." Id.
A fundamental First Amendment principle is that government cannot suppress ideas because it thinks
them dangerous. See Marjorie Heins, "Viewpoint Discrimination", 24 Hastings Con.L.Q. 99 ( 1996); American Booksellers Association v. Hudnut, 771 F.2d 323 (7th Or.), aff'd mem., 475 U.S. 1001 ( 1985);.
"Violence in the Media: A Position Paper", The Record of The Association of the Bar of the City of New
York, vol. 52, no. 3 ( April 1997), at 283-84 (citations omitted). Reprinted with permission from The
Record of The Association of the Bar of the City L,. New York, copyright 1997, 52 The Record 273,