Cynthia Rathwell is a corporate lawyer and a member of the Communications Group at the Toronto law firm McMillan Binch.

The following is the first part of a two-part article comparing the American and Canadian approaches to regulating the depiction of violence on television. The first part deals with the American experience. Part two, dealing with the Canadian experience, will be presented in the next issue of Playback.

The notion that Canadians approach conflict resolution and new societal challenges in a less confrontational manner than their American neighbors is a well-established point of national pride.

Praise for the Canadian disposition begins early in a young Canadian’s education. There are repeated reminders in school that the semantics employed in the constitutions of the two countries indicates the differences in national characters. While the Americans sanction ‘life, liberty and the pursuit of happiness,’ the Canadian Constitution recognizes the need for ‘peace, order and good government.’

The essential difference between Canadians and Americans rooted in such attitudes is currently being manifested in the varying approaches being taken to the issue of the portrayal of excess violence on television.

While the American government and television industry seem poised for a constitutional battle on the issue, the crtc and the Canadian industry have effected a compromise that will result in the prompt implementation of rules respecting the broadcast of television violence without polarizing the public regulator, private industry and the viewing public.

The American

experience

In the u.s., the debate surrounding the regulation of violence on television has escalated into a large-scale confrontation, the likely result of which will be costly and protracted constitutional litigation.

The American people and government have long been concerned about the effects of violence in the media, particularly on young people. Recently, the proliferation of violent programming (caused in part by increased competition in the television industry among traditional broadcasters and cable operators and the perception that violent programming sells), coupled with a large number of academic studies linking television violence with crime have spurred the formation of numerous public interest groups calling for restrictions upon violent programming.

The activities of these groups have, in turn, created a feeding frenzy at both the executive and legislative levels of government. Politicians are heeding the political will of the electorate by taking aggressive stands on the issue.

A number of laws have been proposed and these encompass such ideas as setting up a presidential commission to draft ‘solutions’ to the problem of excessive tv violence, establishing an 800 number to which viewers can telephone complaints which will be considered at licence renewal time, publishing lists of broadcasters and sponsors of violent programs, creating a violence-free period each day, and even installing computer chips in each television which parents can use to block programs encoded to indicate the presence of a certain level of violence.

Initially, the u.s. government seemed content to allow the television industry to regulate itself (albeit ‘on cue’) by suspending the application of American anti-trust laws for a period of three years to enable industry players to establish common violence standards. As a result, the four networks (abc, cbs, nbc and Fox) have agreed to certain joint ‘Standards for the Depiction of Violence on Television’ and that certain programming will carry the parental advisory, ‘Due to some violent content, parental discretion advised.’

This self-regulation has, however, satisfied neither lawmakers nor the Clinton administration, and Attorney General Janet Reno recently encouraged Congress to legislate upon the issue if the industry does not engage in more self-regulation.

U.S. constitutional law

The Attorney General has stated that she believes that certain legislation curtailing the broadcast of violent programming would not run afoul of the United States First Amendment (guaranteeing freedom of expression) if the law pays heed to the development of constitutionally acceptable laws which now exist respecting the broadcast of indecent programs, established by the Federal Communications Commission and the courts.

Historically, broadcasters have not enjoyed an unrestricted right to freedom of expression. The airwaves have been viewed as a limited public resource (a conception that may require re-evaluation in light of the proliferation of cable and the advent of digital compression). As such, broadcasters have been treated as a public trustee subject to government regulation by the fcc in the public interest.

Indecency law

The broadcast of indecent materials in the u.s. has been prohibited by law since 1927. Juxtaposed to this prohibition is a section of the u.s. Federal Communications Act which states that ‘no regulation or condition shall be promulgated or fixed by (the fcc) which shall interfere with the right of free speech by means of radio communication.’

Prior to 1978, the fcc imposed penalties for indecent broadcasts on a case-by-case basis using the public trust idea as a standard. The regulator generally did not analyze what the objective standard of indecency was and, as a result, there was a chilling effect on the speech of broadcasters who were reluctant to gamble given the uncertain standard.

In 1978, the u.s. Supreme Court, in a case known as fcc vs. Pacifica, responded to an fcc order that a broadcast of George Carlin’s Filthy Words at 2 p.m. on a New York City radio station was indecent and illegal. While the fcc did not desire an outright ban on indecent broadcasts, it limited the legality of such broadcasts to a time period when children would not be listening. The Supreme Court upheld this regulatory ruling on the grounds that broadcasting was a pervasive medium to which children had access. The court also set out an objective test of what constituted ‘indecent’ material.

In response to Pacifica, the fcc limited the broadcast of indecent materials only prior to 10 p.m. By 1989, however, the fcc began both to broaden the definition of ‘indecent’ material set out in Pacifica and to expand its notion of the times at which children were likely to be in the audience (midnight to 6 a.m. became the acceptable ‘safe harbor’).

In a subsequent 1988 case called Action for Children’s Television vs. fcc (‘act i’), the D.C. Circuit Court of Appeals found the safe harbor period to be too limited and completely unsubstantiated by the fcc. As a result, the court instructed the fcc to substantiate its definition of the safe harbor period.

The Court of Appeals, however, upheld the broader definition of indecency, holding that even though indecent material may have significant social value, such material may be offensive to children and the state maintains extraordinary power to protect children’s interests.

In 1989, Congress attempted to legislate a complete, 24-hour ban on indecent materials and the fcc began to implement the ban. The D.C. Circuit Court of Appeals stayed the ban pending further judicial review. The Court of Appeals then reheard argument under act i respecting the appropriate time period for the safe harbor.

The fcc now argued that a 24-hour ban was appropriate because there was a risk that children may be watching at all times and that ‘neither time channeling [sic] nor ratings and warning devices permits effective parental control…and technologies that may permit control are not currently available.’ The court again rejected this line of argument and again asked the fcc to revisit the definition of safe harbor.

From the case law on indecency, it is foreseeable that valid American law regulating the depiction of violence must have the following qualities: (1) clear definitions of varying degrees of violence, some types of which are completely acceptable for children’s viewing, some of which are acceptable with some restrictions and some of which are completely unacceptable; and (2) a well-substantiated definition of a ‘safe harbor’ period during which violence completely unacceptable for children may be broadcast.

As violence is arguably an inherent aspect of both history and current everyday life, a potentially creative force and a key component of much creative expression (which usually focuses on conflict and resolution), defining ‘prohibited violence’ in legislation that will survive constitutional scrutiny will be more difficult than defining ‘indecency.’

As a satisfactory compromise among industry players, the regulator, government, the courts and the public seems unlikely at this time, it is possible that the Americans are only now at the beginning of a long, litigious road to limiting violence on television.

Ironically, one of the primary forces underlying the tenacity of the television industry in resisting efficacious, voluntary codes, regulations and legislation – the desire to maintain revenues due to a perceived public appetite for violent programming and higher advertising revenues – may well be the non-legislative force that leads to less violence on television.

American advertisers are exhibiting less of a willingness to sponsor excessively violent and sensationalistic programming. Whether such sentiments are sincere or are also a pre-emptive action in response to threatened legislation which would affect the sponsors of violent shows is uncertain. Nevertheless, some programmers have taken the cue and have reduced the amount of violent content and programming devices such as re-enactments of violent crimes.

In a nation whose priority is liberty of the individual, the market may ultimately be viewed as the only legitimate force of change.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice on any particular situation.)