Violent television programming is speech protected by the First Amendment. At the most fundamental level, any attempt to regulate such protected speech will fail because it will be impossible to define “impermissible” depictions of violence.
The [FCC's Violence Report to Congress] recommends three legislative responses: time channeling, banning some content during certain hours; a mandatory, government-run ratings program to replace the current voluntary system; and mandatory unbundling, or à la carte cable/satellite programming.
To the extent that the First Amendment allows regulation of speech, it requires an extremely clear line between the permitted and the forbidden. The FCC report itself notes that drawing such a distinction in a constitutionally permissible manner would be “challenging.” But in my view, any attempt to come up with a constitutionally acceptable definition of “impermissible” television violence is more than challenging; it is hopeless.
Moreover, this vague prohibition would give regulators and prosecutors too much discretion to shape the content of free expression.
And even if one believes that the First Amendment allows legislatures to limit the availability of violent content for the sake of young children—a conclusion I believe is inconsistent with constitutional principle and Supreme Court precedent—it is undeniable that the First Amendment fully protects the rights of adults and older children to view televised violence, and the concomitant rights of broadcasters, cable/satellite operators, and artists to formulate and express that content.
The FCC report suggests that none of these concerns applies because the government can regulate depictions of violence in the same way it can regulate indecency, and others have suggested analogizing regulations of televised violence to obscenity laws. But depictions of violence cannot properly be equated or analogized to indecency or obscenity. Changes in technology have made it increasingly easy for parents to block content, household by household, program by program, child by child. Indeed, technological advances allow parents to regulate television content in any fashion that they desire.
The First Amendment forbids more-intrusive, centralized, one-size-fits-all regulations when such less restrictive, more individualized, and more narrowly tailored means are available.
Edited written testimony of Harvard Law Professor Laurence Tribe, prepared for delivery before the Senate Commerce Committee. Tribe was hired by media trade associations to help make their case against regulating TV violence.