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TO CHILDREN:

A REVIEW OF SELF-REGULATION AND

INDUSTRY PRACTICES IN THE MOTION PICTURE,

MUSIC RECORDING & ELECTRONIC GAME INDUSTRIES

APPENDICES A - K

REPORT OF THE

FEDERAL TRADE COMMISSION

SEPTEMBER 2000

Federal Trade Commission

Robert Pitofsky,

Sheila F. Anthony

Mozelle W. Thompson

Orson Swindle

Thomas B. Leary

Chairman

Commissioner

Appendix A

A REVIEW OF RESEARCH ON

THE IMPACT OF VIOLENCE IN ENTERTAINMENT MEDIA

This Appendix reviews scientific research on the effects of entertainment media violence

on children. The research on this topic is extensive, yielding a large number of articles that

describe the results of various studies. The great majority of these studies focus on the effects of

television, which has been the dominant form of media entertainment over the past 50 years.

Relatively few have looked directly at the effects of the products at issue in the Commission’s

study: motion pictures, music recordings, and electronic games – though, as described below, the

body of research on electronic games is growing. Similarities in program format suggest that the

television research results are most relevant to movies, while their relevance to music and

electronic games is less clear.

A majority of the investigations into the impact of media violence on children find that

there is a high correlation between exposure to media violence and aggressive and at times

violent behavior.1 In addition, a number of research efforts report that exposure to media

violence is correlated with increased acceptance of violent behavior in others, as well as an

exaggerated perception of the amount of violence in society.2 Regarding causation, however, the

studies appear to be less conclusive.3 Most researchers and investigators agree that exposure to

media violence alone does not cause a child to commit a violent act, and that it is not the sole, or

even necessarily the most important, factor contributing to youth aggression, anti-social attitudes,

and violence.4 Although a consensus among researchers exists regarding the empirical

relationships, significant differences remain over the interpretation of these associations and their

implications for public policy.5 This review does not attempt to resolve those issues or to

provide an independent evaluation of the merits of particular studies; rather, this review seeks to

provide background information and a current survey of the principal research findings regarding

the impact of media violence.

The review proceeds in four parts. Section I provides background information useful for

understanding the empirical literature and the relevant policy issues. Section II surveys research

into the impact of televised violence. Section III examines the results of more directed research

on how different kinds of programming content can influence the aggressive tendencies of

youthful viewers. Section IV reviews studies dealing with the impact of electronic games that

contain violent content.

The study of media violence is necessarily intertwined with more general research on the

causes of violent behavior. The Surgeon General is preparing a report, to be completed by the

end of 2000, on the various risk factors and developmental markers that have been connected

through epidemiological research with youths who commit violent acts.6

BACKGROUND INFORMATION

Definitions of Media Violence Used by Researchers

Both “media” and “violence” are defined by researchers dealing with the entertainment

media in a variety of ways.7 Most of the studies concentrate on either television or movies,

although an increasing amount of research attention is being directed toward the impact of

violent content in music and electronic games.

Researchers differ significantly in the kinds of violent content they employ in their study

of media effects. Experimental studies allow for the greatest control over media content.

Investigators have much less leeway for studies based on surveys of individual characteristics,

because “exposure” is defined in terms of a subject’s past viewing preferences, as revealed by the

survey.8 When relevant, this Appendix provides the particular definitions used in the research

being discussed.

Theoretical Pathways from Media Violence to Real World Violence in Youth

Social learning theory has guided a great deal of research on social behavior. Huesmann

and Eron (1986) identify three psychological processes through which exposing a child to

excessive media violence can encourage aggressive behavior: 1) observational learning:

children learn to behave aggressively by imitating violent actors on TV, just as they learn

cognitive and social skills by imitating parents, siblings, peers, and others; 2) attitude change:

the more TV a child watches, the more accepting the child becomes of aggressive behavior; and

3) scripts: social behavior is controlled to a great extent by cognitive scripts and strategies that

have been stored in memory and are used as guides for behavior.9 Television shows can be a

source of such scripts. A child who repeatedly watches TV characters behaving in a violent way

may store this as “script” to be used when facing similar situations.10 These same linkages, of

course, also describe the ways in which media can encourage pro-social behavior. 11

Types of Studies Conducted by Researchers12

In general, researchers employ three different techniques to study the impact of media

violence on children. They are as follows:

Experimental Studies: Subjects in experimental studies are randomly assigned to exposed and

control groups. Children in the exposed group are shown violent television programs or movies,

while the control group is shown nonviolent programming or no programming at all.

Investigators then observe the level of aggression exhibited by children in each group after

exposure to the selected media. Effects of the violent media are estimated as the increase in

aggression exhibited by the group watching the violent program compared to those who did not.

Indices of aggression are limited by practical and ethical constraints. One frequent approach is to

place both groups of children in a room with a Bobo Doll, a large inflated plastic figure.

Aggression is measured by the degree to which the children hit the Bobo Doll.

Correlational Analysis: In correlational analysis, investigators obtain information from

questionnaires administered to youthful subjects regarding their television watching activities

and various self-reports of aggressive behavior, sometimes including criminal histories. They

also typically collect additional background information on the subjects that also may be linked

to aggressive activity. Researchers then use statistical analysis to identify relationships between a

subject’s preference for violent programming and his or her aggressive tendencies. These kinds

of investigations are called “correlational” because of the difficulty in discerning the direction of

the relation between media violence and aggressive behavior: does the watching of violent

programming lead to aggressive behavior, or does aggressive behavior lead one to seek out media

with violent content?

Event Studies: The third major class of empirical research attempts to combine the strengths of

both experiments and surveys by analyzing the impact of an outside event that leads to greater

exposure of violent programming – typically, the introduction of television into an area – on

various indices of aggression and violence in that community. Ideally, this approach takes the

form of a “natural experiment” where real world indices of violence in the community into which

television is introduced are compared to control communities where television had already been

available.

II.

RESEARCH FINDINGS: TELEVISION

This section outlines the key research findings regarding the general impact of televised

violence on young viewers and how these results have been interpreted.

Results of the Empirical Research

Experimental studies

A majority of experimental investigations undertaken in the laboratory report that

exposure to violent programming leads children to act more aggressively.13 This is true for a

wide variety of settings and outcomes. Violent television programming has been found to

increase a child’s tendency to fight with playmates, and to hit inanimate objects such as a Bobo

Doll.14 One study reported that exposure to violent films led to an increase in blood pressure

levels among college students.15 The kinds of violent media used in the tests vary widely, from

naturalistic horror to fantasy cartoons.

The strength of the experimental method lies in its ability to attribute causality more

unequivocally than other research methods where subjects cannot be assigned randomly to

exposed and control groups. As a result, most researchers conclude that violent programming

does, in a variety of experimental settings in the laboratory, lead children to act more

aggressively.16 At issue, however, is the applicability of these results to more realistic settings.

Comstock and Paik (1991) remark:

The experimental setting for teenagers and young adults departs from the

everyday in the perceptions of the subjects, in the brevity of the television

exposure, in the absence of the possibility of retaliation for aggression, in the

exclusion of competing and countervailing communications, and in the criterion

of immediacy of the measure of effects.17

Also, critics point to a variety of potential biases stemming from the way most

experiments are conducted. Freedman (1994), for example, hypothesizes two alternative

explanations for the finding that violent programming tends to stimulate aggressive behavior in

youthful subjects: First, violent programs will tend to get subjects more excited than a quiet

neutral film, so subjects will respond aggressively in either a pro- or an anti-social way.18

Second, youthful subjects tend to respond to what the researcher wants them to do.19 Therefore,

Freedman does not find it surprising that subjects will, after watching a film where the actors hit

each other, go into the test room and hit their playmates or the Bobo Doll.20 Similar concerns

have been registered by Wilson and Herrnstein (1985) and by Krattenmaker and Powe (1996).21

Despite the concerns raised by Freedman and others, it appears that most researchers

believe that the almost uniform results generated by the laboratory experiments serve as an

important complement to what they view as largely similar results obtained from other

investigational approaches.22

Correlational studies

The most frequent type of correlational study is the “one shot” model that uses a single

questionnaire to ask subjects about their television viewing preferences and a variety of

behavioral traits. One of the most extensive survey research efforts of this type was performed

by Belson (1978), who investigated the behavior and viewing habits of over 1,500 adolescent

males in London in the early 1970’s.23 In addition to finding a moderate correlation between

high exposure to television violence and violent behavior, Belson also identified a dose-response

relationship: the more exposure to television violence, the greater the reported actual violent

activity of the subjects – holding constant the impact of other influences on violent behavior such

as family background, cognitive ability, etc.24 Other survey investigations report results similar

to Belson’s findings, although there is considerable variation in the strength of the relationship

between media violence and aggressive behavior, as well as in the sophistication of the statistical

techniques employed.25

Longitudinal studies, where the same subjects are surveyed at different points in time,

represent a potentially more informative approach because researchers can investigate the

relation between early exposure to violent media and subsequent aggressive tendencies. One

important study of this type is the investigation by Lefkowitz, Huesmann, Eron, and their

associates into the television viewing habits and behavior of 875 third-grade children in a semirural county in upstate New York during the 1960’s.26 The researchers report that children with a

preference for violent programs at age eight were more likely to exhibit aggressive behavior at

age 19.27 Also, preference for violent television viewing at age eight was a predictor of serious

crimes engaged in by subjects when they were 30 years old.28 In a similar analysis based on

surveys conducted in five countries in the late 1970’s, Huesmann and Eron (1986) conclude that

their findings suggest a bidirectional relationship between exposure to media violence and

violent behavior: the child learns to be violent from violent media which, in turn, induce the

desire to watch more violent media.29

Another important longitudinal study was published in 1982 by Milavsky and associates,

who followed several hundred children in two Midwestern cities for three years in the 1970's.30

For the analysis of young boys and girls, the authors report that initial correlations between

exposure to violent media at the beginning of the period and later aggressiveness turned small

and statistically insignificant after controlling for social and familial factors, as well as past levels

of aggressive behavior.31 Milavsky et al. conclude that their results fail to support the hypothesis

that exposure to media violence causes aggression in children.32 Huesmann et al. (1997) view

the Milavsky et al. results in a somewhat different light by focusing on the predominance of

positive (albeit insignificant) statistical relationships between exposure to media violence and

subsequent aggression as being at least consistent with the causal hypothesis.33 Huesmann et al.

argue that closer inspection of Milavsky et al. and other studies purporting to contradict the

causal hypothesis reveals “that their results are not discrepant, but simply not strongly supportive

of the [causal hypothesis].”34

Survey research also has been used to investigate the extent to which televised violence

creates desensitization and “mean world” effects among youthful viewers. In regard to the latter,

Gerbner and his associates report that “long-term exposure to television, in which frequent

violence is virtually inescapable, tends to cultivate the image of a relatively mean and dangerous

world.”35 They further describe an approximate dose-response relationship in which “heavy

viewers,” those who watch television more than three hours a day, are more likely than “light

viewers,” those who watch two hours or less, to provide responses characteristic of the mean

world syndrome.36 Bok (1998) and Gunter (1994) discuss further research on the Gerbner

hypothesis, some of which is supportive and some of which is not.37

Alternatively, some researchers report that the cumulative exposure to media violence has

a numbing effect on heavy viewers, making them less sensitive to subsequent acts of violence –

both in the media and in real life. Such a desensitization effect may “shrink empathy for

suffering in real life and diminish the readiness to go to the help of persons in need.”38 Support

for this view comes from Huston et al. (1992) who report on research showing that children and

adults who are exposed to televised violence “are less likely than unexposed individuals to seek

help for victims of violence.”39 Huesmann et al. note, however, that the link between

desensitization and aggressive behavior is not clear-cut: “It should not be surprising that

emotional and physiological responses to scenes of violence habituate as do responses to other

stimuli. It is more difficult to make the case that such habituation would influence the future

probability of aggressive behavior.”40

The above review suggests that there is a fair amount of uniformity among researchers in

finding a correlation between media violence and indices of aggression and violence in children

(with more variable results for desensitization and “mean world” effects). There remains,

however, the question of whether these empirical patterns suggest a causal chain going from

exposure to the media violence to aggressive and violent acts in the real world. Because of the

difficulty in assigning causality from correlational studies, a number of researchers have

employed inventive ways of assessing the impact of events that created large changes in a

community’s exposure to television.

Event studies

A major event study analyzed effects on children from the introduction of television in a

rural Canadian community during the 1950’s.41 The researchers in this project compared

children before and after the introduction of television in one town (Notel) with their peers in two

comparable towns where television was already well established: Unitel (receiving the

government-owned channel, CBC) and Multitel (receiving both CBC and U.S. stations).42 They

measured aggression based on observations of children’s interactions in the schoolyard during

free play, by teacher ratings, and by peer ratings.43 Longitudinal observations of 45 children first

observed in grades one and two and re-evaluated two years later indicated that both verbal and

physical aggression increased over this two-year period for children in Notel after the

introduction of television, but not for children in the two control communities where television

was already available.44 Accordingly, the researchers conclude that their study demonstrates the

potential of television to increase aggressive behavior among children.45

The Canadian investigation is considered the best controlled study of its type, and

provides some of the most persuasive evidence in support of the hypothesis that violent media

content stimulates aggressive behavior in children. Nevertheless, additional results from the

study suggest a somewhat equivocal role for media violence as a cause of aggressive behavior.

Ledingham et al. (1993) note that Unitel received only the public television channel (CBC), yet

its children exhibited aggression levels similar to the Multitel community, which received U.S.

channels (and their greater level of media violence) as well.46 They suggest that these results

indicate that “the absolute number or type of channels available is relatively unimportant.”47

Also, the Canadian investigation failed to replicate the above-noted Eron and Huesmann finding

that initial viewing of violent programming predicts future aggression levels: “[T]he amount of

television watched at the initial time of testing by the children of Unitel and Multitel did not

significantly predict the amount of aggression seen two years later (although aggression assessed

in the follow up period was predicted by television viewing assessed at the same time).”48

A more recent study by Centerwall (1992) compares changes in violence rates among the

U.S., Canada, and South Africa before and after the introduction of television in South Africa.49

Because television was introduced in South Africa only in 1976 although it had been available

since the 1950’s in Canada and the U.S., Centerwall uses the latter to control for the nontelevision impact on violence rates. He reports that violence rates in South Africa remained

constant during the 1960’s while increasing at a rapid rate in the U.S. and Canada during the

same period.50 After the introduction of television, South Africa experienced significant

increases in violence rates. Centerwall concludes that the introduction of television, with its

associated frequent portrayal of violent acts, results in a significant rise in interpersonal violent

acts in a society.51

The Centerwall study has been criticized on a number of grounds. Bok (1998) and

Krattenmaker and Powe (1996) note the potential distorting effect on Centerwall’s results of his

not taking into account the social changes taking place in South Africa during the time period of

the study.52 On a more general level, Donnerstein and Linz (1998) point out that Centerwall’s

focus on television in general makes it difficult to isolate the impact of violence in the

entertainment media versus the violent content shown on televised news accounts.53 This is a

potentially important distinction because studies show that the extensive reporting of violent

events in the news media can result in at least a short-term increase in crime rates.54

Furthermore, other researchers suggest that excessive time spent by children watching television,

regardless of content, may be a more important predictor of aggressive behavior and other

antisocial acts.55

Third-Party Assessments of the Research

This summary provides a snapshot of the very large volume of basic research that exists

on the general impact of televised media violence on youth. Comprehensive reviews have been

conducted over the past 40 years by various commissions, as well as by individual researchers.

Most of these reviews note the general uniformity of empirical findings – in particular, a robust

correlation between exposure to media violence and aggressive behavior among youth. There

remain, however, appreciable differences in how these empirical results are interpreted.

Five principal commissions and review boards have assessed the overall research record

regarding media violence: the National Commission on the Causes and Prevention of Violence

(1969);56 the Surgeon General’s Scientific Advisory Committee on Television and Social

Behavior (1972);57 the National Institute of Mental Health (“NIMH”) Television and Behavior

Project (1982);58 the Group for the Advancement of Psychiatry Child and Television Drama

Review (1982);59 and the American Psychological Association Task Force on Television and

Society (1992).60 The first three commissions were sponsored by the U.S. federal government

and included representatives from the government, industry, and academia. The last two

commissions were sponsored by independent practitioner groups: the Group for the

Advancement of Psychiatry (“GAP”) and the American Psychological Association (“APA”).

All five reviews note the existence of a significant empirical association between

exposure to television violence and aggressive behavior among youthful viewers.61 Although

they each chose different ways of characterizing the relationship, all imply that exposure to

violent television programming is more likely than not to increase aggressive behavior among

certain parts of the population. The NIMH study, for example, noted that “the consensus among

most of the research community is that violence on television does lead to aggressive behavior by

children and teenagers who watch the programs.”62 The APA task force concluded: “There is

clear evidence that television violence can cause aggressive behavior and can cultivate values

favoring the use of aggression to resolve conflicts.”63

Surveys of the media violence literature by individual researchers reveal a much greater

range of opinion on the impact of televised media violence. The majority of reviewers conclude

that research has persuasively documented a causal link between media violence and aggression,

and that this effect is significant.64 Other commentators take the opposite position that the

various methodological and data problems in the media violence research preclude the finding of

any such link.65 Finally, a number of reviewers adopt an intermediate position, viewing the

evidence as suggestive, but not of a quality that persuasively documents a significant causal

relationship.66

There does appear to be general agreement among researchers that whatever the impact of

media violence, it likely explains a relatively small amount of the total variation in youthful

violent behavior. As Huesmann et al. (1997) point out: “What is important for the investigation

of the role of media violence is that no one should expect the learning of aggression from

exposure to media violence to explain more than a small percentage of the individual variation in

aggressive behavior.”67

Another important area of apparent agreement among diverse groups of observers is an

increasing recognition that the media-aggression relationship is a complex one that involves a

number of mediating influences. Broader research into the causes of youth violence has

identified interacting risk factors, such as genetic, psychological, familial, and socioeconomic

characteristics.68 Severe antisocial aggressive behavior appears to occur most often when more

than one of these factors is present.69 The typical profile of a violent youth is one who comes

from a troubled home, has poor cognitive skills, and exhibits psychological disorders such as

anxiety, depression, and attention deficit hyperactivity.70 This configuration of risk factors makes

attempts to isolate the independent effect of media violence difficult, because media violence can

operate through many of the risk factors described above. As Huesmann and Eron remark:

“[T]o understand the development of aggression, one must examine simultaneously a multiplicity

of interrelated social, cultural, familial, and cognitive factors, each of which adds only a small

increment to the totality of causation.”71

Finally, there appears to be increasing recognition that future research needs to focus

more on the kinds of media content most likely to result in aggressive behavior, rather than

emphasizing general levels of violence in the media. The final report of the National Television

Violence Study (“NTVS”), a three-year effort to assess violence on television, acknowledged this

trend:

Indeed, over the past decade, researchers have shifted attention away from

investigating whether TV violence poses a problem, to focus on exploring

conditions under which different kinds of negative consequences are more or less

likely to occur. We now realize a need to look more closely at the nature of

television content, asking not just how much violence occurs, but more important,

how the medium portrays the motives and consequences of violence, its

associated moods, its realism and so on – the context in which television portrays

violence.72

III.

CONTEXTUAL ANALYSIS OF TELEVISED VIOLENCE

Theoretical analyses of media violence have led researchers to recognize the importance

of contextual clues in determining how an audience will react. The NTVS attempted to classify

the contextual impacts of media violence by reviewing the relevant empirical research

literature.73 The NTVS staff found 80 experiments where some contextual feature of media

violence was manipulated to see how it affected outcomes.74 Based on these studies, the NTVS

staff identified the following contextual features in violent media that can affect young viewers:

1) the attractiveness of the perpetrator;

2) the attractiveness of the victim;

3) whether the violence is justified;

4) the presence of weapons;

5) the extent and graphic quality of the violence;

6) the punishment and rewards from the violence;

7) pain/harm cues; and

8) humor.75

In particular, the shows deemed to pose the greatest risk for learning aggression were those

where the perpetrator is attractive, there are morally justified reasons for the violence, the

violence is realistic, is rewarded or goes unpunished, and the violence is presented in a humorous

context.76 Table 1 lists these characteristics and their predicted effects on aggression, fear, and

desensitization.

Although the NTVS literature review represents an ambitious attempt to understand the

way in which content and context can influence the impact of media violence, the authors of the

study recognize that predicting the influence of particular kinds of media on behavior is far from

an exact science:

[T]elevised violence does not have a uniform effect on viewers. The relationship

between viewing violence and subsequent behavior depends both on the nature of

the depiction and the makeup of the audience. In some cases, the same portrayal

of violence may have different effects on different audiences. For example,

graphically portrayed violence may elicit fear in some viewers and aggression in

others. Peer influence, family role models, social and economic status,

educational level and the availability of weapons can each significantly alter the

likelihood of a particular reaction to viewing violence on television.77

This uncertainty over effect is reflected in variations in the definition of violence used in studies

attempting to monitor the degree of violence in television and how that definition has changed

over time. In their review of the NTVS and other content-based analyses of violence on

television, Potter et al. (1998) show that counts of violent episodes on television vary from 5.4

acts per hour to 38 per hour.78 They note that the inclusion of acts of verbal aggression, accidents

as well as intentional acts of violence, threats as well as acts involving actual harm, broaden the

definition of violence.79 Due to such disparities, some outside the scientific community, such as

Edwards and Berman (1995), conclude that “the available research does not supply a basis upon

which one could determine with adequate certainty whether a particular ‘violent’ program will

cause harmful behavior.”80

IV.

ELECTRONIC GAMES

The bulk of research on media violence has focused on the content of television shows or

movies. But the last 10 years have seen an important shift among young viewers toward

alternative media formats, including electronic games, music videos, and the Internet. This

section reviews research into electronic games, the most analyzed of these alternative media.

Much of the theory regarding the effects of electronic games follows from the analyses of

violent media in general. Dill and Dill (1998), for example, hypothesize that aggressive traits

generated from exposure to violent media are basically a learned behavior.81 Because interactive

games have been shown to be an especially effective learning medium, they deduce that the

effects of game violence will tend to be even greater than similar content shown on a static

medium such as television.82

Recent empirical investigations into the impact of violent electronic games include Funk

(2000) and Anderson and Dill (2000).83 Funk describes an extensive research program designed

to assess the links between a child’s preference for violent games and various sociological and

psychological traits. Her empirical analysis so far has found that a preference for violent games

is correlated with adjustment problems and negative self-perceptions in some groups of

children.84 Funk concedes that her research approach “cannot determine causal relationships.

However, finding only negative associations suggest that a strong preference for violent games

may at least be an indicator of adjustment issues for some children.”85

Anderson and Dill (2000) use both correlational and experimental techniques to study the

impact of electronic games on a sample of college students.86 In the correlational phase, they

report that real-life violent video game play is positively related to aggressive behavior and

delinquency.87 The relationship is stronger for persons with aggressive personalities and more

pronounced for men.88 In the experimental phase of the project, Anderson and Dill report that

laboratory exposure to graphically violent video games increased aggressive thoughts and

behavior in both males and females.89 The convergence of findings from both the experimental

and correlational stages of their study leads Anderson and Dill to conclude that their results lend

“considerable strength to the main hypothesis that exposure to violent video games can increase

aggressive behavior.”90

Goldstein (2000) raises questions about both the experimental and correlational evidence

in the violent game research.91 He argues that a common flaw in most of the experimental

studies is the failure to distinguish between aggressive play and aggressive behavior. According

to Goldstein, most of the experiments measure only aggressive play, which can be viewed as a

natural extension of the game. He contrasts this to the psychological definition of aggressive

behavior which involves an intent to harm someone.92 Goldstein states that studies

distinguishing between the two concepts of aggression find that violent games stimulate

aggressive play but not aggressive behavior.93 In regard to correlational studies, Goldstein (2000)

and Griffiths (1999) state the familiar criticism that observed associations between violent games

and negative outcomes do not necessarily demonstrate that electronic games cause aggression:

Goldstein explains that “[c]orrelation is not causality, no matter how tempted one may be to

argue otherwise.”94 Anderson and Dill (2000) concur. Referring to their own correlational study,

they caution that “causal statements are risky at best. It could be that the obtained video game

violence links to aggressive and nonaggressive delinquency are wholly due to the fact that highly

aggressive individuals are especially attracted to violent video games.”95 Anderson and Dill do,

however, assert that the consistency in the results of their different types of experiments provides

strong evidence for the hypothesis that exposure to violent video games can increase aggressive

behavior.96

To conclude, most researchers are reluctant to make definitive judgments at this point in

time about the impact of violent electronic games on youth because of the limited amount of

empirical analysis that has so far taken place. Although some surveys of the literature lean

toward seeing a detrimental effect from playing violent video games, others are more skeptical.97

As additional research becomes available, these technical assessments may change.

TABLE 1

PREDICTED EFFECTS OF HOW CONTEXTUAL FEATURES CAN AFFECT THE

RISKS ASSOCIATED WITH EXPOSURE TO TV VIOLENCE

HARMFUL EFFECTS OF TV VIOLENCE

LEARNING

AGGRESSION

FEAR

DESENSITIZATION

CONTEXTUAL FEATURES

Attractive Perpetrator

Attractive Victim

Justified Violence

Unjustified Violence

Conventional Weapons

Extensive/Graphic Violence

Realistic Violence

Rewards

Punishments

Pain/Harm Cues

Humor

Note: Predicted effects are based on review of social science research by NTVS staff on the

different contextual features of violence. Blank spaces indicate NTVS staff’s view that there

is no relationship or inadequate research to make a prediction.

ù = likely to increase the outcome

ï = likely to decrease the outcome

source: National Television Violence Study 3, infra note 73, at 13 (table 1).

ENDNOTES

1. See, e.g., L. Rowell Huesmann et al., The Effects of Media Violence on the Development of

Antisocial Behavior, in Handbook of Antisocial Behavior 181 (David Stoff et al. eds., 1997)

[hereinafter Huesmann et al., Media Violence & Antisocial Behavior]. See also Donald E. Cook,

M.D., President, Am. Academy of Pediatrics; Clarice Kestenbaum, M.D., President, Am.

Academy of Child & Adolescent Psychiatry; L. Michael Honaker, Ph.D., Deputy Chief Executive

Officer, Am. Psychological Ass’n; & E. Ratcliffe Anderson, Jr., Am. Medical Ass’n, Joint

Statement on the Impact of Entertainment Violence on Children (July 26, 2000) (released at

Congressional Public Health Summit), www.aap.org/advocacy/release/jstmtevc.htm (visited

Aug. 1, 2000) [hereinafter Joint Impact Statement].

2. See, e.g., Sissela Bok, Mayhem: Violence As Public Entertainment 61-81 (1998).

3. See Jonathan L. Freedman, Viewing Television Violence Does Not Make People More

Aggressive, 22 Hofstra L. Rev. 833 (1994) [hereinafter Freedman, Television Violence].

4. See, e.g., Huesmann et al., Media Violence & Antisocial Behavior, supra note 1, at 183; Joint

Impact Statement, supra note 1; National Institute of Mental Health, Child and Adolescent

Violence Research at the NIMH (2000), www.nimh.nih.gov/publicat/violenceresfact.cfm (visited

Aug. 14, 2000) [hereinafter NIMH, Children and Adolescent Violence Research].

5. Compare Freedman, Television Violence, supra note 3 with Huesmann et al., Media Violence

& Antisocial Behavior, supra note 1.

6. As part of the Clinton Administration’s initiative against youth violence, the President

requested that the Surgeon General prepare a report on the causes of youth violence. See

Opening Remarks by the President in White House Strategy Meeting on Children, Violence, and

Responsibility (May 10, 1999),

www.pub.whitehouse.gov/uri-res/I2R?urn:pdi://oma.eop.gov.us/1999/5/17/5.text.1 (visited Aug.

14, 2000).

7. See James Potter et al. Content Analysis of Entertainment Television: New Methodological

Developments, in Television Violence and Public Policy 55, 57 (James T. Hamilton ed., 1998).

8. See Barrie Gunter, The Question of Media Violence, in Media Effects: Advances in Theory

and Research 163, 169-76 (Jennings Bryant & Dolf Zillmann eds., 1994).

9. L. Rowell Huesmann & Leonard D. Eron, The Development of Aggression in Children of

Different Cultures: Psychological Processes and Exposure to Violence, in Television and the

Aggressive Child: A Cross-National Comparison 1, 14-16 (L. Rowell Huesmann & Leonard D.

Eron eds., 1986) [hereinafter Cross-National Comparison].

10. Id. at 16.

11. See generally Marie-Louise Mares, Positive Effects of Television on Social Behavior: A

Meta-Analysis (Annenberg Pub. Pol’y Ctr. U. Penn. Report No. 3 1996).

12. See generally Gunter, supra note 8.

13. See, e.g., Huesmann et al., Media Violence & Antisocial Behavior, supra note 1, at 184;

Haejung Paik & George Comstock, The Effects of Television Violence on Antisocial Behavior: A

Meta-Analysis, 21 Comm. Res. 516, 518-19, 536-38 (1994); Russell G. Geen, Television and

Aggression: Recent Developments in Research and Theory, in Media, Children, and the Family:

Social, Scientific, Psychodynamic, and Clinical Perspectives 151, 152 (Dolf Zillmann et al. eds.,

1994).

14. See, e.g., Gunter, supra note 8, at 170-71.

15. Huesmann et al., Media Violence & Antisocial Behavior, supra note 1, at 184 (citation

omitted).

16. Id. at 185.

17. Haejung Paik & George Comstock, Television and the American Child 241 (1991).

18. Freedman, Television Violence, supra note 3, at 840-41.

19. Id.

20. Id.

21. See James Q. Wilson & Richard J. Herrnstein, Crime and Human Nature 346-48 (1985); see

also Thomas G. Krattenmaker & Lucas A. Powe, Jr., Regulating Broadcast Programming 12728 (1996).

22. See, e.g., Huesmann et al., Media Violence & Antisocial Behavior, supra note 1, at 184.

23. William A. Belson, Television Violence and the Adolescent Boy (1978). The Belson study,

although conducted at one point in time, asked questions relating to different periods in the past.

24. Id. at 15.

25. See, e.g., Gunter, supra note 8, at 173-87; Huesmann et al., Media Violence & Antisocial

Behavior, supra note 1, at 184-85; Paik & Comstock, supra note 17, at 242-54.

26. See Monroe M. Lefkowitz et al., Television Violence and Child Aggression: A Followup

Study, in Report of the Surgeon General’s Scientific Advisory Committee on Television and

Behavior: Television and Adolescent Aggressiveness (Reports and Papers Vol. 3) 35 (George A.

Comstock & Eli A. Rubenstein eds., 1972); see also L. Rowell Huesmann et al., Stability of

Aggression over Time and Generations, 20 Developmental Psychol. 1120 (1984) [hereinafter

Stability of Aggression].

27. See Lefkowitz et al., supra note 26, at 71.

28. See Huesmann et al., Stability of Aggression, supra note 26, at 1125-26.

29. L. Rowell Huesmann, Cross-National Communalities in the Learning of Aggression from

Media Violence, in Cross-National Comparison, supra note 9, at 239, 254-55. These

conclusions were challenged by Dutch researchers who were originally part of the international

study. Publishing their own analysis of the international data, the Dutch researchers concluded

that “there is almost no evidence for the hypothesis that television violence viewing leads to

aggressive behavior or vice versa.” O. Wiegman et al., A Longitudinal Study of the Effects of

Television Viewing on Aggressive and Prosocial Behaviors, 31 Brit. J. of Soc. Psychol. 147, 159,

161 (1992). Wiegman et al.’s contrary findings are based on the use of statistical techniques that

attempt to correct for the impact of violence risk factors, such as a child’s intelligence, as well as

preexisting levels of aggression.

30. J. Ronald Milavsky et al., Television and Aggression: A Panel Study (1982).

31. The tendency for other factors to be related both to exposure to media violence and to violent

behavior was especially important in the analysis of boys. Id. at 483. Milavsky et al. report that

the study “showed that many of the factors which were more strongly related than television

exposure to the aggression of elementary school boys are also similarly related to teen

aggression: living in neighborhoods and families where aggression occurs often, and being

rejected by their mothers. In addition, the aggressive teen accepts aggression as a proper form of

behavior and feels no regret when he is aggressive. He uses alcohol and has friends who use

drugs. Most of these factors are predictors of his becoming more aggressive over time relative to

teens who do not share such circumstances.” Id. at 486.

32. Id. at 487.

33. Huesmann et al., Media Violence & Antisocial Behavior, supra note 1, at 185.

34. Id.

35. George Gerbner et al., Growing up with Television: The Cultivation Perspective, in Media

Effects: Advances in Theory and Research, supra note 8, at 30.

36. Id.

37. See Bok, supra note 2, at 62; Gunter, supra note 8, at 183-86.

38. Bok, supra note 2, at 69.

39. Aletha C. Huston et al., Big World, Small Screen: The Role of Television in American

Society 57 (1992) [hereinafter Big World, Small Screen]. For a fuller review of the evidence,

some of which is not supportive of the desensitization theory, see Bok, supra note 2, at 67-76.

40. Huesmann & Eron, in Cross-National Comparison, supra note 9, at 14. The authors briefly

note the existence of studies that “seem to support” the desensitization hypothesis, but they do

not evaluate the studies’ ability to identify a causal link. Id.

41. See The Impact of Television: A Natural Experiment in Three Communities (Tannis

MacBeth Williams ed., 1986).

42. Id. at 312.

43. Id. at 314-18.

44. Id. at 319-20.

45. Id. at 401.

46. Jane E. Ledingham, et al., The Effects of Media Violence on Children 5 (Nat’l Clearinghouse

on Fam. Violence, Canada, 1993), www.hcsc.gc.ca/hppb/familyviolence/html/mediaviolence.htm (visited Aug. 14, 2000).

47. Id.

48. Id.

49. Brandon S. Centerwall, Television Violence: The Scale of the Problem and Where to Go

from Here, 267 JAMA 3059 (1992).

50. Id. at 3060-61.

51. Id. at 3061.

52. See Bok, supra note 2, at 86; Krattenmaker & Powe, supra note 21, at 125.

53. See Edward Donnerstein & Daniel Linz, The Media, in Crime 237, 252 (James Q. Wilson &

Joan Petersilia, eds., 1995).

54. See Wilson & Herrnstein, supra note 21, at 342-43.

55. See, e.g., Wiegman, supra note 29.

56. Robert K. Baker & Sandra J. Ball, Mass Media and Violence: A Staff Report to the

National Commission on the Causes and Prevention of Violence (1969).

57. Surgeon General’s Scientific Advisory Committee on Television and Social Behavior,

Television and Growing Up: The Impact of Televised Violence (1972).

58. 1 National Institute of Mental Health, Television and Behavior: Ten Years of Scientific

Progress and Implications for the Eighties (David Pearl et al. eds., 1982).

59. Group for the Advancement of Psychiatry, The Child and Television Drama: The

Psychosocial Impact of Cumulative Viewing (1982).

60. 1 American Psychological Association, Violence & Youth: Psychology’s Response –

Summary Report on the American Psychological Association Commission on Violence and Youth

(1993).

61. See generally John P. Murray, The Impact of Televised Violence,

www.ksu.edu/humec/impact.htm (visited Aug. 14, 2000).

62. 1 NIMH, supra note 58, at 6. Subsequently, the National Research Council (“NRC”), a

quasi-governmental agency, convened a panel of experts to review the NIMH study. The NRC

concluded that televised violence “may be related” to aggression, but that the magnitude of the

relationship is small and the meaning of aggression is unclear. National Academy of

Sciences/National Research Council, Children and TV Violence: Where Do We Go from Here?,

News Report 8 (March 1983).

63. Huston, Big World, Small Screen, supra note 39, at 136.

64. See, e.g., Donnerstein & Linz, supra note 53, at 237 (“Media violence is also a causal factor

in the stimulation of violent behavior including crime.”); Huesmann et al., Media Violence &

Antisocial Behavior, supra note 1, at 190 (“viewing media violence stimulates aggressive

behavior in children”); Donald F. Roberts, Media Content Labeling Systems, in A

Communications Cornucopia: Markle Foundation Essays on Information Policy 350, 354

(Roger G. Noll & Monroe E. Price eds., 1998) (noting “unequivocal conclusion that exposure to

mass media portrayals of violence contributes to aggressive attitudes and behavior in children,

adolescents, and adults”).

65. See, e.g., Jonathan L. Freedman, Remarks Before the House Bipartisan Task Force on Youth

Violence 1 (Oct. 1, 1999) (“The available studies provide no convincing evidence that viewing

violence on television or in the movies causes aggression or crime and quite of bit of evidence

that it does not.”) (on file with the Commission); Jonathan Kellerman, Savage Spawn:

Reflections on Violent Children 72 (1999) (stating that “not a single causal link between media

violence and criminality has ever been produced”).

66. See, e.g., Dora Black & Martin Newman, Television Violence and Children, 310 Brit. Med.

J. 273, 273; Bok, supra note 2, at 87; Gunter, supra note 8, at 201-02.

67. Huesmann et al., Media Violence & Antisocial Behavior, supra note 1, at 183. A prominent

exception to this view is Centerwall (1992), who believes that television is a major reason for

increased crime rates in Western society. But Centerwall’s evidence relates to all television

content, not just the entertainment component that is the focus of this review. Centerwall, supra

note 49.

68. See generally National Research Council, Perspectives On Violence, in Understanding and

Preventing Violence: Panel on the Understanding and Control of Violent Behavior 101 (Albert

Reiss, Jr. & Jeffrey Roth eds., 1993); Huesmann & Eron, in Cross-National Comparison, supra

note 9, at 1-27; NIMH, Children and Adolescent Violence Research, supra note 4.

69. Huesmann et al., Media Violence & Antisocial Behavior, supra note 1, at 183.

70. See generally note 68, supra.

71. Huesmann & Eron, in Cross-National Comparison, supra note 9, at 4.

72. 3 University of California, Santa Barbara et al., National Television Violence Study:

Executive Summary 13 (Joel Federman ed., 1998) [hereinafter NTVS Executive Summary].

73. The NTVS, initiated in 1994, was a three-year effort to assess violence in television

programming. The project was funded by the National Cable Television Association, and

involved media researchers from four universities, as well as representatives from various policy

and advocacy organizations. The results from the NTVS are set forth in three volumes. See

NTVS Executive Summary, supra note 72; University of California, Santa Barbara et al., National

Television Violence Study 3 (Center for Communications and Social Policy, University of

California, Santa Barbara eds.,1988) [hereinafter NTVS Report]; University of California, Santa

Barbara et al., National Television Violence Study: Scientific Papers 1994-95 (Mediascope, Inc.

ed., 1996) [hereinafter NTVS Scientific Papers].

74. NTVS Scientific Papers, supra note 73, at I-15.

75. NTVS Report, supra note 73, at 11-19.

76. Id.

77. Id. at 3.

78. Potter, supra note 7, at 57.

79. Id. at 58. The authors also note that differences in the definition of media violence also

influence researchers’ selection of a unit of analysis (e.g., each violent act in a narrative scene

versus average numbers of acts per program) and their sample of television programs. Id. at 5761.

80. Harry T. Edwards & Mitchell N. Berman, Regulating Violence on Television, 89 Nw. U. L.

Rev. 1487, 1533 (1995).

81. Karen E. Dill & Jody C. Dill, Video Game Violence: A Review of the Empirical Literature,

3 Aggression and Violent Behavior 407, 409-14 (1998).

82. Id. at 411-14.

83. See Craig A. Anderson & Karen E. Dill, Video Games and Aggressive Thoughts, Feelings,

and Behavior in the Laboratory and in Life, 78 J. Personality & Soc. Psychol. 772 (2000); The

Impact of Interactive Violence on Children: Hearings Before the Senate Comm. on Commerce,

Science and Transp., 106th Cong. (2000) (written testimony of Jeanne B. Funk, Ph.D.), reprinted

at 2000 WL 11070123.

84. Funk, supra note 83, 2000 WL 11070123, at *4-5.

85. Id. at *5.

86. Anderson & Dill, supra note 83.

87. Id. at 778-82.

88. Id. at 782.

89. Id. at 785-87.

90. Id. at 787.

91. See The Impact of Interactive Violence on Children: Hearings Before the Senate Comm. on

Commerce, Science and Transp., 106th Cong. (2000) (written testimony of Jeffrey Goldstein,

Ph.D.), reprinted at 2000 WL 11069631.

92. Id. at 11069631, at *5-6.

93. Id. at *7 (citing Joel Cooper & Diane Mackie, Video Games and Aggression in Children, 16

J. Applied Soc. Psychol. 726 (1986), and Joop Hellendoorn & Frits J.H. Harinck, War Toy Play

and Aggression in Dutch Kindergarten Children, 6 Soc. Dev. 340 (1997)).

94. Id. at *4; accord Mark Griffiths, Violent Video Games and Aggression: A Review of the

Literature, 4 Aggression & Violent Behavior 203, 206 (1999).

95. Anderson & Dill, supra note 83, at 782.

96. Id. at 787.

97. Compare Dill & Dill, supra note 81, at 424 (“short term exposure to video-game and virtual

reality violence engenders increase in aggressive behavior, affect, and cognitions and decreases

in pro-social behavior”) with Griffiths, supra note 94, at 211 (“[T]he question of whether video

games promote aggressiveness cannot be answered at present because the available literature is

relatively sparse and conflicting, and there are many different types of video games which

probably have different effects.”).

Appendix B

CHILDREN AS CONSUMERS OF ENTERTAINMENT MEDIA:

MEDIA USAGE, MARKETING BEHAVIOR AND INFLUENCES,

AND RATINGS EFFECTS

INTRODUCTION: YOUTH AS A CONSUMER MARKET

American children’s unprecedented spending power holds considerable appeal for

marketers. Older children, ages 12 to 19, spent more than $94 billion of their own money in

1998.1 Younger children, ages 8 to 12, spent $11.9 billion of their own money in 1997, an

increase of 300% since 1989.2 In addition, children spend money they receive from their parents

or other adults. Including these funds, Teen Research Unlimited (“TRU”) estimated in its semiannual Teenage Marketing and Lifestyle Survey that children ages 12 to 19 spent more than $153

billion in 1999, up from $140 billion in 1998.3 The average teen spends $56 of his or her own

money and $28 of his or her parents’ money per week.4 Teens also influence substantial

additional family spending by expressing their preferences for certain products or brands that

their parents then purchase.

Apart from their spending power, teens are an important market for other reasons. Teens

set trends, both for their peers and for younger children who emulate them. Teens are a “future

market”: by winning the business of a teen, a company may be able to create a lifelong loyal

customer. They are an attractive market for entertainment companies, in particular, due to their

heavy usage of entertainment media.5 The 1999 Roper Youth Report confirmed that teens, in

contrast to adults, are able to spend much of their money on discretionary purchases like movies,

CDs, and electronic games.6 Of the $140 billion teenagers spent in 1998, $22 billion was spent

on entertainment products.7

This Appendix addresses the relationship of children, especially teenagers, to the world of

entertainment and entertainment marketing: (a) their use of entertainment media; (b) the

influence of parents, peers, and advertising and marketing in shaping children’s media exposure

and consumption; (c) the specific techniques used by industry to promote its products to children;

and (d) the potential influence of entertainment ratings on children’s purchasing decisions.

II.

CHILDREN’S ENTERTAINMENT MEDIA USAGE

Children today face an entertainment media environment that has changed significantly

over the last three decades, when network television, radio, and the record album were the

dominant forces. Since then, new media have emerged to compete for audience share: cable and

satellite television; videotapes; cable radio; cassette tapes, CDs, and mini-disk or MP3 players;

video games; computers; and the Internet.

Children are avid consumers in this rich media environment, spending significant time

with both old and new media. Data about children’s movie watching, game playing, and music

listening habits illustrate the ubiquity of these media and their importance in the lives of

American children. The 1999 Kaiser Family Foundation’s Kids & Media @ the New Millennium

Survey found that 97% of homes

with children have a VCR, 90% have

The Kaiser Family Foundation’s Kids &

Media @ the New Millennium Survey

Percent of Homes with Children Surveyed

player, 69% have a computer, and

45% have Internet access.8

100%

80%

a CD player, 70% have a video game

97%

60%

Moreover, results of the Annenberg

90%

70%

69%

Public Policy Center’s Media in the

40%

45%

Home 2000: The Fifth Annual

20%

Survey of Parents and Children,

Type of Media Present in the Home

show that 78% of homes with

VCR

CD P layer

Video Game P layer

Computer

Internet Acces s

children have basic cable and 31%

have premium cable.9

Entertainment Media Usage: Movies

Seeing movies at the theater is a favorite social activity among teens. The Motion

Picture Association of America (“MPAA”) estimates that although 12- to 17-year-olds make

up less than 10% of the population, they purchase 17% of movie tickets.10 Roper Youth

Report data indicate that almost one third of 13- to 17-year-olds report seeing movies in

theaters a couple of times each month.11 A majority (63%) of 9- to 17-year-olds find it

“important” to see the latest movies.12 “Tweens” (8- to 13-year-olds) spend the most time at

the theater, on average, spending three hours per week.13 Action films are the most popular

genre at the theater among youngsters, with comedy second.14

Home video watching is even more popular among children. Although nearly 18% of

8- to 17-year-olds reported that they had seen a movie on the previous day, 56% reported that

they had viewed a videotape the previous day.15 Three in five (62%) children ages 9 to 17

report that they watch a video once a week or more.16 Children ages 2 to 17 spent an average

of 52 minutes per day watching videotapes.17 Action and comedy films are at the top of the

older children’s preference lists.18

Entertainment Media Usage: Music

Music provides the “soundtrack to teens’ lifestyles,” vying with television as a focal

point of teens’ interest.19 At times, children listen to music as a primary, or exclusive,

activity. They also read, do homework, talk with friends, and engage in other activities while

music plays in the background. It is not surprising, then, that the time children spend

listening to music nearly rivals the time they spend watching television. Youth between the

ages of 2 and 18 spend an average of one hour and 27 minutes listening to music each day.20

This average increases significantly with age: teens 14 to 18 listen to music almost twice as

much as younger children, 2 1/2 hours per day on average.21

Children, especially teens, are active

music consumers. One study reported that

Teen Music Purchases

Percentage of Teens Surveyed

71% of teens had purchased at least one full-

100%

length CD, 33% had bought a CD single,

80%

60%

71%

and 35% had bought a full-length cassette in

40%

20%

33%

the three-month period preceding the

35%

study.22 The most popular purchase for

T een P urchas es in P rior T hree Months

CD Single

teens on the Internet is music.23 Aside from

Cassette

listening to music they have purchased,

youth listen to music by watching music

videos or by listening to the radio. The data show that youth use radio primarily to listen to

music rather than news, sports, or other formats: regardless of age, music exposure time is

always more than double the exposure to all other radio formats combined.24 Music videos

are another key avenue of exposure: more than half of children aged 9 to 17 watch music

videos.25 Whatever the format, rap/hip-hop and alternative rock are the two types of music

that currently dominate among teens, with R&B close behind.26

Entertainment Media Usage: Electronic Games

Despite their relative newness, electronic games, whether played on a personal

computer (“computer games”) or on a hand-held machine or game console (“video games”),

have achieved substantial penetration. Almost nine in ten homes with children (88.7%) have

either a personal computer or video

game equipment.27 Slightly less than

Annenberg Survey

half (46.3%) of homes with children

Percent of Homes with Children Surveyed

own a TV, VCR, video game

equipment, and a computer; an

100%

additional 19.5% of the homes have

80%

88.7%

60%

a TV, VCR, and video game

40%

equipment but no computer.28

46.3%

20%

19.5%

Though having a computer does not

M edia P r es ent in t he H o me

necessarily equate to playing

Computer or Video Game E quipment

T V, VCR , Video Game AND Computer

computer games, gaming is the most

T V, VCR , Video Game AND NO Computer

popular way in which youngsters use

computers, comprising the majority

of recreational computer use.29

The National Public Radio/Kaiser Family Foundation/John F. Kennedy School of

Government Kids and Technology

Survey indicated that 82% of the

82% of children

play video

games...

and 77% play daily

or weekly

children surveyed play video

games.30 Of those, more than two in

five (42%) play almost every day,

42%

18%

while 35% play about once a week.31

82%

35%

Children on average spend 33

42% Daily

35% Weekly

5% Other

minutes per day playing video games;

however, this figure does not include

time spent on the computer (34

minutes per day), part of which is

spent playing computer games.32 Many surveys have shown that electronic games are more

popular with boys than girls, with the difference in time spent playing games most

pronounced for video games.33 Action games are the most popular genre among youths,

closely followed by sports-related games and adventure games.34

III.

INFLUENCES ON CHILDREN’S MEDIA EXPOSURE

Parents’ Influence and Concerns

Parents have a substantial impact on their children’s media exposure (as do other

adults such as teachers and relatives). Parents may exert influence by restricting a child’s

access or exposure to some media depending on its content, limiting the time spent with

media, discussing media with children to help them understand and interpret it, or providing

supplementary sources of information.35

Parents’ attitudes toward the media are by no means uniform: research suggests that

parents have different “styles,” from “neglectful” to “permissive” to “authoritarian,” that

affect the extent and nature of their involvement in their children’s media use.36 Despite

varying parental styles, the Media in the Home 2000 study indicates two factors affecting

parental concerns about media influences upon their children: the child’s age and the

medium.37 As to age differences, parents of younger children (ages 6-11) spent more time

supervising their children’s video game playing, music listening, and television watching.38

Similarly, the 1999 Roper Youth Report found that parents had more rules for younger versus

older youth regarding television shows viewed, movies watched on the VCR, music listened

to, and time spent playing video games.39 The Internet was the only entertainment medium

for which parents more closely supervised teenagers than younger children.40

One survey by Christenson (1997)41

asked youth which medium was of most

Youth’s View of

Media of Most Concern to Parents

concern to their parents. Only 9% of youth

said video games, compared to 17% who

17%

74%

said music and 74% who said television.

According to Christenson, certain media are

more visible to parents than others, because

Video Games

of where or how they are used, or because

parents are detached or alienated from other

Music

Television

media’s content and form. He explains that music and video games are less “visible” to

parents than movies and television, and demonstrates that parents regulate television and

movies more than video games and music.

Parental concerns about media exposure do not always translate into action. A

significant percentage of children report that they pick out music (42%), video games (32%),

movies (26%), and rental movies (30%) without needing to ask a parent before choosing.42

Few adolescents report that their parents accompany them to music stores, cull through their

CD collections, or otherwise interfere with their freedom to select and listen to “whatever

music suits them.”43 Likewise, 49% of children with video game equipment say that their

parents do not have rules about the content of the video games they play.44 And, again, age is

a key factor: the number of children who usually are able to make purchases without

consulting their parents is significantly higher for older versus younger children.45

Parental concern also does not necessarily lead parents to use media alongside their

children. Only 11% of 7th through 12th

graders go to the movies with their

Teens Social Preferences

at the Movies

parents – compared to 60% who attend

with siblings or peers.46 In fact, two

Percentage of 7-12 Graders Surveyed

100%

thirds of teens in the TRU study named

80%

movie-going as something they

60%

40%

explicitly do not like to do with their

20%

parents.47 Teens are more open to

11%

Choice of Movie Companion

watching videos with their parents: A

Go w ith Parents

quarter indicated that they sometimes

Go w ith Siblings & Peers

watch videos with their parents.48 Only

31% of teens in the TRU study noted watching videos at home as something they explicitly

do not like to do with their parents.49

The same holds true for electronic games. Despite the popularity of multiplayer

gaming on the Internet – sites that allow a number of users to log in and compete against

other players over the modem – playing electronic games is a relatively solitary activity for

most children. In the Kids & Media @ the New Millennium study, 55% of children surveyed

reported that they play video games mainly alone (64% play computer games mainly alone),

while only 36% reported that they play video games in the presence of peers and/or siblings

(only 13% play computer games with peers and/or siblings).50 Further, 63% of teens noted

game playing as something they do not like to do with their parents.51

One phenomenon that might decrease parental supervision of media usage is that the

media are no longer enjoyed principally in the family living room or other shared space.

Given the popularity of portable personal devices, such as handheld video game players and

portable CD players, and the substantial number of children who have entertainment media

such as video game equipment in their own bedrooms, the fact that many children use

entertainment media without parental supervision should come as no surprise. According to

the Kids & Media @ the New Millennium survey, about two in three children (70%) have a

radio and nearly as many (64%) have a tape player in their room; more than half (51%) a CD

player; one third (33%) a video game player; 29% a VCR; and 16% a computer (7% with

Internet access) in their bedroom.52

Peer Influence

As noted above, parental involvement, monitoring, and influence decrease as children

age. At the same time, teens begin to rely more on other information sources including, in

particular, their peers.53 As children approach adulthood, they become uncertain about the

self, and the need to belong and to find one’s unique identity as a person becomes very

important. In fact, conformity to peer pressure is considered to be one of the hallmarks of

adolescent behavior.54

Fifty-one percent of teens ages 12 to 17 cite their friends as the biggest influence on

how they spend their money.55 Further,

teens cite friends as the top influence on the

Peer Influences on Media Choices

Percentage of Teens Saying Friends Are

Their Top Influence on Entertainment Choice

music they listen to (71%) and the movies

they see in the theater (53%) or on video

100%

(48%).56 With some variation, peer effects

80%

60%

71%

40%

53%

may enhance or detract from parental

48%

20%

effects.57 After all, as the media usage data

Product

Music

Movies

indicate, it is often a child’s peers, not his or

Video

her parents, who engage the media with the

child. For example, far fewer older children go to the movies with their parents than with

siblings or peers.58

Advertising and Marketing Influence

Although parents and peers are key sources of information and influence,59

advertising and other marketing efforts also influence children’s behavior as consumers of

movies, music, and games. Parents and peers are themselves influenced by marketing, and

marketing messages may reinforce or undermine parent and peer messages. Marketing

efforts are thus part of an ongoing and dynamic social process that shapes teen consumer

behavior.

Advertising is a prime influence on how children spend their money and children’s

consumption of entertainment media. In one study, researchers asked children ages 8 to 17

whether, in the last 30 days, they had purchased or asked their parents to purchase a particular

item for them after seeing it advertised. More than one in four (29%) of the children

surveyed reported that they had purchased or asked a parent to purchase a particular CD or

cassette after seeing the ad, and the data for movie video rentals (28%) and video games

(25%) were comparable.60 More teens reported that they rely on advertising when making

purchasing decisions than did younger children.61 Moreover, 20% of teenagers selected

advertising as one of the factors that influenced their spending, along with such factors as

parents, siblings, friends, teachers, and television.62

Aside from influencing the decision to purchase a product, advertising has other

effects. According to some researchers, as children become adolescents, advertising serves

as a basis for social interaction, providing a topic of conversations with peers, a means of

belonging and group membership, and a way of conveying meaning in their daily lives.63

Some of the advertising and marketing techniques the entertainment industry uses to reach

children are set out below.

IV.

ENTERTAINMENT INDUSTRY MARKETING TECHNIQUES

Given the importance of the teen market, entertainment marketers work hard to influence

teens’ consumer attitudes and behaviors. They employ research to understand teens’ attitudes,

beliefs, habits, and practices in order to develop effective marketing strategies. Entertainment

companies use a variety of methods ranging from qualitative (e.g., focus group discussions,

participant observation) to more quantitative approaches (e.g., surveys, experiments) to research

the young consumer at every stage of the marketing process. Although the marketing strategies

for the movie, music, and electronic game industries each differ somewhat, based on the nature

of the product and industry structure, similarities exist across the industries. In implementing the

marketing strategy, marketers in each of the industries use two broad approaches to target teens:

(i) persuasive techniques (talking to teens in a way that resonates) and (ii) media placement

(going where teens are).

Persuasive Techniques

The development of persuasive marketing communications, such as advertising, is

based on the psychology of how people respond to marketing efforts. Marketers recognize

that youth are different from adults based on such psychological factors as cognitive

development levels, knowledge, and experience that have been identified in the academic

literature. For example, a recent review of how children are socialized into consumers

characterizes three broad stages of development, corresponding to the ages 3 to 7 (perceptual

stage), 7 to 11 (analytical stage), and 11 to 16 (reflective stage).64 Each stage captures shifts

in youths’ knowledge, development, decision-making skills, and purchase influence

strategies. Older children are often divided into two segments based on lifestyle stages:

“tweens” and teens. Tweens (also called “young teens”) encompass those youths who are no

longer “children,” but not yet “teenagers.”65 The precise age cut-offs between tweens and

teens vary: tween is more of a state of mind than a specific age, when youths are caught

developmentally between childhood and adolescence.66

Marketers take advantage of children’s “age aspiration” behavior to link their

strategies for marketing to the teen and tween cohorts. Generally, youth “aspire up” in their

consumer behavior, trying to “live a step or two ahead of where they really are.”67 Children

watch their older siblings, those ahead of them in school, older children in the neighborhood,

and older teens in the media, and desire aspects of their lifestyles and behaviors. The gap in

teens’ actual age and aspired age shrinks as they get older. One study found that while

younger teens (12- to 15-year-olds) aspire to be three to five years older than they are, older

teens are more content enjoying the activities (like driving) that younger teens yearn to do.68

Further, there is a general belief that children are maturing more quickly than in past

generations, which affects the type of marketing efforts directed towards them.69

Entertainment industry marketers employ a wide range of traditional advertising and

promotional techniques to reach teens, often changing the focus to be more relevant to teens.

For example, to reach 12- to 15-year-olds, advertisers might use 17-year-old actors, who will

appeal to children their own age as well as to younger children, given age aspirations.70

Teen-targeted promotions may include sweepstakes, games, in-store rebates, contests,

sampling, and point-of-purchase materials. Because teens do not receive the volume of mail

that adults do, they may be more attentive to direct marketing offers.71

Teens, in particular, are seen as a unique target market with particular characteristics

that dictate the types of strategies needed to communicate effectively with them. Marketers

view teens as savvy about marketing and likely to reject messages perceived as patronizing or

trying too hard to be “cool,” so that marketing to teens calls for more subtle methods.72

Advertisers have found that teens have little patience for hype or pretentious ads and prefer

ads that talk to them in realistic ways and focus on their actual lifestyles.73

Media Placement

The second key way marketers target youth is to “go where they are.” There are a

multitude of media and vehicles targeted at youth, such as cable music networks, teenoriented magazines, teen-oriented Web sites, and lifestyle special events, that make the

elusive teen easier to reach.74 Marketers also recognize that substantial numbers of youth

comprise the audience of media intended for a general audience, such as general circulation

magazines or television shows that are popular with both adults and children.75

Entertainment marketers look not only to reach teens but to be pervasive in the market

throughout the day, whether at home, school, or out and about.76

Marketers also use a variety of less traditional techniques to communicate to teens.

Recently, a small industry of companies that market to youth in educational settings has

grown up. One example is Channel One, which provides schools with a brief 12-minute

news program that incorporates two minutes of advertising, including ads for entertainment

products.77 Another company, Backstage Pass, introduces students to recording artists by

means of CD giveaways and posters in school cafeterias.78 ZapMe! Corp. provides schools

with Internet access, computers, tech support, and maintenance; in exchange, the schools

must promise that a student will use each computer for at least four hours daily while a twoinch by four-inch banner ad appears constantly on the screen.79

Another technique that is less well known outside the marketing world is street or

lifestyle marketing. Street marketing involves making a product a “natural” part of teens’

lifestyles and is a key technique used in the music industry.80 The goal is to reach teens

where they “hang out” – at concerts, coffee shops, arcades, and other gathering spots.

Specific tactics include hanging posters, giving away CDs or T-shirts, distributing flyers or

postcards with the marketing message, generating word of mouth, and encouraging DJs to

play records.81 The entertainment industry has brought street marketing to the Internet as

well, offering free T-shirts and CDs to teens who spread the word about music or movies on

fan site postings or through email.82

Entertainment companies are also creative in joining together to produce marketing

synergies, employing a range of options including partnerships, licensing agreements, or joint

promotions. An electronic game company might license a game character to a toy company to

make an action figure, or to a movie studio to make a film. Companies selling different types of

products ally to cross-market. For example, in the film industry, cross-marketing and product

placements give additional exposure to products or music featured in a film.83 Audience

members may not be consciously aware of these in-film marketing efforts, and such techniques

may prompt inferences that the product is a part of the movie character’s lifestyle.84 The ads

reach a captive audience, and may have higher recall than some other advertising techniques.85

Finally, the emergence of the Internet as a focus for teens has led companies to advertise

online, where the interactive nature of the medium carries the additional promise to marketers of

obtaining consumer feedback while promoting their products. One recent survey indicates that

two thirds of teenagers have either researched products or purchased products online.86

DOES RATING INFORMATION AFFECT CHILDREN’S BEHAVIOR?

The entertainment industry developed the movie and game ratings and music advisory

label to inform parents about the product’s content. In some but not all instances, these ratings

and labels may also be communicated to children through advertising, marketing, and product

packaging, raising the question whether this information directly affects children’s behavior. A

number of academic studies suggest that this rating/labeling information does affect children’s

behavior, although its precise effects are uncertain.

A child might respond to information restricting access to material as if the restricted

material were “forbidden fruit,” leading the child to resist the restriction and seek out the

restricted material.87 By contrast, children might view restricted material as if it were “tainted

fruit,” leading them to avoid content with which they might not be comfortable.88 In that case, a

rating restriction or advisory would directly dampen a child’s interest in the material, apart from

the indirect role the information might play in facilitating parents’ efforts to reduce the child’s

exposure to restricted material.

Studies on the impact of rating information on children’s attraction to restricted

entertainment media products suggest that both of these phenomena may occur, depending on

such factors as the age and gender of the child and the format of the rating itself. For example,

Morkes, Chen, and Roberts (1997)89 tested middle school students’ responses to MPAA movie

ratings, Recreational Software Advisory Council (“RSAC”) electronic game advisories, and

television ratings. The students read brief descriptions of a film, a television program, and a

game, each randomly labeled with one of the ratings appropriate to the medium, and graded the

attractiveness of each. For the movie ratings, children’s desire to view the film increased as the

MPAA age restriction increased: students preferred PG-13- and R-rated films to both G- and PGrated films. This result was driven primarily by boys’ responses. For games, while the RSAC

rating information had no effect on girls, boys preferred games rated with the level 3 advisory

(“Blood and Gore”) significantly more than games with the lower ratings. By contrast, analysis

of the responses regarding television ratings found no ratings effects.90

There are also some studies suggesting the existence of a tainted fruit effect, at least with

younger children. For example, in an experiment by Christenson (1992) that tested the effects of

the parental advisory label used by the Recording Industry Association of America, middle

school students who listened to music while viewing an album’s cover gave lower evaluations to

the music when the album cover had an advisory label than when the album cover had no label.91

Youth in the study also reported less interest in buying explicit-content labeled albums.

Though some studies show little or no effect of rating or labeling information on children,

at least for certain rating or advisory formats,92 the research taken as a whole suggests that

entertainment media ratings do have some impact on children’s media choices, impact that may

depend on factors such as age, gender, the format and type of rating information, and the medium

involved.93 The clear message of this research is that ratings or advisory labels may have not

only intended, but also unintended, effects on youth that should be considered in determining

how best to communicate this type of information.

ENDNOTES

1. Peter Zollo, Wise Up to Teens: Insights into Marketing and Advertising to Teenagers 9 (1999)

[hereinafter Wise Up to Teens]. Wise Up to Teens is based on Teen Research Unlimited’s

syndicated, semi-annual Teenage Marketing and Lifestyle Study, which surveys more than 2000

youth ages 12-19. Marketers use the study, conducted since 1983, to help make their products,

marketing, and advertising efforts compelling and relevant to teens.

2. Barbara Kantrowitz & Pat Wingert, It’s Their World: A Guide to Who’s Hot, Newsweek, Oct.

18, 1999, at 62.

3. Teenage Research Unlimited, Teens Spend $153 Billion in 1999,

www.teenresearch.com/news/bodynews.html (visited June 16, 2000).

4. Wise Up to Teens, supra note 1, at 7-8.

5. For data on media usage, see infra Section II.

6. Wise Up to Teens, supra note 1, at 50-51; Roper Starch Worldwide, 1999 Roper Youth Report

201-03 (1999) [hereinafter 1999 Roper Youth Report].

7. Rachel McLauglin, Targeting Teens, 23 Target Marketing 84 (2000).

8. The Henry J. Kaiser Family Foundation, Kids & Media @ the New Millennium 9 (1999)

[hereinafter Kids & Media @ the New Millennium]. Data released in June 2000 by the

Annenberg Public Policy Center essentially track these results, with the exception that the more

recent data reflect the speed with which American families have adopted the Internet: 52% of

homes with children had Internet access in the later survey, up from 32% in 1998. Emory H.

Woodard, IV & Natalia Gridina, Media in the Home 2000: The Fifth Annual Survey of Parents

and Children 8 (Annenberg Pub. Policy Ctr. U. Pennsylvania 2000) [hereinafter Media in the

Home 2000]. The Annenberg Center’s 1999 survey of media in the home, Jeffrey D. Stanger &

Natalia Gridina, Media in the Home 1999: The Fourth Annual Survey of Parents and Children

11 (Annenberg Pub. Policy Ctr. U. Pennsylvania 1999) [hereinafter Media in the Home 1999]

also contains relevant information.

9. Media in the Home 2000, supra note 8, at 8.

10. NATO 1999-2000 Encyclopedia of Exhibition at 362, 364 (citing MPAA estimates for 1998);

see also Robin Rauzi, The Teen Factor: Today’s Media-Savvy Youths Influence What Others

Are Seeing and Hearing, L.A. Times, June 9, 1998, at F1 [hereinafter The Teen Factor].

11. 1999 Roper Youth Report, supra note 6, at 109.

12. Yankelovich Partners, Nickelodeon/Yankelovich Youth Monitor (1997) (cited in Issue Brief

Series, Popular Culture & the American Child (1999)).

13. Kids & Media @ the New Millennium, supra note 8, at 21.

14. Id. at 50.

15. 1999 Roper Youth Report, supra note 6, at 65.

16. The 1998 Yankelovich/VSDA Home Entertainment Study (cited in Issue Brief Series, Media

Use in America (1999)).

17. Media in the Home 2000, supra note 8, at 19.

18. Kids & Media @ the New Millennium, supra note 8, at 50.

19. Peter G. Christenson & Donald F. Roberts, It’s Not Only Rock and Roll: Popular Music in

the Lives of Adolescents 33-39 (1998) [hereinafter It’s Not Only Rock and Roll].

20. Kids & Media @ the New Millennium, supra note 8, at 37-39 (compared to 2 hours 46

minutes per day watching television).

21. Id.

22. The Teen Factor, supra note 10.

23. Michiyo Yamada, Market Spotlight: Today’s Teens, Tomorrow’s Net Consumers, The

Standard (June 14, 1999), www.thestandard.com.

24. Kids & Media @ the New Millennium, supra note 8, at 37, 39.

25. Peter G. Christenson & Donald F. Roberts, Popular Music in Early Adolescence, Carnegie

Council on Adolescent Development Working Papers 1990 (cited in Issue Brief Series, Popular

Culture & the American Child (1999)). Christenson and Roberts found that more than three

quarters of children aged 9 to 17 (75% of 9- to 12-year-olds, and 80% of 12- to 14-year-olds)

watched music videos. Id. Annenberg reported that over 50% of youth ages 10 to 17 watched

MTV each year from 1996 to 1999. Media in the Home 1999, supra note 8, at 11.

26. Wise Up to Teens, supra note 1, at 71.

27. Media in the Home 1999, supra note 8, at 7.

28. Id. at 7. According to Media in the Home 2000, supra note 8, at 7, 48% of homes have all

four media hardware, an increase from 40% in 1998 and 34% in 1997.

29. Kids & Media @ the New Millennium, supra note 8, at 32-33.

30. National Public Radio, The Henry J. Kaiser Family Foundation, Kennedy School of

Government, Kids & Technology Survey (Feb. 2000),

www.npr.org/programs/specials/poll/technology/technology.kids.html (visited Sept. 1, 2000).

31. Id.

32. Media in the Home 2000, supra note 8, at 19.

33. 1999 Roper Youth Report, supra note 6, at 165; Kids & Media @ the New Millennium, supra

note 8, at 40.

34. Kids & Media @ the New Millennium, supra note 8, at 55.

35. See, e.g., Media in the Home 2000, supra note 8, at 41 (reporting data on parental use of

supervision techniques such as forbidding particular content, restricting time spent with the

medium, and talking about content with the child).

36. Ann D. Walsh et al., Mothers’ Preferences for Regulating Children’s Television, 27 J.

Advertising 23 (1998). Other researchers characterize three dimensions of parental guidance:

restrictive, evaluative, and unfocused. Kelly L. Schmitt, Public Policy, Family Rules and

Children’s Media Use in the Home 25 (Annenberg Pub. Policy Ctr. U. Pennsylvania 2000)

(citing Carl Bybee et al., Determinants of Parental Guidance of Children’s Television for a

Special Subgroup: Mass Media Scholars, 26 J. Broadcasting 697 (1982)) [hereinafter Family

Rules and Children’s Media Use in the Home]. Restrictive guidance includes limiting viewing

hours, forbidding children from watching certain programs while specifying acceptable

programs, changing the channel upon seeing objectionable content, or having prerequisites for

viewing. Evaluative guidance occurs when parents explain the meaning of program content,

discuss characters’ motivations, or note the characters’ good and bad acts. Lastly, parents

provide unfocused guidance by watching with their children, encouraging certain programs, or

talking about a particular show.

37. Media in the Home 2000, supra note 8, at 41.

38. Id. at 41.

39. 1999 Roper Youth Report, supra note 6, at 47. Parents had more rules for younger versus

older youth regarding television shows viewed (56% vs. 23%), movies watched on the VCR

(44% vs. 25%), music listened to (29% vs. 23%), and time spent playing video games (26% vs.

12%).

40. Media in the Home 2000, supra note 8, at 41; see also 1999 Roper Youth Report, supra note

6, at 47.

41. Peter G. Christenson, The Impact of Video Game Ratings: Is There a Boomerang Effect?

(1997) (unpublished manuscript, presented at the International Communication Association

Conference) (on file with the Commission) [hereinafter The Impact of Video Game Ratings].

42. 1999 Roper Youth Report, supra note 6, at 181.

43. It’s Not Only Rock and Roll, supra note 19, at 9.

44. Media in the Home 2000, supra note 8, at 17-18. These findings are consistent with the

Survey of Parents and Children Regarding Self-Regulated Product Rating Systems conducted by

the Commission: 45% of children who play electronic games reported that their parents

restricted the video games the child may play. See Appendix F (Mystery Shopper Survey and

Parent-Child Survey).

45. 1999 Roper Youth Report, supra note 6, at 181 (CDs 72% vs. 27%; video games 52% vs.

23%; movie rentals 54% vs. 16%, respectively, for older and younger children, were usually

allowed to make these purchases without consulting their parents).

46. Kids & Media @ the New Millennium, supra note 8, at 64.

47. Wise Up to Teens, supra note 1, at 275.

48. Kids & Media @ the New Millennium, supra note 8, at 64.

49. Wise Up to Teens, supra note 1, at 275.

50. Kids & Media @ the New Millennium, supra note 8, at 64.

51. Wise Up to Teens, supra note 1, at 275.

52. Kids & Media @ the New Millennium, supra note 8, at 13. More recent statistics show that

these percentages are increasing. According to the most recent Annenberg survey, 77% of

children ages 8-16 have a stereo or CD player in their rooms, 39% a video game player, 30% a

VCR, 20% a computer, and 11% online access. Media in the Home 2000, supra note 8, at 17.

53. See, e.g., George P. Moschis & Roy L. Moore, Decision Making Among the Young: A

Socialization Perspective, 6 J. Consumer Res. 101 (1979); Oswald A. J. Mascarenhas & Mary A.

Higby, Peer, Parent, and Media Influences in Teen Apparel Shopping, 21 J. Acad. Marketing

Sci. 53 (1993).

54. See, e.g., B. Bradford Brown et al., Perceptions of Peer Pressure Conformity, Dispositions

and Self-Reported Behaviors Among Adolescents, 22 Developmental Psychol. 521 (1986).

55. 1999 Roper Youth Report, supra note 6, at 54.

56. Id. at 54.

57. See, e.g., Judith S. Brook, et al., Stages of Drug Use in Adolescence: Personality, Peer, and

Family Correlates, 19 Developmental Psychol. 269 (1983).

58. Kids & Media @ the New Millennium, supra note 8, at 64.

59. See, e.g., George P. Moschis & Gilbert A. Churchill, Consumer Socialization: A Theoretical

and Empirical Analysis, 15 J. Marketing Res. 599 (1978); Scott Ward, Consumer Socialization, 1

J. Consumer Res. 1 (1974).

60. 1999 Roper Youth Report, supra note 6, at 187.

61. Id. at 55-57, 190.

62. Id. at 57 (multiple response question).

63. E.g., Mark Ritson & Richard Elliot, The Social Uses of Advertising: An Ethnographic Study

of Adolescent Advertising Audiences, 26 J. Consumer Res. 260 (1999).

64. Deborah Roedder John, Consumer Socialization of Children: A Retrospective Look at

Twenty-five Years of Research, 26 J. Consumer Res. 183 (1999).

65. Jura Koncius, Targeting Tweens: Retailers Are Homing in on the Next Generation, Wash.

Post, March 23, 2000, at G1.

66. Id.

67. Wise Up to Teens, supra note 1, at 204.

68. Id. at 206.

69. For example, the publisher of Sixteen magazine said that the magazine’s target audience 20

years ago was actually 16 years of age, but that now the magazine caters to 11- and 12-year-olds.

The Teen Factor, supra note 10. See also Chris Reidy, Toy Industry Tries to Reinvent Itself,

Boston Globe, Dec. 15, 1998, at C8, (“Today’s computer-savvy children quickly tire of rag dolls

and toy soldiers. . . . ‘Kids are going on the computer in kindergarten,’ said editor Chris Byrne of

Playthings Marketplace, an industry newsletter. ‘Kids are giving up traditional toys by 6 or 7.’”).

70. Wise Up to Teens, supra note 1, at 206-07.

71. Id. at 90.

72. Id. at 292.

73. Yankelovich Clancy Shulman, Getting Hip to Free-Spending Teens, Adweek, June 15, 1992,

at 70.

74. See Wise Up to Teens, supra note 1, at 296.

75. See generally Kids & Media @ the New Millennium, supra note 8, at 45-60; Media in the

Home 2000, supra note 8, at 39; Family Rules and Children’s Media Use in the Home, supra

note 36, at 36-37 (2000).

76. See Wise Up to Teens, supra note 1, at 90-93.

77. See Primedia, Inc., 1998 10-K Report, at 5 (accessible through Primedia’s Web site

www.primedia.com).

78. See Wise Up to Teens, supra note 1, at 170.

79. Daniel Golden, ZapMe Is Targeted over Student Data Collected on Web, Wall Street J., Jan.

19, 2000, at B6; Nancy Willard, Capturing the “Eyeballs” and “E-wallets” of Captive Kids in

School: Dot.com Invades Dot.edu, http://netizen.uoregon.edu/documents/eyeballs.html (visited

July 18, 2000).

80. See Report Part V.B.5.

81. Id.; see generally Wise Up to Teens, supra note 1, at 91.

82. Wayne Friedman, Street Marketing Hits the Internet, Advertising Age, May 1, 2000, at 32.

83. See, e.g., Michael Colton, Welcome to My Hype-Industrial Complex, Baby!, Brill’s Content

(Sept. 1999) (noting product placements), www.brillscontent.com/features/austin_0999.html

(visited Sept. 1, 2000).

84. Denise E. DeLorme & Leonard N. Reid, Moviegoers’ Experiences and Interpretations of

Brands in Films Revisited, 28:2 J. Advertising 71 (Summer 1999).

85. Dade Hayes, The Preshow Must Go on … and on…, Variety, Nov. 8, 1999, at 9.

86. Margaret Littman, How Marketers Track Underage Consumers, Marketing News, May 8,

2000, at 4.

87. The forbidden fruit thesis is based on psychological theories including reactance theory and

commodity theory. Reactance theory suggests that when an individual’s freedom to engage in a

particular behavior is threatened or eliminated, the individual will experience an unpleasant

motivational state that consists of pressures to re-establish the threatened or lost freedom.

Commodity theory suggests that any commodity that is perceived as unavailable or that can only

be obtained with effort will be more valued than a commodity that can be obtained freely. See

Brad J. Bushman & Angela D. Stack, Forbidden Fruit Versus Tainted Fruit: Effects of Warning

Labels for an Attraction to Television Violence, 2 J. Applied Experimental Psychol. 207 (1996).

88. See Peter G. Christenson, The Effects of Parental Advisory Labels on Adolescent Music

Preferences,” 42 J. Comm. 106 (1992) [hereinafter The Effects of Parental Advisory Labels].

89. John Morkes & Helen L. Chen et al., Young Adolescents’ Responses to Movie, Television,

and Computer Game Ratings and Advisories (May 1997) (unpublished paper presented at the

International Communication Association Conference) (on file with the Commission)

[hereinafter Young Adolescents’ Responses].

90. Id. For other studies showing a forbidden fruit effect, see, e.g., Joanne Cantor & Kristen

Harrison, Ratings and Advisories for Television Programming: University of Wisconsin,

Madison Study, in National Television Violence Study: Vol. I III-1, III-14 (1994) (not one boy

age 10-14 opted to watch a movie he believed had been rated G over others rated PG, but 50% of

boys age 10-14 presented with the same options elected to watch that movie when they believed

it was rated PG-13 or R); The Impact of Video Game Ratings, supra note 41 (students in grades 4

through 12 selected video games assigned “13 and older” rating as more “fun” than games

assigned a “suitable-for-all-ages” rating).

91. The Effects of Parental Advisory Labels, supra note 88.

92. See, e.g., Bruce A. Austin, The Influence of the MPAA’s Film-Rating System on Motion

Picture Attendance: A Pilot Study, 106 J. Psychol. 91 (1980) (different MPAA ratings assigned

to films had no significant impact on high school students’ desire to see the films); Joanne

Cantor et al., Ratings and Advisories for Television Programming, in National Television

Violence Study: Vol. II (1997) (the MPAA ratings were the only one of the eight rating systems

tested that significantly affected older (age 10 to 15) children’s desire to see the programs, with

the results reflecting a forbidden fruit effect).

93. The Effects of Parental Advisory Labels, supra note 88; Young Adolescents’ Responses,

supra note 89.

Appendix C

FIRST AMENDMENT ISSUES IN PUBLIC

DEBATE OVER GOVERNMENTAL REGULATION OF

ENTERTAINMENT MEDIA PRODUCTS WITH VIOLENT CONTENT

This Appendix addresses First Amendment concerns that have been raised in the public

debate regarding the marketing of entertainment media products with violent content to children.1

It discusses the relevance of the First Amendment to the Commission’s role in undertaking its

study and issuing this Report, and to private sector restrictions on advertising and marketing. It

also discusses the First Amendment standards and considerations that would most likely be used

to evaluate proposals for government restrictions on the advertising and marketing of

entertainment media products with violent content.

BACKGROUND

The First Amendment to the United States Constitution limits the government from

making any law or regulation that would ban or indirectly tend to suppress – that is, “chill” –

speech or expression.2 Historically, the First Amendment has been interpreted broadly to protect

individuals from government attempts to suppress political, ideological, or scientific ideas or

information, and to defend against government incursions on freedom of expression in art,

literature, movies, and music.3 By contrast, the First Amendment has been interpreted to provide

more narrow protection for commercial expression such as advertising.4 The Supreme Court also

has placed outside the protections of the First Amendment certain limited classes of speech that

are viewed as having little or no value at all because they do not promote democratic ideals:

incitement,5 fighting words,6 and obscenity.7

II.

THE FTC’S STUDY, THE FIRST AMENDMENT, AND SELF-REGULATION

In general, the First Amendment applies only to government’s attempts to restrict speech

and expression through legislation, regulation, and enforcement actions. Such restriction

includes the passage of legislation by the United States Congress or state or local legislatures and

the promulgation of implementing regulations by federal agencies such as the Federal Trade

Commission and their state and local counterparts. It does not generally apply to a study or

investigation by a governmental agency or commission “in the absence of some actual or

threatened imposition of government power or sanction.”8 The FTC’s objective in undertaking

this Report was to study whether the entertainment industries are marketing media products with

violent content to children, and to analyze the industries’ advertising and promotional activities

in light of the existing self-regulatory systems. Its objective was not to recommend legislation or

any government action.

Nor does the First Amendment generally apply to private activity such as industry selfregulation. The exception is when a private party’s actions are attributable to the government,

either when: (i) the private party exercises a public function that is traditionally exclusively

reserved to the State,9 or (ii) the government has exercised coercive power or provided such

significant encouragement that the challenged action can fairly be attributed to the government.10

Therefore, the Constitution would not preclude the entertainment media industries themselves

from taking steps to restrict or limit advertising and marketing of media products with violent

content to children, as such conduct is private activity beyond the reach of the First Amendment.

III.

THE COMMERCIAL/NON-COMMERCIAL SPEECH DISTINCTION

General Principles

The First Amendment’s protection of speech and expression is broad but not absolute.11

In certain cases, the courts have upheld restrictions on speech when the government’s

justification for restricting the speech outweighs the First Amendment values at issue.12 In

analyzing governmental restrictions on speech, the Supreme Court traditionally has divided

speech into two categories – commercial speech and “fully protected,” non-commercial speech.13

Although the Supreme Court has struggled to define the differences between these two

categories, there are some clear general rules. Non-commercial speech is generally viewed as

political, ideological, artistic, or scientific expression. Commercial speech has been defined

broadly as speech “related solely to the economic interests of the speaker and its audience,”14

and described more narrowly as speech that does “no more than propose a commercial

transaction.”15

Whether speech is categorized as commercial or non-commercial is critical because the

degree of First Amendment protection varies depending on the category of speech.

Traditionally, the Supreme Court has applied a “strict scrutiny” standard to non-commercial

speech, while analyzing commercial speech under an “intermediate scrutiny” test.16 In practice,

to restrict non-commercial speech, the government must prove that the restriction promotes a

compelling government interest and is narrowly tailored to promote that interest.17 If a less

restrictive alternative would serve the government’s purpose, the government must use that

alternative.18 By contrast, to restrict commercial speech that concerns lawful activity and is not

misleading, the government must prove that its interest is substantial, that the regulation directly

advances the governmental interest asserted, and that it is not more extensive than is necessary to

serve that interest.19

Advertisements and Promotions for Entertainment Media Products

The Supreme Court generally has viewed advertising for particular specified commercial

products or professional services as commercial speech. Under this approach, it has upheld

limitations on speech such as restrictions on targeted direct mail solicitations by lawyers to

families of accident or disaster victims20 and bans on solicitations by commercial enterprises on

public university premises.21 The categorization of advertising for entertainment media products

as commercial or non-commercial speech is not as settled. Although some observers argue that

advertisements for movies, music recordings, and electronic games should be viewed as

commercial speech because they are merely advertising products that have been placed in the

stream of commerce for profit,22 industry members and some First Amendment advocates assert

that such advertisements should be analyzed as protected, non-commercial speech because:

(i) they promote a product that itself is entitled to protection; and (ii) they often incorporate or

summarize parts of the underlying non-commercial expression, and therefore are, in substance,

nothing more than a particular subset of the content of the non-commercial expression.23

The Supreme Court has never specifically ruled on this issue, and the existing federal and

state court opinions are not uniform.24 At least one state court has held that an advertisement for

a movie “goes beyond proposal of a commercial transaction and encompasses the ideas

expressed in the motion picture which it promotes; thus it is afforded the same First Amendment

protections as the motion picture . . . .”25 State courts in New York and California have reached

opposite conclusions regarding whether promotional statements on a book cover and flyleaf

constitute commercial or non-commercial speech.26 Given that the law in this area is still

developing, this Appendix will set forth the applicable standards both for commercial and noncommercial speech and review current proposals under both paradigms.

IV.

THE STANDARD FOR REGULATION OF COMMERCIAL SPEECH

Since 1980, the courts have analyzed regulations affecting advertising for commercial

products or professional services under the four-part test set forth for assessing commercial

speech restrictions by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public

Service Commission of New York.27 The Central Hudson test asks:

(1) whether the speech at issue concerns lawful activity and is not misleading;

(2) whether the asserted government interest is substantial; and, if so,

(3) whether the regulation directly advances the governmental interest asserted; and

(4) whether it is not more extensive than is necessary to serve that interest.28

In this analysis, the government bears the burden of identifying a substantial interest and

justifying the challenged restriction: “The government is not required to employ the least

restrictive means conceivable, but it must demonstrate narrow tailoring of the challenged

regulation to the asserted interest – a fit that is not necessarily perfect but reasonable; that

represents not necessarily the single best disposition but one whose scope is in proportion to the

interest served.”29 Moreover, “the four parts of the Central Hudson test are not entirely discrete.

All are important and, to a certain extent, interrelated: Each raises a relevant question that may

not be dispositive to the First Amendment inquiry, but the answer to which may inform a

judgment concerning the other three.”30

STANDARDS FOR REGULATION OF NON-COMMERCIAL SPEECH

Non-commercial speech receives the highest degree of constitutional protection. But, the

government may still regulate certain aspects of that speech provided it meets certain

requirements. In evaluating non-commercial speech, the courts distinguish between contentbased restrictions and content-neutral restrictions. As with the distinction between commercial

and non-commercial speech, “[d]eciding whether a particular regulation is content-based or

content-neutral is not always a simple task.”31

Content-Neutral Restrictions

Content-neutral restrictions regulate speech without regard to its subject matter or the

viewpoint conveyed.32 The Supreme Court has held that the “government may impose

reasonable restrictions on the time, place, or manner of protected speech, provided the

restrictions ‘are justified without reference to the content of the regulated speech, that they are

narrowly tailored to serve a significant government interest, and that they leave open ample

alternative channels for communication of the information.’”33 Such content-neutral regulations

may be permissible even when they incidentally affect the content of speech to some degree

because, in most cases, such regulations “pose a less substantial risk of excising certain ideas or

viewpoints from the public dialogue.”34 Examples of content-neutral restrictions that have been

held to be constitutional include laws that restrict the distribution of printed materials to prevent

litter in a public space35 or laws that prohibit the use of loudspeakers in order to reduce noise.36

Facially neutral regulations, however, can be invalid if they have a disproportionate effect on a

particular type of speech or expression.37

Content-Based Restrictions

Content-based regulations regulate speech based on its subject matter or viewpoint. They

seek to “suppress, disadvantage, or impose differential burdens upon speech because of its

content.”38 Such regulations are subject to the strictest constitutional scrutiny, meaning that the

government must prove that: (i) the regulation serves a compelling governmental interest;

(ii) the means chosen to achieve that interest are narrowly tailored; and (iii) it has chosen the

“least restrictive means” of accomplishing the government’s objective.39 The operative

distinctions between a court’s review of a content-based regulation and a content-neutral

regulation is that in the former case, the government must meet the “compelling interest” and

“least restrictive means” standards, while in the latter situation the government need only prove a

“significant interest” and the availability of “ample alternative channels for communication of

the information.”

Constitutional scholars generally agree that governmental regulation of media products

with violent content, “whether in the form of banning, rating, or channeling of violent media

content, necessarily requires the government to make a judgment as to what content lies within

the ambit of the statute and what content does not,” thereby triggering content-based strict

scrutiny review.40 Although content-based regulations are considered presumptively invalid,

such a regulation may withstand First Amendment analysis if: (i) it falls within certain

categories in which the Supreme Court has permitted a more liberal standard of review, as

described below, or (ii) the government is able to establish that the regulation meets the strict

scrutiny test.

1. Exceptions to strict scrutiny for content-based restrictions on noncommercial speech relevant to entertainment media context

Obscenity

The Supreme Court has carved out an exception to the First Amendment for obscenity of

a sexual nature, holding that it is simply “not within the area of constitutionally protected speech

or press.”41 In Miller v. California,42 the Court held that speech is obscene and subject to full

regulation when: “(a) ‘the average person, applying contemporary community standards’ would

find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts

or describes, in a patently offensive way, sexual conduct specifically defined by the applicable

state law; and (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific

value.”43 Under the Miller test, many courts have upheld state restrictions on obscene

materials.44

Protection of minors

The Supreme Court has long recognized that the “well-being of its children is of course a

subject within the State’s constitutional power to regulate” and upheld content-based restrictions

on speech – including complete bans on children’s access to certain material – that would not

survive constitutional scrutiny if applied to adults.45 These content-based restrictions are

primarily aimed at constitutionally protected “indecent” material.46 In such cases, the courts have

not required the government to demonstrate to a scientific certainty that the speech at issue

causes harm to minors.47

Nonetheless, the government’s interest in protecting children does not always outweigh

the First Amendment considerations involved. The Supreme Court has struck down a regulation

requiring cable operators either to scramble sexually explicit channels in full or to limit

programming on such channels to certain hours, as well as a statute criminalizing the knowing

transmission of obscene or indecent messages to minors over the Internet, on “overbreadth”

grounds because they infringed on adults’ First Amendment rights.48 The Supreme Court has

repeatedly emphasized that regardless of the government’s interest in protecting children, it may

not “reduce the adult population . . . to . . . only what is fit for children.”49 “‘Regardless of the

government’s interest’ in protecting children, ‘the level of discourse reaching a mailbox cannot

be limited simply to that which would be suitable for a sandbox.’”50

Television and radio broadcasting

To a large degree, the higher level of governmental regulation that the Supreme Court has

permitted in the area of broadcast television and radio corresponds to that permitted for obscenity

and the protection of minors.51 The Supreme Court has declined to apply the strict scrutiny test

to content-based regulations of these broadcast media for three reasons: (i) the “scarcity” of

airwaves available to the broadcast media;52 (ii) the “uniquely pervasive” presence of the

broadcast media in the lives of all Americans coupled with an individual’s right to be left alone

in the privacy of the home;53 and (iii) the fact that broadcasting is easily accessible to even very

young children.54 Essentially, the Court has been concerned that a child could simply turn on the

television and, without more, be subjected to indecent material. Under this rationale, the Court

has upheld certain content-based restrictions on broadcasting.55 To date, however, the Supreme

Court has not addressed the constitutionality of content-based restrictions on violent content in

broadcast television or radio.

VI.

REGULATORY PROPOSALS AND FIRST AMENDMENT ANALYSIS

This section explores First Amendment issues likely to arise if laws were enacted to

restrict the advertising and marketing of entertainment media products with violent content to

children. As noted earlier,56 this area of First Amendment law is still unsettled.

Mandatory Rating or Labeling Systems

Some advocates have proposed a government-imposed parental advisory system – either a

separate rating or labeling system for each industry or one uniform system for all or most of the

entertainment industries.57 Most commentators agree that any law requiring the rating or labeling

of entertainment media products would raise the issue of “compelled speech” (because such a

law or regulation would require a private party to express or endorse a particular message),

thereby subjecting such a system to First Amendment review.58

The First Amendment analysis of such a law would turn on whether the court viewed

government-imposed mandatory ratings or labels as affecting non-commercial or commercial

speech. If viewed as affecting non-commercial speech, the court would first determine whether

the labeling scheme is content-based or content-neutral. Although there has been some debate on

this issue, many First Amendment scholars have argued that, were the government to mandate

that media producers identify or label particular programs on the basis of the violence that they

contain, courts would view the regulation as content-based, and therefore subject to the highest

form of strict scrutiny and not as a consumer education label subject to a more lenient standard of

review.59 If viewed as affecting only commercial speech, the court would apply the Central

Hudson test set forth above. Thus, the constitutionality of the law or regulation would depend in

large part on whether the government could establish a: (i) “compelling” (non-commercial

speech) or “substantial” (commercial speech) interest in providing children and their parents with

information necessary to make judgments about the appropriateness of particular entertainment

products with violent content; (ii) whether the government could establish that such a

rating/warning system either is “narrowly tailored” to achieve (non-commercial speech) or

“directly advances” (commercial speech) that objective; and (iii) whether such a ratings/warning

system is either the “least restrictive means” of accomplishing (non-commercial speech) or a

“reasonable fit” with (commercial speech) the government’s objectives given that such a system

might impinge on the creativity of media producers and artists.60

Restrictions on Advertising and Marketing Targeting and Placement

Some advocates have proposed regulating advertising for entertainment media products

with violent content to children by limiting advertisements and promotions for these products to

certain types of media or venues that are not likely to have a large number of children in the

audience.61 Such regulations might include restrictions limiting advertisements for R-rated films,

M-rated electronic games, or explicit-content labeled recordings to television or radio programs

with a high percentage of over-16 audience members and prohibitions against advertising these

media products in school-based media or on school property, such as cafeteria bulletin boards

and athletic scoreboards.

Again, the level of First Amendment scrutiny that would likely apply to governmentimposed restrictions of this type would turn on whether the advertisements for these products are

classified as commercial speech or non-commercial speech. If classified as commercial speech,

the court would apply the four-part Central Hudson test. If viewed as non-commercial speech,

the court would first determine whether the restriction is content-based or content-neutral and

then apply the applicable constitutional tests. In this context, because the restriction is premised

on protecting minors from advertising for violent content and not on merely providing consumers

with information, it is likely to be viewed as content-based.

A court’s approach to such restrictions would depend in large part on three issues relevant

to judicial analysis in non-commercial and commercial speech cases: (i) whether the government

could, on the basis of the scientific, psychological, and empirical research establish a

“compelling” (non-commercial speech) or “substantial” (commercial speech) “reason to protect

minors from advertisements for entertainment products with violent content by restricting

advertisements for such products to media and venues without substantial numbers of children;

(ii) whether the regulation is “narrowly tailored” to achieve (non-commercial speech) or “directly

advances” (commercial speech) that interest; and (iii) whether the government could establish

that such restrictions are either the “least restrictive means” of accomplishing (non-commercial

speech) or a “reasonable fit” with (commercial speech) the government’s objectives given that

such restrictions might inevitably affect adults as well as children. Under either standard, a court

would also need to consider whether the challenged regulation would meet the constitutional

standards for vagueness (i.e., whether the regulatory definition of what constitutes violence is

sufficiently precise “so that those who are governed by the law and those that administer it will

understand its meaning and application”62) or overbroad (i.e., whether it would affect adults as

well as children and whether it would also affect socially valuable and educational media that

contain violence).63

Regulation of Violent Content in Advertising for Movies, Music, and Electronic

Games

Regulations aimed at limiting violent content in the advertising of media products would

be subject to largely the same First Amendment analysis described above. Accordingly, if

advertisements for media products were considered non-commercial speech, any regulation

affecting the content of these advertisements clearly would be content-based and subject to strict

scrutiny. Given the courts’ general aversion to content-based restrictions, the government’s

burden of proof to establish the constitutionality of such restrictions would be quite high.

Some commentators have approached the issue of violent content by calling for courts to

treat violence like obscenity – essentially taking it out of the realm of constitutionally protected

speech, and thereby permitting increased regulation.64 They assert that depictions of violence

that go beyond acceptable limits, like obscenity, can be differentiated from depictions of violence

that have artistic or literary merit.65 To date, however, those courts that have considered the issue

have held that violent speech or expression cannot be treated like obscenity unless the work also

contains material that is (sexually) obscene.66 Many of those courts – and First Amendment

scholars – note that it would be difficult to create a workable definition of violence that would

not be overbroad or vague.67 They argue that definitions that attempt to define violence by

describing it either in terms of the Miller test or in terms of specific violent crimes (e.g., murder,

rape, aggravated assault, mayhem, and torture) would be overbroad because they would apply to

large categories of valuable speech protected by the First Amendment or they would be too vague

to give sufficient notice to product developers as to what would be considered obscene

violence.68

Should federal or state legislatures adopt laws treating violence like obscenity, it

may fall to the courts to interpret precisely what constitutes violence that is equivalent to

obscenity.69

ENDNOTES

1. Trade associations representing members of the movie and music industries submitted “white

papers” to the Commission arguing vigorously that advertisements for movies and music are

entitled to full First Amendment protection. See Memorandum from the Recording Industry

Association of America (“RIAA”), BMG, EMI, Sony Music, Universal, and Warner Music

Group to Federal Trade Commission, First Amendment Issues Relevant to Federal Trade

Commission Study on Marketing Practices of Recording Industry (Feb. 14, 2000) [hereinafter

Recording Industry Memorandum]; Walter E. Dellinger & Charles Fried, A Paper Presented to

the Federal Trade Commission on behalf of Sony Pictures Entertainment Inc., Metro-GoldwynMayer Studios, Inc., Miramax Films, Paramount Pictures Corporation, Twentieth Century Fox

Film Corporation, Universal City Studios, Inc., Warner Bros., and Walt Disney Pictures and

Television, First Amendment Implications of the Federal Trade Commission’s Inquiry into the

Marketing to Minors of Motion Pictures That Depict Violence (Jan. 19, 2000) [hereinafter

Motion Pictures Industry Paper].

2. U.S. Const. amend. I.

3. The Supreme Court has expressly stated that movies and music fall within the First

Amendment. See, e.g., Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65 (1981) (declaring, in

case striking down municipal ordinance prohibiting nude dancing, that “[e]ntertainment, as well

as political and ideological speech, is protected; motion pictures, programs broadcast by radio

and television, and live entertainment, such as musical and dramatic works fall within the First

Amendment guarantee.”). Several federal courts have debated whether electronic games should

receive the same First Amendment protections as the other entertainment media but have not yet

decided the issue conclusively. Compare Rothner v. City of Chicago, 929 F.2d 297 (7th Cir.

1991) (indicating that First Amendment protection of electronic games may depend on creative

content), with Malden Amusement Co. v. City of Malden, 582 F. Supp. 297 (D. Mass. 1983)

(holding that video games are not entitled to First Amendment protection because they do not

contain expressive or informational content), and America’s Best Family Showplace Corp. v.

City of New York, 536 F. Supp. 170 (E.D.N.Y. 1982) (same). In deciding an appeal of a motion

to dismiss, the Seventh Circuit in Rothner developed an approach that considers the extent to

which the electronic game at issue contains artistic content:

On the basis of the complaint alone, we cannot tell whether the video games at

issue here are simply modern day pinball machines or whether they are more

sophisticated presentations involving storyline and plot that convey to the user a

significant artistic message protected by the first amendment. Nor is it clear

whether these games may be considered works of art. To hold on this record that

all video games – no matter what their content – are completely devoid of artistic

value would require us to make an assumption entirely unsupported by the record

and perhaps totally at odds with reality. As the Supreme Court has confessed its

inability to comprehend fully the technology of the cablevision industry on the

basis of a complaint, so we must confess an inability to comprehend fully the

video game of the 1990s.

Rothner, 929 F.2d at 303. Given the substantial innovations in the current generation of

electronic games, including their use of movie clips, music, animation, and the development of

plot and character, however, some commentators predict that many courts will eventually accord

the same protection to electronic games as to other types of entertainment media. See David B.

Goroff, The First Amendment Side Effects of Curing Pac-Man Fever, 84 Colum. L. Rev. 744,

752–53, 764 (1984); Matthew Hamilton, Graphic Violence in Computer and Video Games: Is

Legislation the Answer? 100 Dick. L. Rev. 181, 190 (1995).

4. See, e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) (Constitution affords

“commercial speech a limited measure of protection, commensurate with its subordinate position

in the scale of First Amendment values . . . .”).

5. See Brandenburg v. Ohio, 395 U.S. 444 (1969). The Brandenburg Court’s “incitement”

decision requires proof of incitement to imminent and immediate lawless action. Id. at 447. In a

law review article discussing proposals to regulate violence on television, Judge Harry Edwards

of the United States Court of Appeals for the District of Columbia Circuit explained that the

incitement element would be difficult for the government to prove:

It is apparent that the incitement element of the Brandenburg test, alone, fails to

capture government regulation of television violence. Simply put, the violent fare

on television does not explicitly urge viewers to commit the evils with which the

legislature may be concerned. Nor can such intent reasonably be attributed to

television executives and producers. Largely for this reason, courts and

commentators have concluded with near unanimity that televised portrayals of

violence are not “directed to inciting or producing imminent lawless action.”

Harry T. Edwards & Mitchell N. Berman, Regulating Violence on Television, 89 Nw. U. L. Rev.

1487, 1526 (1995); cf. Estate of Jessica James v. Meow Media, Inc., 90 F. Supp. 2d 798 (W.D.

Ky. 2000) (granting defendant’s motion to dismiss tort claims because plaintiff failed to prove

that defendant’s actions, creation and distribution of a movie, games, and Internet materials,

caused death of plaintiff’s daughter). Judge Edwards suggested, however, that if television

producers aired material intended to incite or produce violent behavior, the “mere fact of its

being telecast would not immunize the programming from regulation under Brandenburg.”

Edwards & Berman, supra, at 1526 n.186.

6. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Chaplinsky’s “fighting words”

doctrine has been used only rarely, and has been limited to personally directed insults or taunts

that tend to provoke immediate violent reaction. See Gooding v. Wilson, 405 U.S. 518, 524

(1972) (limiting “fighting words” doctrine); Cohen v. California, 403 U.S. 15, 20 (1971) (same);

Dawn Christine Egan, “Fighting Words” Doctrine: Are Police Officers Held to a Higher

Standard, or per Bailey v. State, Do We Expect No More from our Law Enforcement Officers

than We Do from the Average Arkansan?, 52 Ark. L. Rev. 591, 591–92 (1998) (noting that the

Supreme Court has not upheld a conviction based on the “fighting words” doctrine since

Chaplinsky). Because movies, music recordings, and electronic games are not explicitly directed

at an individual person, most observers agree that the Chaplinsky doctrine is not relevant to the

current public debate over violent entertainment media. See E. Barret Prettyman, Jr. & Lisa A.

Hook, 38 Fed. Comm. L.J. 317, 372 n.228 (1987); but see Sanjiv N. Singh, Cyberspace: A New

Frontier for Fighting Words, 25 Rutgers Computer & Tech. L.J. 283 (1999) (arguing that the

“fighting words” doctrine could find a new life in cyberspace).

7. See Miller v. California, 413 U.S. 15 (1973); infra Part V.B.1.a. for a discussion of the Miller

test for obscenity.

8. Penthouse Int’l Ltd. v. Meese, 939 F.2d 1011, 1017 (D.C. Cir. 1991), cert. denied, 503 U.S.

950 (1992). In Penthouse, the U.S. Attorney General established a commission to study the

impact of pornography in the United States. The commission was instructed to make

recommendations to the Attorney General concerning ways in which the spread of pornography

could be contained. After holding several public hearings, the commission sent letters to 23

corporations including Penthouse, stating, among other things, that the commission had received

testimony indicating “that your company is involved in the sale or distribution of pornography.”

Id. at 1013. The recipients of the letters were advised to inform the commission if they

disagreed, and were further advised that failure to respond would be taken as an indication of no

objection to the testimony. Id.

Penthouse sued for injunctive and declaratory relief, arguing that the commission was

chilling the distribution of constitutionally protected speech. Id. at 1012. The court rejected

Penthouse’s argument and held that its First Amendment rights were not chilled because of the

lack of government threat. The court noted that the commission had no tie to prosecutorial

power nor authority to censor publications. Id. at 1015. The court noted that the letter to the 23

corporations did not threaten prosecution or intimate any intent to proscribe the distribution of

the publications, and stated that it did not “believe that the Commission ever threatened to use

the coercive power of the state against recipients of the letter.” Id. Compare with Bantam Books

v. Sullivan, 372 U.S. 58 (1963) (activities of Rhode Island Commission to Encourage Morality in

Youth violated First Amendment’s prohibition against “informal censorship” because

Commission had power to investigate and recommend prosecution of booksellers who sold

material that Commission determined was obscene or indecent).

9. This is known in constitutional law as the “public function” prong of the “state action”

doctrine. See Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1980).

10. This is known in constitutional law as the “nexus” prong of the “state action” doctrine. See

Rendell-Baker v. Kohn, 457 U.S. 830 (1982); Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982);

Blum v. Yaretsky, 457 U.S. 991 (1982); cf. Catherine J. Ross, Anything Goes: Examining the

State’s Interest in Protecting Children from Controversial Speech, 53 Vand. L. Rev. 427, 491–93

(2000) (noting that parental concern over objectionable media products has led some national

retail stores to refuse to stock such products or to require an edited version).

11. As Judge Harry T. Edwards of the D.C. Circuit has explained:

The age when courts and commentators could debate whether the First

Amendment constituted an “absolute” barrier to government regulation of speech

is long gone. In its place stands a complex set of rules that directs a reviewing

court to consider such diverse factors as the form and effect of the regulation, the

purposes of the regulators, the value of the speech regulated, and the type of

media involved.

Edwards & Mitchell, supra, 1490–91 (citation omitted).

12. See Nixon v. Shrink Miss. Gov’t PAC, 120 S. Ct. 897, 906 (2000) (upholding contribution

limits on state office seekers based on the state’s interest in preventing corruption and the

appearance of corruption in the political process).

13. See generally P. Cameron DeVore, Advertising and Commercial Speech, 582 Practising L.

Inst. 715 (Nov. 1999).

14. Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.S. 557,

561 (1980).

15. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748,

762 (1976) (quoting Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 385

(1973)).

16. See Reno v. ACLU, 117 S. Ct. 2329 (1997); Central Hudson, 447 U.S. 557.

17. See United States v. Playboy Entertainment Group, Inc., No. 98-1682, 2000 WL 646196, at

*7 (U.S. May 22, 2000).

18. Id.

19. See supra Part IV. The exact degree of protection accorded to commercial speech is in flux.

Although the Supreme Court has adhered to the “intermediate scrutiny” standard, recently,

several Justices have suggested that the distinction between the two types of speech should be

narrowed, and that “truthful, noncoercive” commercial speech about lawful activities should

receive the same degree of constitutional protection, i.e., strict scrutiny, as non-commercial

speech. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). In 44 Liquormart, at

least four Justices suggested that truthful, non-misleading commercial speech should receive the

same First Amendment protection as non-commercial speech, id. at 500, 504 (Stevens, Kennedy,

Souter, & Ginsburg, JJ., plurality opinion), while Justice Thomas advocated for the elimination

of the distinction between commercial and non-commercial speech. Id. at 522 (Thomas, J.,

concurring in part, and concurring in the judgment). Although the Supreme Court has not yet

taken the step of elevating commercial speech to the same status as non-commercial speech,

many judges and academics have already begun to discuss the implications of such a doctrinal

shift. See Martin H. Redish, First Amendment Theory and the Demise of the Commercial Speech

Distinction: The Case of the Smoking Controversy, 24 N. Ky. L. Rev. 553 (1997). The Supreme

Court has emphasized, however, that even if truthful commercial speech is accorded a higher

level of constitutional protection, false and deceptive commercial speech would remain subject to

full regulation by the government. See Ibanez v. Florida Dep’t of Bus. & Prof’l Regulation, 512

U.S. 136, 142 (1994); see also 15 U.S.C. §§ 45(a)(1), 45(n) (authorizing FTC to regulate

misleading and deceptive speech and to proscribe “unfair” advertising and marketing – i.e., an

act or practice that “causes or is likely to cause substantial injury to consumers that is not

reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to

consumers or to competition.”)

20. Florida Bar v. Went For It, Inc., 515 U.S. 618, 635 (1995).

21. See Board of Trustees of SUNY v. Fox, 492 U.S. 469 (1989).

22. Cf. Robert Adler, Here’s Smoking at You Kid: Has Tobacco Product Placement in the

Movies Really Stopped?, 60 Mont. L. Rev. 243, 275 (1999).

23. Specifically, the Recording Industry Memorandum states that “[A]dvertisting and marketing

materials for recordings virtually always incorporate CD titles that are themselves expressive,

and may also incorporate song titles and selected lyrics as well. These materials also frequently

reproduce or incorporate album (or now, CD) covers that, themselves, are clearly art – another

form of protected expression.” Recording Industry Memorandum at 36; cf. Rogers v. Grimaldi,

875 F.2d 994, 998 (2d Cir. 1989) (movie title deserves First Amendment protection so long as

the title does not mislead as to authorship and content of movie).

24. Those who argue in favor of full constitutional protection for advertising and marketing

activities for entertainment media products rely on the Supreme Court’s dicta in a case involving

advertising for contraceptives, which suggested that strict scrutiny “may be appropriate in a case

where [a company] advertises an activity itself protected by the First Amendment.” Bolger v.

Youngs Drug Product, 463 U.S. 60, 67 n.14 (1983).

25. See Lewis v. Columbia Pictures Indus., Inc., 23 Media L. Rep. 1052 (Cal. Ct. App. 4th Dist.

Nov. 8, 1994); see also Lane v. Random House, Inc., 985 F. Supp. 141, 152 (D.D.C. 1995).

26. Compare Lacoff v. Buena Vista Publ’g, Inc., No. 20-091, 606005/98, 2000 WL 202625, at

*6 (N.Y. Sup. Ct. Jan. 28, 2000) (book cover and flyleaf for Beardstown Ladies’ Common-Sense

Investment Guide is not “advertising material” evaluated under commercial speech doctrine, but

non-commercial speech fully protected by First Amendment), with Keimer v. Buena Vista Books,

Inc., 89 Cal. Rptr. 2d 781 (Ct. App. 1st Dist. 1999) (book cover and flyleaf containing allegedly

false statements about investment returns constituted commercial speech entitled only to

“qualified” free speech protection).

27. 447 U.S. 557.

28. Id. at 566.

29. Greater New Orleans Broad. Ass’n v. United States, 119 S. Ct. 1923, 1932 (1999) (internal

quotation marks omitted).

30. Id. at 1930; see also 44 Liquormart, 517 U.S. 484, 499–500.

31. Turner Broad. Sys. v. FCC, 512 U.S. 622, 642 (1994). A content-based restriction, for

example, would be a restriction that prohibited the publication of all political advertisements. A

viewpoint-based restriction, which is a subset of a content-based restriction, would be a

restriction that prohibited the publication of a political advertisement advocating a certain

political party or idea. By contrast, an example of a content-neutral restriction would be a

restriction that prohibited any advertising inside federal offices.

32. Ladue v. Gilleo, 512 U.S. 43, 54–59 (1994) (distinguishing between content-based and

content-neutral regulations).

33. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community for

Creative Non-Violence, 468 U.S. 288, 293 (1984)).

34. Turner, 512 U.S. at 642.

35. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804–05 (1984)

(finding that “[t]he text of the ordinance [prohibiting the posting of signs on public property] is

neutral – indeed it is silent – concerning any speaker’s point of view. . . . It is well settled that

the state may legitimately exercise its police powers to advance esthetic values.”).

36. Ward, 491 U.S. 781.

37. Turner, 512 U.S. at 645.

38. Id. at 642.

39. See Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987).

40. See United States v. Playboy Entertainment Group, Inc., No. 98-1682, 2000 WL 646196; see

also The [New York Bar Association] Committee on Comm. and Media L., Violence in the

Media: A Position Paper, 52 The Record 310 (Apr. 1997).

41. Miller, 413 U.S. at 23.

42. Id.

43. Id. at 24.

44. See Recreational Developments of Phoenix, Inc. v. City of Phoenix, 83 F. Supp. 2d 1072,

1095 (D. Ariz. 1999) (denying plaintiff’s motion to enjoin an obscenity ordinance because the

state law mirrored the Miller test); County of Kenosha v. C&S Management, Inc., 223 Wis. 2d

373 (1999) (upholding the constitutionality of a Wisconsin law prohibiting the sale of obscene

material based on the Miller test).

45. Ginsberg v. New York, 390 U.S. 629, 639 (1968).

46. Id. (upholding statute prohibiting sale of obscene – as to minors – printed material to minors

under seventeen years of age whether or not it would be obscene to adults); see also FCC v.

Pacifica Foundation, 438 U.S. 726 (1978) (upholding FCC finding that broadcast of radio

monologue containing references to excretory or sexual activities or organs was “patently

offensive” because it was broadcast in the afternoon when children are in the audience); Action

for Children’s Television III, 58 F.3d 654, 664–65 (D.C. Cir. 1995) [hereinafter ACT III]

(upholding a slightly modified version of the FCC’s safe harbor rules for indecent broadcasts

based on government’s compelling interest in helping parents exercise their responsibility for

their children’s well-being).

47. In ACT III, the D.C. Circuit reviewed the case law and concluded that the Supreme Court has

never required a scientific showing of psychological harm to establish the constitutionality of

measures to protect minors from indecent speech: “Congress does not need the testimony of

psychiatrists and social scientists in order to take note of the coarsening of impressionable minds

that can result from persistent exposure to sexually explicit material just this side of legal

obscenity.” 58 F.3d at 662. It remains to be seen, however, whether the courts would require

scientific evidence of harm caused by media violence in order to establish a compelling

government interest.

48. See, e.g., Playboy, No. 98-1682, 2000 WL 646196; Reno,117 S. Ct. at 2346 (holding that

statute intended to protect minors from harmful communications over the Internet violated the

First Amendment in part because the statute suppresses a large amount of speech that adults have

a constitutional right to send and receive); see also Sable Communications v. FCC, 492 U.S. 115,

128 (1989); Erzoznick v. Jacksonville, 422 U.S. 205, 213–14 (1975) (striking down ordinance

banning nudity in outdoor movie theaters because “[s]peech that is neither obscene as to youths

nor subject to some other legitimate proscription cannot be suppressed solely to protect the young

from ideas or images that a legislative body thinks unsuitable for them”).

49. Reno, 117 S. Ct. at 2346 (citations omitted); see also Interstate Circuit, Inc. v. Dallas, 390

U.S. 676 (1968) (invalidating a municipal ordinance that established a local classification board

to rate movies as either “suitable for young persons” or “not suitable for young persons” on

vagueness grounds).

50. Id. (citations omitted).

51. See Kevin D. Minsky, The Constitutionality and Policy Ramifications of the Violent

Programming Rating Provision in the Telecommunications Act of 1996, 47 Syracuse L. Rev.

1301, 1308–12 (1997).

52. Red Lion Broad. v. FCC, 395 U.S. 367 (1969). The Supreme Court has held, however, that

the scarcity rationale does not apply to cable television and has analyzed regulations affecting

speech on cable television under a heightened standard of scrutiny. See Turner, 512 U.S. at 639;

see generally Amy Fitzgerald Ryan, Don’t Touch That V-Chip: A Constitutional Defense of the

Television Program Rating Provisions of the Telecommunications Act of 1996, 87 Geo. L.J. 823,

836-40 (1999). Recently, however, the Court acknowledged that, “Cable television, like

broadcast media, presents unique problems, which inform our assessment of the interests at

stake, and which may justify restrictions that would be unacceptable in other contexts.” Playboy,

No. 98-1682, 2000 WL 646196, at *7.

53. Pacifica, 438 U.S. at 748–49.

54. Id. (upholding FCC finding that broadcast of radio monologue containing references to

excretory or sexual activities or organs was “patently offensive” because it was broadcast in the

afternoon when children are in the audience).

55. Id. In Reno, the Supreme Court distinguished the Internet from the broadcast media on the

ground that the “intrusion on the privacy of the home” rationale does not apply to the Internet.

117 U.S. 2329. Specifically, the Court held that the Internet is not as “invasive” as radio or

television, relying on the district court’s findings that “communications over the Internet do not

‘invade’ an individual’s home or appear on one’s computer unbidden. Users seldom encounter

content ‘by accident.’” Id. at 2343. But with the development of new technologies to deliver

movies, music recordings, and electronic games into the home, the level of availability and

intrusion of other entertainment media (and the level of volition required) may be converging

with broadcast media.

56. See supra Part III.B.

57. See Appendix G.

58. Riley v. National Federation of the Blind, 487 U.S. 781, 791 (1988).

59. These scholars argue that the government’s intent would not be relevant: If, in enacting a

labeling scheme, the “government were to be motivated not to censor violence, but rather to

notify parents and viewers, does not change the level of scrutiny. Because the regulation is

content-based, it elicits most exacting scrutiny. The fact that the government might act with

benign intentions is irrelevant.” Edwards & Berman, supra note 5, at 1562 n.323.

60. In addition to these considerations, the recording industry has argued that requiring that the

rating or label be used on entertainment media, or in advertising or marketing materials, would

also fail to meet the constitutional standard because it amounts to a “prior restraint” on speech.

Recording Industry Memorandum at 40–41.

61. See Letter from Ralph Nader and Gary Ruskin, Executive Director, Commercial Alert to

Robert Pitofsky, Chairman, Federal Trade Commission (June 22, 1999),

www.essential.org/alert/mediaviolence/ftclet.html (visited Aug. 8, 2000) (calling Commission’s

attention to European restrictions on advertising to children such as prohibitions against

television advertising directly targeting children below 12 years of age in Norway and Sweden).

62. Interstate Circuit v. City of Dallas, 390 U.S. 676, 689 (1968) (internal quotations omitted).

63. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-13 (1975).

64. See, e.g., Jendi Reiter, Serial Killer Trading Cards and First Amendment Values: A Defense

of Content-Based Regulation of Violent Expression, 62 Alb. L. Rev. 183 (1998); Kevin W.

Saunders, Media Violence and the Obscenity Exception to the First Amendment, 3 Wm. & Mary

Bill Rts. J. 107, 111 (1994). Both Reiter and Saunders advocate using the Miller obscenity test

to assess violent material. Reiter states:

Neither the text nor the purposes of the First Amendment prevent the Supreme

Court from creating a new category of less-protected speech whose subject matter

is violence rather than sex, and using the Miller test to define its boundaries. By

analogy to ‘obscenity,’ this category would have a special name (perhaps

‘depravity’) which would be used as a legal term of art to describe the materials

which were subject to regulation. State and municipalities could then define and

regulate whichever types of violent entertainment seemed most harmful to them....

Reiter, supra, at 209. But see Video Software Dealers Ass’n v. Webster, 968 F.2d 684, 687 (8th

Cir. 1992) (striking down statute that prohibited sale or rental to minors of videos containing

violent content where statutory test for violence was patterned after Miller).

65. Reiter, supra note 64, at 211 (“Just as the vast majority of works with sexual content do not

overstep the boundaries of the Miller test, most works with violent content would still receive

full First Amendment protection.”).

66. See Winters v. New York, 333 U.S. 507, 510 (1948) (refusing to treat violent “true crime”

stories and detective magazines as obscene under statute banning obscenity: although the Court

could see “nothing of possible value to society in these magazines, they are as much entitled to

the protection of free speech as the best of literature”); see also Eclipse Enterprises, Inc. v.

Gulotta, 134 F.3d 63, 67–68 (2d Cir. 1997) (striking down statute prohibiting sale of trading

cards depicting violent crimes to minors); Video Software Dealers Ass’n, 968 F.2d 84; Sovereign

News v. Falke, 448 F. Supp. 306, 394 (N.D. Ohio 1977) (striking down obscenity statute

applying to material containing violence, brutality, or cruelty), remanded on other grounds, 610

F.2d 428 (6th Cir. 1979).

67. See, e.g., Edwards & Berman, supra note 5, at 1502–03 (asserting that it would be difficult

to draw lines between “thematic” violence and “gratuitous” violence due to the “grave difficulty

in drawing the appropriate lines [and that this problem] would turn any such inquiry into a

jurisprudential quagmire”).

68.

[I]f ‘violence’ were defined as the depiction of physical force that causes injury or

pain, the definition would sweep in representations of war, sports, accidents,

natural disasters, medical and surgical procedures, and even the portrayal in nature

films of the predatory behavior of animals. Passages from classic works of

literature would also fit the definition.

See Motion Picture Industry Paper at 25.

[M]usic coupled with lyrics has unique qualities that make interpretation

especially subjective, and thus may aggravate vagueness issues . . . . A more

specific approach, listing particular violent acts, would be no more successful in

passing constitutional muster. Not only would the listed definitions of particular

acts of violence themselves potentially suffer from vagueness problems, but such

definitions would inevitably reach large categories of valuable speech protected

by the First Amendment and would therefore be grossly overbroad.

See Recording Industry Memorandum at 25.

69. The problems of using the Miller test for obscenity in practice have been underscored by

Justice Potter Stewart’s infamous articulation of his “I know it when I see it” approach.

Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).

Appendix D

AN OVERVIEW OF THE ENTERTAINMENT MEDIA INDUSTRIES

AND THE DEVELOPMENT OF THEIR RATING AND LABELING SYSTEMS

This Appendix provides an overview of the motion picture, music recording, and

electronic game industries, including a brief look at the role they play in the United States

economy, as well as information on industry revenue, major players and market share, sales of

rated or labeled products, spending statistics, and future trends. The Appendix then summarizes

the historical development of the motion picture, music recording, and electronic game rating and

labeling systems.

A SNAPSHOT OF THE ENTERTAINMENT MEDIA INDUSTRIES

The entertainment media are playing an increasingly significant role in the American

economy, and the motion picture, music recording, and electronic game industries are part of that

trend. In 1997, the latest year for which figures are available, the entertainment industries

contributed an estimated $348 billion to the U.S. economy, accounting for approximately 4.3%

of gross domestic product.1 Over the last 20 years, the real annual rate of growth of the core

some industry analysts predict that revenues from film, music, and video entertainment may

increase from $58 billion in 1998 to nearly $95 billion in 2008.3 This long-term growth will

depend heavily on the development of new technologies to deliver these products to consumers.4

Recent mergers have created large entertainment corporations that own diverse assets and

are often involved in creating, distributing, and operating more than one category of

entertainment media, including movies, records, television shows, broadcast and cable networks,

and the Internet.5 This convergence will transform the entertainment media as these large

conglomerates develop new ways to “both shape popular culture and deliver it to audiences

around the world.”6

The Motion Picture Industry

Revenues: The motion picture industry generates revenue from several sources, including box

office sales, home video sales and rentals (including VHS videocassettes and digital video disks

(“DVDs”)), and licensing for television distribution. In 1999, gross box office sales generated

revenues of almost $7.5 billion,7 while video rentals and sales each generated approximately

another $9-10 billion in revenues, for a total of just under $20 billion.8 Although large screen

movies continue to play an influential role in the industry by creating “future demand for films in

other mediums, such as home video and television,”9 consumers are now spending nearly three

times as much annually to watch films on their home video systems than in theaters.10 With the

advent of new technologies such as DVD, which offer enhanced quality, interactive capabilities,

and extra features, the home video rentals and sales markets will likely continue to grow in

importance to the motion picture industry.11

Major Players and Market Share: In the box office arena, six film distribution companies – the

Walt Disney Co., Viacom, Inc. (Paramount), Sony Corp., Fox Entertainment Group, Time

Warner Entertainment, Inc., and Universal Studios Group – dominate the industry.12 Together,

they account for 80% of box office revenues.13 These film distribution companies share box

office revenues with the operators of movie theaters. The largest movie theater chains in 1999

were Regal Cinemas, AMC Entertainment, Cinemark Cinemas, Carmike Cinemas, and Loews

Cineplex.14

The top firms for sales of home VHS and DVD products in 1999, accounting for nearly

70% of sales revenues, were Warner Home Video,15 Buena Vista Home Entertainment,16

Universal Studios Home Video,17 Paramount Home Video,18 Columbia Tristar, and Twentieth

Century Fox Home Entertainment.19 The same six companies accounted for approximately 80%

of the rental market for home video.20 The two largest U.S. video retail chains were Blockbuster

Video and Hollywood Video;21 however, consumer electronic chain stores Best Buy and Circuit

City surpassed Blockbuster and Hollywood Video to become the top sellers of DVD software in

1999.22

Rated or Labeled Product: In 1999, 70% of the 677 movies rated by the MPAA were rated R.

Another 16% were rated PG-13, while 9% were rated PG, and 5% received a G rating.23 None

received the NC-17 rating.24 Of the 25 top-grossing movies (in all ratings categories) at the box

office in 1999, almost half received a descriptor for violence while more than half of the 20 top

rental movies (in all ratings categories) received a similar violence descriptor.25

Audience: The average consumer spending per person on movies in theaters in 1997 was $28.83

and is expected to rise to $33.60 by 2002.26 Overall, theatrical admissions have been rising

during the last decade. In 1999, there were 37,185 movie screens in the U.S., an increase of

3,000 over 1998.27 According to the 1999 Motion Picture Attendance survey conducted by the

MPAA, 20% of annual admissions came from the 16-20 year age group – the largest of any

cohort. The 12-17 age cohort made up 17% of total annual admissions – the third largest

segment in annual theater admissions.28 Consumer spending on home video was $76.25 on

average in 1997 and is projected to grow to $98.34 by 2002.29

Future Trends: Technological advances such as DVD and digital television broadcasting (DTV)

will affect the future of the movie industry, particularly in the home entertainment arena. DVD

players provide sharper pictures and clearer audio than those available from VHS videocassette

recorders, can store much more information than VHS tapes, and can offer many features, such

as interactive information about movie productions and movie celebrities.30 DTV will provide

consumers clearer and sharper, cinema-like pictures as well as multichannel, CD-quality sound.31

The Music Recording Industry

Revenues: The music recording industry generates nearly all of its revenues from sales of fulllength CDs, but also generates revenues from the sale of full-length cassettes, vinyl LPs, single

CDs, and music videos.32 Although Internet sales currently account for only 1% of sales, in the

future, the industry may also make significant sales through Internet music purchases.33 In 1999,

the market value of all recorded music sales, according to the RIAA, was $14.6 billion.34

Major Players and Market Share: Five distributors – UMG Recordings, Inc., Sony Music

Entertainment, Inc., Warner Music Group Inc., EMI Recorded Music, North America, and BMG

Entertainment – dominated the recording industry in 1999 and accounted for roughly 80% of

retail sales.35 Each of these companies offers products under a number of different individual

divisions known as labels. Despite some recent challenges to the major recording companies

from Internet-based music providers, these companies have well-established, exclusive

relationships with artists and have large resources to fund the promotion and marketing of new

recordings.36

Rated or Labeled Product: The recording industry does not officially track sales of music

recordings labeled with an explicit-content parental advisory label separately from those for nonlabeled recordings. A review of the Billboard 200™ for the weeks of July 31, 1999 and July 29,

2000, however, shows that approximately one-third of the top 100 best-selling CDs for these

weeks contained an explicit-content label.37

Audience: Consumer spending per person on recorded music (excluding music videos) was

$55.20 per person in 1997 and is expected to rise to $68.89 by 2002.38 Recent data released by

the RIAA indicate that, although overall music sales in 1999 were up 6%, the percentage of

consumers between 10 and 19 years of age dropped from 25.9% of buyers in 1990 to 21.1% in

1999 – making them the second largest group of music buyers after consumers 45+, who account

for 24.7% of sales.39 To some degree, this may reflect the general aging of the population and

older consumers’ greater ability to afford compact disks.40 Nonetheless, the RIAA survey

indicates that some of the most popular music genres, e.g., rock and rap/hip hop, are those that

appeal to teenagers or younger children.41

Future Trends: Almost more than any other industry, the music industry is feeling the effects of

technological change.42 Although the CD remains the most widely used format to deliver music,

computers are increasingly being used to receive, store, create, and distribute music. Industry

analysts predict that U.S. online sales of music in CD format could grow from $150 million in

1998 to $1 billion by 2003 and to $2 billion by 2007.43 In addition, downloaded music using

digital technology such as MP3 – which allows listeners to download single songs – will become

increasingly popular. The long-term implications of these new technologies on the profitability

and growth of the recorded music industry are difficult to assess, and the predominant format for

music sales in the future remains an open question.44

The Electronic Game Industry

Revenues: The electronic game industry, which includes personal computer games and consolebased video games, is the fastest growing part of the entertainment industry. In 1999, the

industry grossed more than $6.1 billion in sales, a 19% increase over 1998 sales levels of $5.5

billion.45 Video games sales accounted for $4.2 billion of this revenue, while computer games

sales accounted for $1.9 billion.46

Major Players and Market Share: In 1999, Sony’s game console, the PlayStation, accounted for

54% of the gaming hardware market while Nintendo’s console, the Nintendo 64, garnered 33%

of the market (not including its hand-held Game Boy).47 Sega’s console, the Sega Dreamcast,

first launched in September 1999, captured a 14% share of the market.48 In 1999, Sony had

obtained 68% of the software gaming market, while Nintendo accounted for 28%. The five

largest console game publishers in 1999 were Nintendo, Electronic Arts, Sony, Midway, and

Acclaim,49 while the top PC game publishers were Havas Interactive, Electronic Arts, Hasbro

Interactive, Mattel Interactive, and Infogrames Entertainment.50 The top five video game

retailers in 1999 were Toys “R” Us, Wal-Mart, Best Buy, KB Toys, and Kmart.51

Rated or Labeled Product: The most popular game genres are strategy/role-playing, action,

sports and racing, shooting, fighting, and simulation.52 According to the IDSA, 7% of all video

games have been given a mature or M rating.53 Nearly all M- and T-rated games contain violent

content. In fact, of the 352 M-rated games currently listed on the ESRB Web site, 312 or 89%

have content descriptors for violence.54 Of the 981 Teen or T-rated games, 942 or 96% have

content descriptors for violence.55

Audience: Consumer spending per person on video games in 1997 was $16.42 and is projected

to rise to $20.04 in 2002.56 According to some industry analysts, children make up 60% of the

video game audience, and males over the age of 18 who are heads of households account for the

other 40%. Other surveys show that the market for interactive games is much broader, with 69%

of personal computer gamers 18 years or older and 54% of video console gamers 18 years and

older.57

Future Trends: The future of the electronic game industry will be affected by new technologies

including advances in personal computers, 3-D acceleration technology, and Internet

connectivity. The industry expects the next generation of Internet-connected video consoles –

such as the soon-to-be released Sony PlayStation 2, the Nintendo Dolphin, and the Microsoft XBox – to catapult it to the forefront of high-technology home computing and consumer

electronics.58 These consoles will be able to play DVD games, movies, and CDs; download

music, movies, and games from the Internet; provide other Internet-based functions like email;

and act as a cable TV set-up box.59 In addition, observers expect that the industry will develop

new approaches to game play – such as people simulations and music games – in addition to the

traditional game genres such as action, strategy, sports, role-playing, adventure flight/combat

simulators, and puzzles.60

II.

HISTORY OF THE MOTION PICTURE RATING SYSTEM

The Early Days and the Hays Production Code

From its earliest days, the motion picture industry has been subject to either government

regulation or self-regulation. Early concerns about film’s potential to reach and influence large

audiences led to public calls for greater controls on movies than on books, art, or theater.61 By

1911, several city and state governments had established censorship boards.62

Despite such censorship, heated discussions about film content and local and state

regulation continued. In an attempt to head off the threat of extensive government censorship,

the motion picture industry in 1922 formed the Motion Picture Producers and Distributors

Association, now known as the Motion Picture Association of America (“MPAA”). The

Association named Will Hays, then U.S. Postmaster General, the head and tasked him with

formulating controls for the moral content of movies.63

The resulting “Hays Production Code” regulated movie scenes containing sex, vulgarity,

crime, brutality, profanity, obscenity, blasphemy, cruelty to animals, religion, “special subjects,”

and “national feelings.”64 Early compliance with the Code by the studios was voluntary, but by

1934, the Production Code Administration began to enforce it by granting or denying a “seal of

approval” based on adherence to Code standards. The studios agreed not to distribute any

movies that did not carry the seal. Movie theaters – at that time owned mostly by the major

studios – did not exhibit unapproved films.65

Court-ordered divestiture of studio-owned movie theaters in the 1940s helped lead to the

demise of the Hays Code.66 Theaters not owned by the studios were free to exhibit foreign and

other films not approved by the Production Code Administration. The Supreme Court explicitly

extended constitutional protection to film content in U.S. v. Paramount Pictures,67 emboldening

the film industry and further eroding the power of the Code. But to some observers, the greatest

impetus to the dismantling of the Code may have been the wider “avalanching revision of

American mores and customs” in the 1960s.68

In response to social changes, the MPAA liberalized the Code by introducing the advisory

“Suggested for Mature Audiences” rating. In 1968, however, the Production Code

Administration refused to apply its seal of approval, even with the “mature audiences” advisory,

to Blow-Up, the first mainstream American film to contain nudity. Metro-Goldwyn-Mayer

nevertheless released the film through a subsidiary company, thereby flouting the MPAA

voluntary agreement that no member studios would distribute a film without a Code seal.69

The U.S. Supreme Court dealt a final blow to the Hays Production Code in 1968 in

Interstate Circuit, Inc. v. City of Dallas.70 Although it struck down Dallas’s Motion Picture

Classification Board as unconstitutionally vague, the Court stated that “becaus

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