Media Marketing Accountability Act: First Amendment Analysis

Order Code RS20977

July 27, 2001

CRS Report for Congress

Received through the CRS Web

Media Marketing Accountability Act: First

Amendment Analysis

name redacted

Legislative Attorney

American Law Division

Summary

The Media Marketing Accountability Act of 2001, S. 792 and H.R. 2246, 107th

Congress, would “prohibit the targeted marketing to minors of adult-rated media.” This

report considers whether it would violate the First Amendment’s guarantee of freedom

of speech.1

Section 101(a) of the bill would make “[t]argeted advertising or other marketing to

minors of an adult-rated motion picture, music recording, or electronic game” a violation

of section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. Section 101(b) would

in effect define “targeted advertising or other marketing to minors” as advertising or other

marketing that “is intentionally directed to minors; or . . . is presented to an audience of

which a substantial proportion is minors; or . . . the Commission determines . . . is

otherwise directed or targeted to minors.” Section 103 would authorize the FTC to

prescribe rules that define when an audience is comprised of a substantial portion of

minors and that “may include requirements for the purpose of preventing” targeted

advertising or other marketing to minors.

Though the bill would prohibit targeting advertising or other marketing to minors of

motion pictures, music recordings, or electronic games that their producers or distributors

make “adult-rated,” it would not require that any product be rated or labeled. Therefore,

a producer or distributor of a motion picture, music recording, or electronic game who

chooses not to rate or label his product would not be subject to the bill. Further, the bill

would not prescribe criteria by which to rate or label products that are voluntarily rated

or labeled. A producer or distributor who wished to rate or label his product could decide

for himself how to do so, or could choose to follow an industry-wide system. The bill’s

purpose is apparently limited to prohibiting producers or distributors who voluntarily rate

or label their products as being suitable only for adults from advertising or marketing them

to minors.

1

We analyze only Title I of the bill, as Title II would merely direct the FTC to conduct a study and

to submit reports to Congress and to the public.

Congressional Research Service ˜ The Library of Congress

CRS-2

The bill would also leave to the producer or distributor (or to the FTC under section

102, discussed below) what age to deem a “minor,” except that section 106(2) provides

that, in no event would an individual 17 or older be deemed a minor, and, “[i]f no specific

age is so established under the rating or labeling system in question, the term means an

individual less than 17 years of age.”2 This apparently means that whether a producer or

distributor was engaging in targeted advertising or other marketing to minors would

depend upon the producer or distributor’s own definition of “minor,” except that, if that

definition included individuals 17 or older, then the producer or distributor would not

violate the law by marketing it to individuals 17 or older.3

Section 106(1) would define an “adult-rated” motion picture, music recording, or

electronic game as one rated or labeled by the producer or distributor (whether individually

or pursuant to an industry-wide system) in a manner that indicates that it is “appropriate

or suitable only for adults” or one to which “access . . . by minors should be restricted.”

A music recording would also be deemed “adult-rated” if it were rated or labeled in a

manner that indicates that it “may contain explicit content, including strong language or

expressions of violence, sex, or substance abuse.” Again, a motion picture, music

recording, or electronic game would not have to be rated or labeled, and, if it were rated

or labeled, would not have to be rated or labeled in a manner that made it subject to the

bill. (It could, for example, be labeled as to its subject matter – comedy, western, etc.) If

it were rated or labeled so as to be subject to the bill, however, then, to reiterate, section

101 would make it subject to section 5 of the FTC Act, unless the producer or distributor

opted to adhere to the “voluntary self-regulatory system” that section 102 would direct the

FTC to establish.

Section 102, which is titled “Safe Harbor,” would permit producers or distributors

who choose to rate their products to, in lieu of being subject to section 101, “adhere[ ] to

a voluntary self-regulatory system” that the FTC would establish. Such system would

include:

(1) An age-based rating or labeling system for the product in question.

(2) For all products that are rated or labeled as adult-rated under the system –

(A) prohibitions on the targeted advertising or other marketing to minors of such

products; and

(B) other policies to restrict, to the extent feasible the sale, rental, or viewing to

or by minors of such products.

(3) Procedures, including sanctions for non-complying producers and distributors . . .

.

2

3

Despite the word “system,” the bill would not require that there be a rating or labeling system.

Note that, under the bill, if a specific age is “established,” then that age, rather than “less than

17,” would govern. Suppose that a rating or labeling system “established” “less than 12” as its

definition of minor, but did not require that ratings or labels disclose that fact. The producer or

distributor whose rating or label said merely something like “suitable for minors” could then market

the product to an audience of 12-year-olds without engaging in what the bill would deem engaging

in “targeted advertising or other marketing to minors.” Nevertheless, if the FTC determined that

the product was not suitable for 12-year-olds, it appears that, independently of the bill, it could find

that the producer or distributor had falsely or deceptively rated or labeled the product (apart from

whom it marketed it to) in violation of section 5 of the FTC Act.

CRS-3

First Amendment Analysis

The bill would affect two types of speech. It would prohibit advertising and

marketing to minors of adult-rated motion pictures, music recordings, and electronic

games; and it would place a disincentive on rating and labeling such products. The bill

would place a disincentive on rating and labeling products because a producer or

distributor may now rate or label his product as suitable for adults only, and face no

penalty for advertising or marketing the product to minors, whereas, if the bill were

enacted, he would be subject to a civil monetary penalty under the FTC Act for such

advertising or marketing. Therefore, the bill could impose a possible financial burden on

speech, and that, as well as outright censorship, may violate the First Amendment. “A

statute is presumptively inconsistent with the First Amendment if it imposes a financial

burden on speakers because of the content of their speech.”4

Both types of speech that the bill would affect – advertising and marketing, and rating

and labeling – constitute what in the First Amendment context is called “commercial

speech,” and commercial speech is entitled to less First Amendment protection than noncommercial speech.5 The Supreme Court has prescribed the four-prong Central Hudson

test to determine whether a governmental regulation of commercial speech is constitutional. This test asks initially (1) whether the commercial speech at issue is protected by

the First Amendment (that is, “it at least must concern lawful activity and not be misleading”) and (2) “whether the asserted governmental interest [in restricting it] is

substantial. If both inquiries yield positive answers,” then to be constitutional the

restriction must (3) “directly advance[ ] the governmental interest asserted,” and (4) be

“not more extensive than is necessary to serve that interest.”6

The fourth prong is not to be interpreted “strictly” to require the legislature to use

the “least restrictive means” available to accomplish its purpose. Instead, the Court has

held, legislation regulating commercial speech satisfies the fourth prong if there is a

reasonable “fit” between the legislature’s ends and the means chosen to accomplish those

ends.7 We now attempt to apply the Central Hudson test to the bill.

First prong. The first prong asks whether the speech at issue concerns a lawful

product and is “not misleading.” If it concerns an unlawful product, or if the speech is

misleading, then the government may ban it and the matter is settled. The bill would make

targeted advertising or other marketing to minors of adult-rated motion pictures, music

recordings, and electronic games, subject to section 5 of the FTC Act, which makes

4

Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105, 115

(1991).

5

Commercial speech is “speech that proposes a commercial transaction.” Board of Trustees of

the State University of New York v. Fox, 492 U.S. 469, 482 (1989) (emphasis in original). A

rating or label, if communicated by the producer or distributor (as opposed to by a person with no

interest in selling the product), is communicated in the context of a proposed commercial

transaction.

6

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557,

566 (1980).

7

Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480 (1989).

CRS-4

unlawful “unfair or deceptive acts or practices in or affecting commerce.” Section 101(a)

of the bill, in fact, says:

The targeted advertising or other marketing to minors of an adult-rated motion picture,

music recording, or electronic game, in or affecting commerce, shall be treated as a

deceptive act or practice within the meaning of section 5 of the Federal Trade

Commission Act (15 U.S.C. 45), and is hereby declared unlawful.

The bill thus would “treat” marketing adult-rated material to minors as deceptive, and

deceptive advertisements, under the first prong of the Central Hudson test, may be

banned.8 This does not settle the question, however, because the fact that the bill would

“treat” marketing adult-rated material to minors as deceptive would not make it deceptive.

Whether it is deceptive for purposes of the Central Hudson test would be for the courts

to decide.

The bill, as noted, would in effect define “targeted advertising or other marketing to

minors” as advertising or other marketing that “is intentionally directed to minors; or . . .

is presented to an audience of which a substantial proportion is minors; or . . . the

Commission determines . . . is otherwise directed or targeted to minors.” Perhaps

intentionally directing to minors advertisements for adult-rated products would be

deceptive, in that it might be construed to imply that the rating or label did not mean what

it said. But a strong case could be made that to advertise an adult-rated product to an

audience of which a substantial proportion is minors would not be deceptive, especially if

the advertisement stated clearly that the product was not suitable for minors. An audience

with a substantial proportion of minors might, after all (depending upon how the FTC

defines it), contain a significant number of adults, and the Supreme Court said in Bolger

v. Youngs Drug Products Corp. that “the government may not ‘reduce the adult

population . . . to reading only what is fit for children.’”9

The Court actually has said this in a number of cases, but we cite Bolger because it

was a commercial speech case that struck down a statute with a similarity to the bill. The

statute in Bolger prohibited the mailing of unsolicited advertisements for contraceptives,

and the Court struck it down despite recognizing that it served to assist some “parents

who desire to keep their children from confronting such mailings.”10 This governmental

interest seems similar to one that might be asserted in support of the bill. We do not mean

to suggest, however, that Bolger would be sufficient by itself to lead a court to find the

bill unconstitutional. This is because the statute in Bolger totally banned non-deceptive

advertisements for a legal product, whereas the bill would ban advertisements and

marketing (which it would deem deceptive) only if directed to minors (though it would

limit adults’ access to them as well if they were in an audience comprised of a substantial

portion of minors), and would place a disincentive on, but not ban, rating and labeling

certain products.

8

Although the first prong, as quoted above, uses the word “misleading,” the Court also said in

Central Hudson that “[t]he government may ban forms of [commercial] communication more likely

to deceive the public than to inform it . . . .” There seems no basis to distinguish “misleading” from

“deceptive.”

9

463 U.S. 60, 74-75 (1983).

10

Id. at 73.

CRS-5

In applying the first prong of the Central Hudson test, we have thus far considered

only the bill’s ban on advertising and marketing to minors. If we consider the disincentive

that it would place on ratings and labeling products, then it is even clearer that the

commercial speech at issue concerns a lawful activity and is not misleading. This is

because the bill’s disincentive would apply to ratings and labels that are not misleading.

(It may apply to those that are misleading, but those that are already violate the FTC Act.)

Thus, we must proceed to the rest of the Central Hudson test.

Second prong. The second prong of the Central Hudson test asks whether the

government has a substantial interest in limiting the commercial speech in question. The

bill’s findings state its purposes, which are essentially to prevent the exposure of minors

to media violence. A court would likely find this to constitute a substantial interest,

because the Supreme Court has held that a government’s “interest in the health, safety, and

welfare of its citizens constitutes a ‘substantial’ governmental interest.”11

Third prong.

The third part of the Central Hudson test asks whether the speech restriction directly

and materially advances the asserted governmental interest. “This burden is not

satisfied by mere speculation or conjecture; rather, a governmental body seeking to

sustain a restriction on commercial speech must demonstrate that the harms it recites

are real and that its restriction will in fact alleviate them to a material degree.”

Consequently, “the regulation may not be sustained if it provides only ineffective or

remote support for the government’s purpose.” We have observed that “this

requirement is critical; otherwise, ‘a State could with ease restrict commercial speech

in the service of other objectives that could not themselves justify a burden on

commercial expression.’”12

It appears from this quotation that whether the bill passes the third prong will depend

in large measure upon the evidence that the government presents in a trial challenging its

constitutionality. A court might consider evidence on questions such as: Is media violence

in fact harmful to minors? Are media portrayals of sexual material harmful to minors?13

11

Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328, 341

(1986).

12

Greater New Orleans Broadcasting v. United States, 527 U.S. 173, 188 (1999) (citations

omitted).

13

In a case challenging a restriction on sexual material on cable television, a three-judge federal

district court wrote: “The [Federal] Government presents no clinical evidence linking child viewing

of pornography to psychological harms. Rather, the Government argues by analogy to clinical

studies showing the effect of child viewing of televised violence as well as anecdotal evidence of

the effects of sexually explicit television. The reference to televised violence research is weakened

by the lack of evidence establishing the appropriateness of the analogy. Even if watching televised

violence causes children to be violent, should the same hold true for televised sex? We cannot say

that it would. . . . We are troubled by the absence of evidence of harm . . . .” Playboy

Entertainment Group, Inc. v. United States, 30 F. Supp 2d 702, 716 (D. Del. 1998), aff’d, 529

U.S. 803 (2000). Nevertheless, the court wrote: “The Supreme Court has not required empirical

proof of harm to justify content-based restrictions on constitutionally protected speech when

children are involved. . . . Only some minimal amount of evidence is required when sexually

explicit programming and children are involved.” Id. at 715, 716. Therefore, the court found a

(continued...)

CRS-6

Does advertising or marketing of adult-rated products itself convey violent or sexual

material? Do retailers enforce adult ratings to the extent that advertising or marketing

adult-rated products to minors does not significantly increase the likelihood that minors

will view or listen to those products?14 Is the bill likely to decrease significantly voluntary

rating and labeling and thereby work counter to its stated purpose?

Fourth prong.

The fourth part of the test complements the direct-advancement inquiry of the third,

asking whether the speech restriction is not more extensive than necessary to serve the

interests that support it. 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.” On the whole, then, the challenged regulation should

indicate that its proponent “‘carefully calculated’ the costs and benefits associated with

the burden on speech imposed by its prohibition.”15

In applying the fourth prong, a court might ask (complementing its inquiry as to the

third prong) whether it might be more reasonable for Congress to require that theaters,

electronic game arcades, and music and video retailers enforce existing ratings and labels

(though this too might raise constitutional questions) than that it prohibit advertising or

marketing of adult-rated products to minors. If enforcing existing rating and labels would

be more reasonable, that would not necessarily make the bill unconstitutional, because in

commercial speech cases the Supreme Court does not require the government to use the

least restrictive means to further its interest. Nevertheless, the possible superiority of an

alternative means could be a factor in a court’s decision.

A court applying the fourth prong might also consider the extent to which the bill

would limit adults’ access to commercial speech concerning adult-rated products. The

extent to which it would would depend upon how great a disincentive to rating and

labeling the bill proved to be, and upon how the FTC defined through regulation when an

audience is comprised of a substantial portion of minors.

Because a court’s decision on the bill’s constitutionality would apparently depend on

the evidence presented to it, it does not seem possible to predict what its ruling would be.

Congress might increase the likelihood of the bill’s being upheld if it developed a

legislative history of the bill that contained persuasive evidence with regard to the

questions suggested above that a court might consider.

13

(...continued)

sufficient governmental interest (though it struck down the statute for other reasons). Though the

Supreme Court may not have required empirical proof of harm in the context of sexual material

on cable television, in the commercial speech context, as noted above, it requires the government

to “demonstrate that the harms it recites are real and that its restriction will in fact alleviate them

to a material degree.”

14

The Supreme Court has “acknowledged the theory that product advertising stimulates demand

for products, while suppressing advertising may have the opposite effect.” Lorillard Tobacco Co.

v. Reilly, 121 S. Ct. 2404, 2423 (2001).

15

Greater New Orleans, supra note 12 (citations omitted).

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

copyright on any CRS report we have republished.