The provisions of the Communications Decency Act of 1996 at issue in this proceeding ("CDA provisions") [note 1] require (1) TV manufacturers to include a "V-Chip" in most new TV sets and (2) the FCC to establish guidelines and procedures for identifying and rating TV programming that contains "sexual, violent or other indecent material" -- "but only if" the FCC determines that the TV industry, after one year, has failed to voluntarily establish an "acceptable" rating system of its own.
An acceptable rating system would clearly be helpful to many parents. In a pluralistic society such as ours, parents may have very different standards regarding what they deem appropriate entertainment for their children. Some parents may be primarily concerned about violence, while others may be primarily concerned about sex and vulgarity. Some parents may find almost any type of violence to be unacceptable, while others may deem only graphic deaths or sexual violence to be unacceptable. Some parents may object to almost any type of sexual contact, while others may object only to sexual contact with specified body parts. Some parents may object to all nudity, while others may object only to frontal nudity or to nudity combined with sexual activity. Some parents may object to all vulgarity and profanity, while others may object only if it is frequent or pervasive or if it refers to excrement, the genitals or genital activity (e.g., the "F-word").
No rating system, however, will be able to define with "ultimate god-like precision" [note 2] the various categories of offensive content or to provide complete information about the "context" [note 3] in which sex, vulgarity or violence occur. Many parents will not use the "V-Chip" at all; or will not use it wisely when they do; or will not use it until after a problem has arisen (i.e., after the injury has occurred). Many parents will be unable to monitor TV viewing when children are outside the home. Many parents will be unable to control the content of programming when they watch TV with their children, while outside the home. [note 4] No "V-Chip" will be tamper proof, particularly if parents "de-activate" it to watch programming they block for their children.
While Morality in Media supports an acceptable rating system, it also believes the "V-Chip" will be a "Trojan Horse" if it becomes another excuse to shift responsibility off the purveyors of objectionable programming onto parents. The solution to a garbage spill is a clean-up project, not a rating system. There are no substitutes for responsibility on the part of the TV industry to curb offensive entertainment and for the government to enforce obscenity and indecency laws against violators. [note 5]
But how has it really worked for parents?? In an article "PG-13: Are These Movies For Kids?" [note 7] Jane Hammerslough, who writes a parenting column for the New York Post, said:
Full of explicit allusions to sex, explosions galore, cruel humor and methods of conflict resolution that are, uh, questionable, this summer's crop of movies aimed at kids are looking surprisingly like movies marketed to adults in the past. And parents are in a quandary. They don't want to deprive their children of the summer hits, but they question whether the PG-13 films are appropriate.In "The Reel World-Ratings Game," [note 8] AP entertainment writer John Horn noted that while much of the "hullabaloo" surrounding movie ratings has focused on the NC-17 mark, the "most important debate" involves the less-restrictive PG and PG-13 ratings:The problem is the rating system. "Ask any parent what PG-13 really means and they'd be hard-pressed to give you an answer," says Sandy Crawford, Director of Entertainment for the Media Research Center, a conservative think tank.
"The PG-13 rating is muddled and ambiguous and may be becoming more so," comments Todd McCarthy, chief movie critic for Variety..."Obviously, there's lots of subjectivity in what parents feel is appropriate for their kids. But what receives a PG-13 rating varies tremendously, and its unclear what you're really getting in these movies."
Because so-called family films consistently earn more money than mature-themed, R-rated releases, Hollywood now is turning out scores of movies aimed at all audiences. Along the way, the studios -- and moviegoers -- are finding that the PG and PG-13 ratings are handed out with equal measures of whimsy and logic...The PG-13 rating covers a wide spectrum, with "Josh and S.A.M." at one extreme and "Hot Shots! Part Deux" at the other. Not too long ago, the "Hot Shots!" sequel probably would have been rated R...The comedy jokingly boasts that it features the highest body count in movie history...There's a comically acrobatic sex scene, too, and several double entendres. But since it's a comedy, "Hot Shots!" gets away with it, even flaunting an MPAA rule that says: "If violence is rough and persistent, the film goes into the R rating."Film critics have also questioned ratings given to particular films. For example, film critic Michael Medved, in his review of the film "Waterworld," commented: "Absurdly rated PG-13, despite intense sexual content and nudity, harsh language and almost non-stop violence." [note 9] Of "Cabin Boy," Medved wrote: "Rating PG-13, for sexual references and a good deal of salty language -- with perhaps a record number of 'S-words' for a film that somehow managed to avoid an 'R.'" [note 10] The failure of the MPAA ratings to provide adequate information for parents is also the primary reason why organizations, other than the MPAA, have sprung up to offer alternative rating systems. [note 11] As PARENTAL DISCRETION put it:
These days, movie ratings (G, PG, PG-13, R, NC-17) don't tell parents much about a film's content. What qualifies as a PG movie today would have been PG-13 in the not-too-distant past. Many parents would be surprised at the content of some films promoted as "children's movies." On the other hand, occasionally an uplifting or socially positive movie earns an R rating by virtue of a few objectionable words or a brief love scene. PARENTAL DISCRETION describes to parents the contents of movies, with children's viewing in mind, so parents can make informed decisions.The MPAA rating system has also been criticized by the film industry itself:
But several Hollywood executives complained that the MPAA tends to be more vague than specific. "They prefer to give you general guidelines and let you interpret what they mean," one studio executive says. Another top studio executive adds, "Unless it's a rules violation (you can't say the F-word more than once and get a PG-13), they'll usually be vague." [note 12]There have also been criticisms about how the MPAA determines whether a film gets an "R" or "NC-17" (formerly, "X") rating [note 13]. In an article "Is Brian De Palma Crossing the Line Between Art and Pornography?" Nina Darnton [note 14], noted that many observers were "outraged by the escalation of explicit sexuality and violence in 'Body Double,'" questioning why the movie received an "R" rather than an "X" rating. A study, supported by the National Institute of Mental Health, found that R-rated videos "contain more violence against women than porn tapes." [note 15] The study's authors, Ni Yang at UCLA and Daniel Linz of UC-Santa Barbara, said:
"Citizen groups may be justified in voicing concern about the levels of sexual and nonsexual violence in these films and about the failure of the R rating to adequately warn about the possibility of extreme forms of violence against women."In theory, this "R" versus "NC-17" (formerly, "X") rating problem should not have a large impact on minors, since theaters are supposed to permit minors access to R-rated films only if accompanied by an adult., In fact, however, large numbers of teens manage to gain access to R-rated films without an accompanying adult, [note 16] and one reason why they do is because, as Trip Gabriel noted in his article, [note 17] "To a teenager, an R is not so much a prohibition as a challenge; it rarely stops anyone with a desire to outwit the system."
All of this is not to say that the MPAA system is of no value to any parents. According to a NEWS RELEASE issued by the MPAA on October 17, 1994, "support for" the MPAA movie rating system reached "an all time high among parents." The basis for the assertion was that among parents with children under 13, 77 percent of those surveyed rated the system "Very Useful-to-Fairly Useful."
There is a big difference, however, between being "very" useful and "fairly" useful. There is also a big difference between being "useful" to parents who have no other source of information about film content and being the best possible rating system that can be devised to assist parents with the difficult task of protecting children from an irresponsible entertainment media.
In a pluralistic society, any rating system based largely on the subjective value judgments of a small number of individuals will often disappoint and mislead parents. The shortcomings of such a system can only increase, as in the case of the TV industry proposal,
The concept of "parental guidance," which lies at the heart of both the MPAA rating system and TV industry proposal [note 21], also implies that parental input is in fact needed. But for a "parental guidance" system to work, parents need more information than either the MPAA or TV industry proposal provides. With four or five new movies coming out each week, it is at least possible for parents to get additional information about the two or three films they may be uncertain about before allowing their children to see a film at a local theater. [note 22] But with thousands of hours of TV programming available each week, and the content of individual episodes of the same series often differing radically, seeking additional information about the numerous programs available each day may be an impossibility for even many responsible parents.
Furthermore, the very reason for the "V-Chip" is to provide busy parents with a means of screening out programming without having to obtain "additional information" about individual programs each day. By failing to provide information that parents need and want, the TV industry proposal defeats the purpose of the "V-Chip." As New York Daily News TV critic, David Bianculli, put it: [note 23]
[O]nce you take away the obvious programming for kids and the most blatant adults-only cable offerings, what you're left with is a rating system where the vast majority of programming, especially in prime time, is lumped into the same catchall TV-PG category -- which is no help at all. Use a V-chip...to exclude those programs, and you've wiped away just about everything in prime time. Deal with the PG-TV shows on a case-by-case basis, and you're back where you started -- making individual decisions about individual programs.An additional problem with the TV industry proposal is that it provides little assistance to parents once children reach age 14 (i.e., 8th grade or the early part of 9th grade). The TV-14 rating (Parents Strongly Cautioned) means a program "may contain some material that many parents find unsuitable for children under 14 years of age" (emphasis supplied). It is anticipated, however, that almost the entire menu of broadcast TV programs will be rated either TV-PG or TV-14, [note 24] falsely implying that almost all programs on broadcast TV are suitable for children ages 14 and older.
Other than softcore and "cable version" hardcore porn on cable TV premium or pay-per-view channels, it is also anyone's guess what programs, other than the highly acclaimed "Schindler's List," will receive a TV-M rating ("Mature Audience Only...may be unsuitable for children under 17"). As reported in Entertainment Today, [note 25] Stephen King's "Pet Sematary II" was rated "R" by the MPAA but recently was shown on the USA cable network with a TV-14 rating.
A further problem with the TV industry proposal is that does not provide for rating commercials and program promotions. [note 26] According to a report by the American Association of Advertising Agencies [note 27] the average hour of prime time broadcast network TV contained 15 minutes and 21 seconds of nonprogram material, and according to a 1997 Yankelovich Partners survey commissioned by the Family Channel, [note 28] 71% of parents believe on-air promotions and ads are "often more offensive than the programs." As New York Daily News TV critic David Bianculli put it: [note 29]
The networks have revealed...plans for their on-air TV ratings that will be instituted next month, but there is one area they haven't confronted -- and absolutely must, if they're to be taken seriously about wanting to help parents use TV and the ratings system effectively. Every network, and every local station, must flat-out guarantee that on-air advertising and promotions -- especially the promotions for other shows on the schedule -- conform to the rating of the programs in which they appear. Otherwise, this entire TV ratings business is a worthless, cynical sham, and even the most diligent parents will be burned by it again and again. This problem pops up almost daily -- almost, in fact, every hour.
One such "factor" is that if the TV industry proposal is rejected by the FCC, then the FCC could face an immediate industry legal action based on First Amendment grounds. Mr. Jack Valenti, the former spokesman for the TV industry group said:
If Congress tries to interfere [with the TV industry rating plan] "We'll be in court in a minute" to challenge the legislation on constitutional grounds. [note 30]It behooves the FCC, now that Mr. Valenti has thrown down the gauntlet, to determine whether nor not it can defend the statute on "constitutional grounds" or whether the better part of valor is to refuse to fight and deem the Articles of Surrender embodied in TV industry proposal, "acceptable"
According to the terms of the Statute, the TV industry is to be given the opportunity to develop voluntary rules for rating video programming. In the event the FCC determines that the rules are not "acceptable," then the FCC shall prescribe:
On the basis of recommendations from an advisory committee...guidelines and recommended procedures for the identification and rating of video programming that contains sexual, violent or other indecent material. [note 31]Assuming that the Commission (1) rejects the industry system, and (2) accepts the advisory committee recommendations, would such guidelines, procedures, identification and rating ever pass constitutional muster? The answer lies in the cases.
Since a rating system established by the Commission would be content based, strict scrutiny might apply. [note 32] Strict scrutiny would, of course, require a compelling governmental interest and the least restrictive effective means. [note 33]
If the FCC accepts the recommendation of an advisory committee and promulgates guidelines, and procedures for the identification and rating and makes the same compulsory on the industry, a prior restraint challenge may also arise. If so, the cases that must be examined are Freedman, [note 34] Bantam Books [note 35] and their progeny.
It should be noted that Section 312(b) of the Communications Act authorizes the FCC to issue a cease and desist order for a violation of "any of the provisions of the Act". Section 312 also authorizes the revocation of a license "for violation of or failure to observe any cease and desist order". Under 312 it can also revoke a license for "willful or repeated failure to observe...any rule or regulation of the Commission authorized by this Act". It would also appear that the administrative procedures set forth in Section 312 would govern.
While the FCC could not issue such a cease and desist order or revoke a license without following that procedure, there are no time limits within which the FCC must proceed, no provision for "prompt" judicial review of its determination, and no requirement that the FCC has the burden of going into court to effect its determination. In other words, the procedural protections set forth in Freedman v. Maryland are not provided.
Since the TV industry could challenge the Act, at least as soon as the advisory committee makes its recommendations (but perhaps as soon as the FCC rejects the industry rating system), it would be wise to anticipate what defense the FCC could make, to legal challenges that Freedman and its progeny apply and that a government mandated rating system is an invidious prior restraint.
It is the belief of Morality In Media that there is no reason to apply Freedman to an FCC mandated rating system. In the first place, there is no requirement that each video be submitted to a censor, nor is there a requirement of video-licensing. It fits neatly into the Pacifica [note 36] rationale that Section 326 of the Broadcast Act "has never been construed to deny the commission the powers to review the content of completed broadcasts in the performance of its regulatory duties" [note 37] and "subsequent review of program content is not the sort of censorship at which the statute was directed". [note 38] In addition, the Pacifica rationale relative to the governmental justifications of protection of children, pervasiveness and privacy of the home are also applicable. [note 39]
In the unlikely event that the Supreme Court invalidates an FCC-mandated TV rating system because of the failure to provide any or all of the Freedman procedural protections, Congress could readily cure any such defect with subsequent legislation. [note 40]
We must also determine whether an FCC mandated rating system, as distinguished from a "censorship" system is, in itself, an "informal" prior restraint. We now examine Bantam Books v. Sullivan. It is to be noted in that case that the Supreme Court did not hold that the creation of the "Rhode Island Commission to encourage Morality In Youth" was illegal. It was their duty "To educate the public concerning any book, picture, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language and to investigate and recommend the prosecution of all violations". [note 41] As the Supreme Court says, "The Superior Court declined to declare the law creating the Commission unconstitutional on its face". [note 42]
We observe that the fault with the Rhode Island Commission was not the law under which it operated, but the illegal, intimidatory practices it utilized to implement it. It is also noted that in Bantam Books the Court said that the Commission subjected publications to a system "of prior administrative restraints". [note 43] This aspect is not present in an FCC mandated system which does not ban or suppress but merely requires a notice of the nature of the content. Justice Clark, in his concurring opinion, observes that the Court was "unable to strike down Rhode Island's statute" and also observes that the Rhode Island Commission is free, "as my Brother Harlan indicates, to publicize its findings". [note 44]
The TV industry says it is just giving the American people "what they want." Opinion polls have repeatedly shown, however, that most Americans object to the glut of gratuitous sex, violence and vulgarity on TV. For example, a 1994 survey sponsored by the Corporation for Public Broadcasting reported that 82 percent of adults think TV is too violent and 70 percent think there is too much sex and offensive language. [note 46] In a 1995 survey of teens ages 10 to 16, sponsored by Children Now, 62 percent said sex on TV and in movies influences kids to have sex when they are too young, and 77 percent said there is too much sex before marriage on TV. [note 47]
A 1997 TV GUIDE survey [note 48] reported a "whopping" 82 percent of those polled said they would like to see more references to "moral issues" on TV, and 61 percent said TV has gotten "less spiritual, and less moral, in the past five years" (emphasis supplied). Among findings from a 1997 Family Channel Survey, 71 percent feel government should do more to regulate or limit TV programming with sexually explicit themes, excessive violence or foul language. [note 49]
The TV industry has been arguing for decades that it is up to parents to decide what comes into the home, and the Supreme Court has held that the government has a valid interest in assisting parents to carry out this task. [note 50] The FCC should now reject the TV industry's proposal as UNACCEPTABLE and devise its own.
An FCC imposed rating system would not involve "censorship" since it would not require the TV industry to submit programming to the FCC for scrutiny prior to broadcast or transmission. [note 51] Nor would it prohibit or restrict in any way the broadcast or transmission of any type of video programming.
We note that many organizations and commercial companies have already developed content-based systems for rating motion picture films or the Internet. While Morality in Media does not "recommend" any one rating system as being the best, we do believe that a great deal of thoughtful effort has already been done which will make the task of devising an effective and constitutional TV rating system much easier if the FCC rejects, as it should, the MPAA-style "age-based" rating system now proposed by the TV industry. [note 52]
What the American people most want from the TV industry is not a self-serving system to rate the current glut of unacceptable programming but rather a long-term commitment to produce quality programming that respects mainstream American values. Most Americans also want much more programming that promotes socially constructive behaviors, rather than a never-ending flow of programming that promotes, re-examines or re-wallows in almost every form of immorality and other social deviance. And lastly, most Americans want the TV industry to do a much better job of "channeling" programming intended for adults, away from hours when many younger children and almost all teens are still watching TV.
The "V-Chip" must not become another excuse for the TV industry to flaunt standards of decency and civility or another excuse for the FCC to do absolutely nothing when the TV industry violates the broadcast indecency law or any other indecency law.
Dated: April 4, 1997
ROBERT W. PETERS, President, Morality in Media
PAUL J. MCGEADY, General Counsel, Morality in Media
2. Miller v. California, 413 US 15, at 28 (1973). Return to text
3. For example, in determining whether sexual or excretory speech is "patently offensive" or "indecent," context is all important. See e.g., FCC v. Pacifica Foundation, 438 US 726, at 732, n. 6, 750 (1978) and 47 USC 223(d) ((1)(B). Return to text
4. Millions watch away from home: Nielsen, N.Y. POST, 7/13/95 (More than 23 million adults watch more than 5 hours of TV each week while outside the home). Return to text
5. See, Robert Peters, The FCC must now enforce the indecency law against broadcast TV stations, The Morality in Media Newsletter, November/December 1996. Return to text
6. See, e.g., Hal Hinson, Not as Easy As A-B-C, NEWSDAY, 11/12/88. Return to text
7. Jane Hammerslough, PG-13: Are These Movies for Kids?, N.Y. POST, 7/25/96. Return to text
8. John Horn, The Reel World-Ratings Game, AP & US & World Wire Service, 5/27/93. Return to text
9. Michael Medved, Muddy 'Water', N.Y. POST, 7/28/95. Return to text
10. Michael Medved, 'Cabin Boy' Sinks Quickly, N.Y. POST, 1/7/94. Return to text
11. Copies of literature describing several organizations which provide alternative ratings are attached to these comments as APPENDIX B. Information about these organizations is included in APPENDIX B as further evidence of the inadequacy of the MPAA rating system. Morality in Media does not know how many people actually subscribe to their services. The MPAA and newspapers only publish ratings provided by the MPAA. Many of the organizations included in APPENDIX B are religious and all charge a fee -- thus limiting subscriptions. Return to text
12. Claudia Eller, It's a Complicated Process to Set New Movie's Rating, LOS ANGELES TIMES (reprinted in THE BAY CITY TIMES, 8/7/94). Return to text
13. See, e.g., Bernard Weinraub, Film Ratings Come Under Attack From More Than One Angle, N.Y. TIMES, 9/6/94; Claudia Eller, It's A Complicated Process to Set New Movie's Rating, LOS ANGELES TIMES (reprinted in THE BAY CITY TIMES, 8/7/94); David Edelstein Give 'Em An 'A' For Sex, N.Y. POST, 6/7/90; Hal Hinson, Not As Easy as A-B-C, N.Y. POST ("After 20 years, debate still ranges over the system of rating films"), NEWSDAY 11/12/88. Return to text
14. Nina Darnton, Is Brian DePalma Crossing the Line Between Art and Pornography?, N.Y. TIMES, 11/8/84. Return to text
15. Study: R Vids More Misogynist Than Porn, VARIETY, 6/13/90. Return to text
16. See, e.g., Trip Gabriel, The Ratings Game At The Complex ("despite the sanctimoniousness with which ratings are proferred, they do little to prevent young people from seeing inappropriate movies") N.Y. TIMES, 2/18/96; Stephen Advokat, What's In A Rating? ("Movie makers and distributors who subscribe to the rating system admit privately that such movies wouldn't succeed without their clandestine [i.e., under-17] following."), DETROIT FREE PRESS, 8/13/96. Return to text
17. Trip Gabriel The Ratings Game At The Complex, N.Y. TIMES, 2/18/96; also, Alan Bash, An 'R' Label May Attract Older Kids, Study Shows, USA TODAY, 2/26/96; Marilyn Elias, Age Ratings May Backfire, USA TODAY, 12/12/96. Return to text
18. See, e.g., Alan Bash Parents Crave a Clearer TV Ratings Code (Yankelovich Partners survey sponsored by the Family Channel), USA TODAY, 3/18/97; Lawrie Mifflin, Parents Give TV Ratings Mixed Reviews, N.Y. TIMES, 2/22/97; Dale Kunkel, TV Industry Tunes Out Families (Op Ed), N.Y. TIMES, 12/14/96. Return to text
19. See, e.g., Lawrie Mifflin, Groups Gearing Up to Fight For More Precise TV Ratings, N.Y. TIMES, 12/16/96, Alan Bash TV Industry's Choice of Age Sets Off Debate, USA TODAY, 12/13/96; OPINIONLINE ("Newspapers, reacting to early reports of the ratings, are almost universally critical"), USA TODAY, 12/17/96. Return to text
20. See, e.g. Heather Fleming, TV Ratings Opponents Get Busy ("Religious groups call for advertiser boycott"), BROADCASTING & CABLE, 1/13/97; Melanie Wells, TV Ratings System May Turn Off Marketers, USA TODAY, 12/16/96; Donna Petrozello, TV Faces Online Competition For Ads, BROADCASTING & CABLE, 4/17/96; Sally Goll Beatty, If TV Gets Ratings, Risque Could Be Passe, WALL STREET JOURNAL, 2/16/96; Joe Flint, Violence Code Could Be Economic Scarlet Letter, BROADCASTING & CABLE, 6/21/93. Return to text
21. A survey conducted by the Media Research Center in January 1997 found that over three-fifths of prime-time entertainment was rated "TV-PG -- Parental Guidance Suggested." See also Kyle Pope, Networks Say Most Prime Time Shows To Have Middle-of-the-Road Ratings, WALL STREET JOURNAL, 12/20/96. Return to text
22. Most parents, however, don't take the time to research each week's new releases. It is not until their children want to see a particular film that they may want information about that film. By then, the newspaper review of that film (if any) is in a recycling center or the local garbage dump. Return to text
23. David Bianculli, Ratings Setup a Crock of Alphabet Soup, N.Y. DAILY NEWS, 12/11/96. Return to text
24. As noted in David Bauder, Parents Still Advise Vigilance, Despite New Ratings, N.Y. POST, 1/14/97, the TV-M ratings are expected to be "extremely rare on broadcast television." See also, Alan Bash, TV Industry's Choice of Age Sets Off Debate, USA TODAY, 12/13/96 (TV-M rating "will likely be put only on shows on pay cable such as Showtime's Red Shoe Diary.") Return to text
25. New TV Ratings, ENTERTAINMENT TODAY, 1/21/97. Return to text
26. The problem exists, irrespective of whether promos and commercial ads fall within the definition of "video programming." Return to text
27. INNER TUBE (Commercials, Promos, Etc. Ad Up in Record Numbers), N.Y. DAILY NEWS, 3/20/97. Return to text
28. Alan Bash, Parents Crave a Clearer TV Ratings Code, USA TODAY, 3/18/97. Return to text
29. David Bianculli, Promos Should Be Rating-Sensitive, Too, N.Y. DAILY NEWS, 12/23/96. See also, Vulgar Ads Encroach on the Family Hour (Editorial), OMAHA WORLD HERALD, 12/30/96. Return to text
30. Cynthia Littleton, Valenti Calls V-chip 'Quick Fix', BROADCASTING & CABLE, 7/8/96 at page 25. Return to text
31. 47 USC 303 (w)(1) Return to text
32. But see FCC v. League of Women Voters, 468 US 364, at 376 (1984): "[B]ecause broadcast regulation involves unique considerations, our cases have ... never gone so far as to demand that such regulations serve 'compelling' governmental interests." See also, Denver Area Educational Telecommunications Consortium, 64 LW 4706, at 4709-4711 (1996). Return to text
33. See, e.g., Sable Communications of Cal., Inc. v. FCC, 492 US 115 (1989). Return to text
34. Freedman v. Maryland, 380 US 51 (1965). Return to text
35. Bantam Books, Inc., v. Sullivan, 372 US 58 (1963). Return to text
36. FCC v. Pacifica Foundation, 438 US 726 (1978). Return to text
37. Pacifica, 438 US at 735. Return to text
38. Pacifica, 438 US at 737. Return to text
39. Pacifica, 438 US at 748-750. Return to text
40. See, Star v. Preller, 352 F. Supp 530 (D. Md. 1972, aff'd, 375 F. Supp 1093 (D. Md. 1974), aff'd 419 US 956 (1974). See also FW/PBS, Inc. v. City of Dallas, 493 US 215 (1990) (third requirement of Freedman v. Maryland -- that city must bear the burden of going to court to effect denial of license and bear the burden of proof therein -- did not apply). Return to text
41. Bantam Books, 372 US at 59-60. Return to text
42. Bantam Books, 372 US at 61. Return to text
43. Bantam Books, 372 US at 70. Return to text
44. Bantam Books, 372 US at 75 (Clark, J., concurring). Return to text
45. See e.g., Howard Fineman, The Virtuecrats, NEWSWEEK, June 13, 1994, pp. 31, 36 (Newsweek poll reported 67 "blame" TV and popular entertainment "a lot" for the "problem of low morals and personal character in this country."). Return to text
46. Shuana Snow, Morning Report, L.A. TIMES, Feb. 2, 1994, at F2. Return to text
47. Cal Thomas, Survey Links Teen Violence, TV, CHRISTIAN AMERICAN, May/June 1995. Return to text
48. Joanne Kaufman, Tuning In to God, TV GUIDE, 3/29/97. Return to text
49. Alan Bash, Parents Crave a Clearer TV Ratings Code, USA TODAY, 3/18/97. Return to text
50. See, Pacifica, 438 US at 749; Ginsberg v. New York 390 US 629 (1968). Return to text
51. See e.g., FCC v. Pacifica Foundation ("Pacifica"), 438 US 726, at 735-738 (US, 1978); Near v. Minnesota, 283 US 697, at 713-714 (1931). Return to text
52. See, Leslie Miller, Ratings to Help Screen Internet, USA TODAY, 2/29/96. Return to text