MEDIA MARKETING ACCOUNTABILITY ACT OF 2001: THE EMPIRE STRIKES BACK

By: Kenny Moore

[Begin with the ominous sounds of the Darth Vader's music playing in the background] You knew it was only a matter of time before Democratic Senator Joe Lieberman would get back in the censorship saddle after his defeat as part of the "2000 We'll Decide What's Best For You" ticket with fellow censor Al Gore. Striving for unconstitutional governmental censorship is what this man wakes up in the morning to do, it is what he takes every breath to achieve, and it is what he lives for. By his legislative track record in the past, ROC strongly feels that it is not until HE PERSONALLY gets to decide what each citizen in this country can watch, read or listen to will this man reach any level of contentment in life. With his latest bit of proposed legislation, the Media Marketing Accountability Act of 2001 (Senate Bill 792), Mr. Lieberman only adds to his growing legacy as this period's most annoying politician. His modus operandi in the Senate seems to be to drone on and on and whine incessantly with his smug, monotone voice about everything that annoys him to where any of us would almost be tempted to vote with him just to get him to shut up.

In this legislation he has proposed this time (co-sponsored by Robert Byrd (D-WV), Hillary Clinton (D-NY) and Mr. Kohl (D-WI)), he is probably using the most skewed and convoluted logic we've seen to date to step up the attack against entertainment that he personally does not like. First, we must remind readers that it was governmental action taken by people like Al Gore and Joseph Lieberman in the past to forcd the entertainment industry to label their products, towards an end-goal of restricting access to certain material by minors. This is a goal that the US Constitution does not bestow upon our elected officials the authority to achieve legislatively, and specifically prevents through the First Amendment, so the tactic was to use their bully pulpit to gain compliance from the industries through fear and intimidation. These labels are supposedly voluntary, but we can hardly see how they can be considered voluntary when they were implemented by industries with a governmental gun pointed at their heads in the form of threatened unconstitutional legislation. What Lieberman and the Empire are seeking to do now is to use the labeling system that shouldn't be on our entertainment products in the first place in an effort to trap the entertainment industry into some bizarrely interpreted form of false advertising.

The Empire is now saying that because certain products have parental advisory labels on them, then that makes this material "Adults Only" material. A key component of the plan of the censors is to steer the collective public mindset towards an expansion of what is considered "Adults Only" material beyond the current hardcore sexual material that has long been widely accepted as being of an adult nature, to further include anything with any remotely graphic level of violence, or profanity. To achieve this, they continue to peddle the false notion that entertainment products *cause* certain behaviors in individuals, eliminating the concept of personal responsibility for one's own actions and ushering in an era where anyone and anything can be blamed for the actions of another if any connection that sounds remotely rational can be established.

The legislation proposed by The Empire now targets the marketing practices of entertainment industries in an attempt to achieve censorship through the back door. This legislation would cover movies, music, and video games. Joe Lieberman and company are saying that when a product has a parental advisory label on it, it somehow becomes false or deceptive advertising for a company to advertise that product in a place where children likely to be among those being reached (as defined arbitrarily by the Federal Trade Commission).

It's difficult to even begin to explain in layman's terms how much of a stretch this is, but we'll give it a try. Here's an example of how this legislation would work: Warner Brothers releases the R-Rated movie "The Matrix" and begins an advertising campaign to promote the movie. They take out ads in magazines and on TV shows that will reach the most people that they think will enjoy this movie in hopes of attracting the largest audience possible. Say, for instance, they take out ads in various science fiction magazines. If it is determined by the FTC that the magazines they purchase advertising space within are "presented to an audience of which a substantial proportion is minors" (again, as defined arbitrarily by the Federal Trade Commission), then this would be a violation of the law and would be used as evidence that they are targeting minors for "Adults Only" material. So, in practice, what this law is saying is that you cannot advertise such products at all to stay completely safe from government penalty, because you never know exactly how many children will be exposed to your ads and you'll never know how the Federal Trade Commission will define the term "substantial proportion". Could that be 20% of the audience? Could that be 50% of the audience? Could that be 80% of the audience? The industry will not know and will have to test the waters risking substantial penalties for violating the will of the government in deciding what we all can watch, read or listen to. In crafting the language of this bill, Joseph Lieberman has deliberately set out to define the act of advertising as specifically targeting minors if the medium(s) used for the ad campaign happen to have minors among their audience (along with adults). This can include just about everything in our society, which is why we believe Lieberman left the definitions intentionally vague and subject to the whims of the Federal Trade Commission.

Lost in the confusion over this concept of "Adults Only" material as it relates to this legislation is the fact that nearly all of this material targeted would fall under a PG or R rating, going by the MPAA movie ratings system, which means that kids are allowed to see any of it either on their own (in the case of PG ratings) or with a parent (in the case of R ratings). That fact blows the theory that the entertainment industries are doing something dreadfully wrong in including minors as among their target audience because minors often will be among their customers, and there is absolutely nothing wrong with that, both morally and legally.

What Lieberman and The Empire are truly after is to form a back-door age restriction on the First Amendment because all of this material in question is fully protected Constitutionally and minors are not excluded from having First Amendment rights the last time we checked. The rationale that the Lieberman's of the world are following, that advertising these products in places where children may see the ads is something that should be a punishable offense is *only* logical if you believe the material in question to be the equivalent of what would get an X Rating (again going by the MPAA system), and that is assuming that it is logical to restrict constitutionally protected X Rated material from minors. That is why we feel that these legislative (and increasingly clever) public relations attempts at censorship are really geared towards a drastic expansion of what is considered X Rated material in the public mindset, which will ultimately allow for legislation such as this to receive public support and increase the likelihood of it's acceptance in society.

The penalties for violating this proposed law by advertising in places where "an audience of which a substantial proportion is minors", as specified within this law from the Federal Trade Commission Act would be $10,000 in fines for each violation. If the company then refuses to comply with paying these fines, they would be increased to $10,000 per day per violation that the fines are not paid. This is certainly an attempt to hit the entertainment industry in their bottom line to achieve compliance.

The good news stemming from this latest attempt at governmental censorship is that we are witnessing the first hints of a spine forming among the entertainment industry that may lead to them getting off of their knees begging to be spared from the government whip. Commenting on this proposed bill, MPAA President and CEO Jack Valenti has given indication that passage of this as law will likely lead to the end of any ratings systems within their industry.

"This legislation could be more accurately titled a death-sentence bill for voluntary film ratings," Valenti said. "It will put an end to the movie industry's voluntary film-rating system because it penalizes those distributors who participate in this voluntary system and gives total immunity from any penalties to any producer or distributor who distributes a film without a rating.

"Lawyers for the movie companies are not going to stand mutely by and allow their clients, all of which are public companies, to be potentially fined for doing what the companies believe are in parents' best interest," he added. "The lawyers are going to counsel their clients to withdraw from voluntary film-rating systems. Is that what the Congress wants? Is that what parents want?"

So in proposing this legislation, Joe Lieberman and The Empire have upped the ante to a point that puts the entertainment industry in a damned if they do, damned if they don't position. If they can either comply with an unconstitutional law and lose substantial revenue through running incomplete marketing and promotional campaigns for their products, or lose substantial revenue through fines imposed for running their marketing campaigns as they naturally see fit (which is within their Constitutional rights), or face the government Inquisition for dropping the ratings system altogether, then we at ROC think that the likelihood increases that they will dig in and fight back instead of continuing the doomed strategy of appeasement. So while being leery of the potential further erosion of our rights, we almost welcome this latest advance in the censor's agenda as being something that might wake up the industries to the idea that we've known all along--that the censors will not be content until they make all the decisions on what we as a public can watch, read, or listen to. Our thoughts of this inspiring more of a combative approach from the industry are certainly supported by the statements of Jack Valenti quoted above.

It is our opinion that these industries should not sacrifice their Constitutional rights out of fear of government retribution and should take any unconstitutional legislation straight to court. Once declared unconstitutional in court, the matter is settled and done with (at least until passage of the next unconstitutional law). That strategy puts a lot of faith in the judicial system correctly interpreting the Constitutional mandate of free speech and expression for all, but it is a strategy that, in the end, should be far more effective than the doomed path currently being chosen by entertainment industry executives that seem to gullibly believe that government is truly interested in "protecting the children" when they promote censorship legislation and not just using that as a stepping stone towards total control. Always remember that warning labels and rating systems do not prevent further restrictive legislation from being enacted, THE FIRST AMENDMENT OF THE US CONSTITUTION DOES!!!

To all entertainment industry executives: We at Rock Out Censorship are all now kicking back with a big grin on our faces saying "WE TOLD YOU SO!!!" See where compromising with censors gets you?



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