Fordham Intellectual Property, Media and Entertainment Law Journal Volume 8 Volume VIII Number 2 Volume VIII Book 2 Article 1 1997 The V-Chip and the Constitutionality of Television Ratings Benjamin C. Zipursky Eric Burns Donald W. Hawthorne Thomas Johnson Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Benjamin C. Zipursky, Eric Burns, Donald W. Hawthorne, and Thomas Johnson, The V-Chip and the Constitutionality of Television Ratings, 8 Fordham Intell. Prop. Media & Ent. L.J. 301 (1997). Available at: https://ir.lawnet.fordham.edu/iplj/vol8/iss2/1 This Transcript is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. PANEL1.TYP 9/29/2006 4:44 PM Panel 1: The V-Chip and the Constitutionality of Television Ratings Moderator: Benjamin C. Zipursky* Participants: Eric Burns** Donald W. Hawthorne, Esq.*** Thomas Johnson**** David H. Moulton, Esq.***** Robert W. Peters, Esq.****** MR. ZIPURSKY: Welcome to the Fordham Intellectual Property, Media & Entertainment Law Journal’s Sixth Annual Symposium on the First Amendment and the Media. I am Profes- sor Benjamin Zipursky of Fordham University School of Law. Out first panel discussion covers one of the hot topics in both the television industry and the legal profession, the V-chip and the constitutionality of the associated television ratings that will be re- quired to make the chip work properly. I would like to introduce today’s panelists. Our first speaker is Eric Burns. He is a media analyst with Fox News Channel. He has covered the television ratings issue exten- * Associate Professor of Law, Fordham University School of Law. Swarthmore College, B.A. 1982; University of Pittsburgh, M.A. 1985, Ph.D. 1987; New York Univer- sity School of Law, J.D., magna cum laude, 1991. ** Media Analyst, Fox News Channel, New York, N.Y. Westminster College, B.A. 1967. *** Associate, Paul, Weiss, Rifkind, Wharton & Garrison, New York, N.Y. Princeton University, B.A., magna cum laude, 1982; Oxford University, D.Phil. 1986; Yale Law School, J.D. 1991. **** Senior Writer, Media Research Center, Alexandria, Va. University of Ari- zona, B.A. 1983; University of Arizona, M.Ed. 1985. ***** Chief of Staff, Rep. Edward J. Markey (D-Mass.). Harvard College, B.A., magna cum laude, 1970; Georgetown University School of Law, J.D. 1977. ****** President, Morality in Media, Inc., New York, N.Y. Dartmouth College, B.A., cum laude, 1971; New York University School of Law, J.D. 1975. 303 PANEL1.TYP 9/29/2006 4:44 PM 304 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 8:303 sively over the past year or so. Next, we will hear from David Moulton, chief of staff for United States Representative Edward Markey of Massachusetts. Mr. Moulton was the principal House staff member during the drafting of the V-chip law. He was also influential in the television industry’s development of the rating system that works in connection with the V-chip. We also will hear from Robert Peters, president of Morality in Media. Mr. Pe- ters has been very active on the V-chip and television ratings issue, having submitted official comments to the Federal Communica- tions Commission (“FCC”). Next, we will hear from Thomas Johnson, a senior writer from the Media Research Center in Alex- andria, Virginia. He has written extensively on the subject of tele- vision ratings. Our next speaker will be Donald Hawthorne an as- sociate with Paul, Weiss, Rifkind, Wharton & Garrison. He has written widely on communication law topics. After all the presentations we will have a roundtable discussion and then I will open up questions to the audience. Let’s start with Eric Burns. MR. BURNS: Let me start with a joke that is very popular among lawyers. It involves a client who is terribly upset because his lawyer keeps giving him advice that seems to be contradictory. At one point the client says to a friend, “The next time I retain a lawyer, it will be a lawyer who has just one arm.” His friend asks, “Why?” The client responds, “So that I cannot hear ‘on the one hand and then on the other hand.’” I did not start with that joke to indicate that lawyers either do or do not collectively have a great sense of humor. Instead, I told it because, regrettably, my position on the issue of television rat- ings is a matter of on-the-one-hand and on-the-other-hand. On the one hand, I fail to see how people can have great dis- agreement with it. As has been said many times, what the rating system does, however imperfectly, is provide more information.1 More information can only be good. If the information is deemed 1.See Edward J. Markey, Opportunity to Create a ‘Safe Harbor’, TIMES UNION (Albany, N.Y.), Oct. 12, 1997, at B1. PANEL1.TYP 9/29/2006 4:44 PM 1998] SYMPOSIUM—THE V-CHIP AND TV RATINGS 305 faulty by a viewer, the viewer can disregard it. The information, however, is criticized by some as being arbi- trary,2 which it has to be. But it is certainly less arbitrary than the movie rating system.3 The movie rating system, for me as a par- ent, has some value. It is obviously not perfect. I have been sur- prised by some “PG” movies that I thought should have been “R” or worse. Sometimes, although not terribly often, I may see an “R” movie and wonder why it is not “PG.” But the rating system for movies is more arbitrary than television, because fairly recently the television rating system has provided more information.4 At the movies, the big surprise is whether the “R” rating is re- lated to language or violence.5 That is not a surprise on television anymore because the rating system is specific. It has distinct rat- ings that are assigned because of violence, sexual situations, or language.6 I fail to see how there can be serious objections to this kind of information, which may be disregarded if one so chooses. On the other hand, I do not watch much television. In fact, I have never seen a complete episode of Seinfeld; I have never seen 2.See Aaron Barnhart, TV Ratings Headed for Rewrite to Give Parents More Guid- ance Compromise Adds Labels to Age-based Voluntary System, KANSAS CITY STAR, Jun. 25, 1997, at A1 (discussing survey that found that a majority of parents with young chil- dren were not using the system because of the arbitrary nature of the ratings assigned to shows); see also Lawrie Mifflin, Parents Give TV Ratings Mixed Reviews, N.Y. TIMES, Feb. 22, 1997, at C8 [hereinafter Mifflin I] (quoting a mother of a thirteen year old daughter complaining about the “arbitrary nature of [the] ratings”). 3.See J.M. Balkin, Media Filters, the V-Chip, and the Foundations of Broadcast Regulation, 45 DUKE L.J. 1131, 1170 (1996) (discussing the “coarseness” of the movie rating system). 4.See Matthew L. Spitzer, An Introduction to the Law and Economics of the V- Chip, 15 CARDOZO ARTS & ENT. L.J. 429 (1997) (describing the evolutionary stages of the television rating system). 5.See Balkin, supra note 3, at 1170. 6.See Lawrie Mifflin, Senator Tells Networks to Revamp New Ratings, N.Y. TIMES, June 4, 1997, at C13 [hereinafter Mifflin II] (discussing Senator John McCain’s instruc- tion to the television networks to make the ratings content specific); Mifflin I, supra note 2; Sheryl Stolberg, How Are Ratings of TV Programs Working So Far?, SEATTLE TIMES, Feb. 12, 1997, at A3. In addition to the age based ratings, the following content specific ratings were added: “V” for violence, “S” for sexual content, “L” for vulgar language, “D” for sug- gestive dialogue, and “FV” for fantasy violence in children’s programs. PANEL1.TYP 9/29/2006 4:44 PM 306 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 8:303 an entire episode of a program produced by Steven Bochco.7 It is not uncommon for people who work in television to watch televi- sion less than others. I say this to point out my ignorance of television, which is im- portant to my point. If someone who watches as little television as I do knows the approximate content of every television show be- fore viewing it, other people should know too. Any situation- comedy on one of the six networks8 today, which is on after 8 p.m., will have many breast or derriere jokes with much sexual in- nuendo, if not sexual situations. If a situation comedy rises above this level of body parts and lack of imagination, there is so much publicity that you cannot help but notice. I do not understand why people need a rating system in order to tell their children not to watch a particular show. I never saw an episode of The Cosby Show either, but I live in this culture, so I know that The Cosby Show—not the one now, but the one in the 1980s9—was a clean show. By the same token, for a Steven Bochco television program on after 9 p.m., do you really need to see the rating to know that the program will contain vio- lence? The need for ratings surprises me to some extent.