Chipping Away at The First Amendment   

Efforts to curtail TV violence could create problems for newspapers.

Two of the most popular figures in America's never-ending war on crime – Janet Reno and Jessica Fletcher – seem to be on opposite sides of a developing skirmish. The battle has major implications for all American media, broadcast and print.

Reno, of course, is the U.S. attorney general. Lately, she has been turning her considerable powers of persuasion on Congress to get it to do something about murder, mayhem and other violence on television. She is sure, she says, that Congress can act without violating the First Amendment.

Fletcher is the fictional mystery writer played by Angela Lansbury on the popular, long-running CBS television drama, "Murder, She Wrote." Fletcher needs a murder every week to solve; beyond that, her show – depicting killings in color and in vivid detail – represents much of what is common TV fare. If Congress acts as Reno wants, Jessica could become something of an outlaw. And so might the press in general.

At least 10 bills now pending in Congress propose various legal attacks on televised violence (see "Whatever Happened to Freedom of Speech?" November). Interestingly, not one of the measures tries to define the kind of "violence" that would be banned (or limited to hours when children might not watch).

A fairly typical bill, offered by Sen. Ernest F. Hollings (D-S.C.), would give the Federal Communications Commission authority to "prohibit the distribution of violent programming during hours when children are likely to comprise a substantial portion of the viewing audience." The bill makes no attempt to say what kind of program is violent. It would be up to the FCC to decide.

The FCC and the courts (inevitably called in to review what the FCC does) might well have to rely on something akin to Supreme Court Justice Potter Stewart's classic comment on obscenity. He said he could not define it, "but I know it when I see it."

FCC aides and federal judges may find it even harder to define violence than obscenity. But whatever they come up with could have a real impact on the news industry, too, since violence – real, not fictional – is a staple of the news budget.

The political rhetoric thus far has focused on toning down television violence, especially on entertainment shows. Some of the proposed bills would explicitly exempt news broadcasts and documentaries. But even if Congress chooses to limit its efforts to entertainment shows on radio or TV, the effect almost surely would be felt beyond broadcasting.

Here's why: To forbid any form of expression (or even to regulate it closely), the prohibited material must first be defined in a way that puts it outside the protection of the First Amendment. That is not easy; the FCC and Congress have been trying to define indecency for a generation, and their efforts are still in dispute.

The Supreme Court took away the First Amendment's protection for obscenity by finally concluding that it had so little social value that it deserved no protection. The court wrote a convoluted definition that prosecutors have had enormous difficulty enforcing. The same difficulty no doubt would surround a definition of forbidden violence.

The newspaper industry never got caught up in the struggle over obscenity because it customarily chose not to print sexually explicit material. Thus, obscenity decisions hardly touched the industry; that was somebody else's fight.

But attempts to control depictions of violence could not provide, in practice, a workable exception for news. Legal definitions of violence simply could not be fashioned for one medium and have no effect on the others.

Reno, in a scathing attack on television violence in October, told a Senate committee that "regulation of violence is constitutionally permissible." She was talking about broadcast violence, and she was relying, she said, on the Supreme Court's 1978 decision in Federal Communications Commission vs. Pacifica Foundation , upholding government limits on hours for "indecent" radio shows.

But Reno was discussing only the view that the government is entitled to oversee some programming – an argument that has to do with the medium to be targeted for regulation, and is not about the message. An attack mounted against violent expression is an attack against an idea, an image, a message conveyed. It has to say what imagery or message is allowed, and what not. If a definition of illegal violence is forthcoming, that will be what violent expression constitutes everywhere it occurs. Prosecutors, as well as the FCC, could go after it, and so could tort lawyers, in attacks on the press.

Reno and Congress, in trying to make a case for action, would have to show why violence is socially harmful, especially why make-believe violence is more socially harmful than the real thing. What about a photo of an American GI's body being dragged through the streets of Mogadishu? Is that violent image different, just because it is "news"? l