Media Marketing Accountability Act: First Amendment Analysis

CRS Report for Congress
Received through the CRS Web
Media Marketing Accountability Act: First
Amendment Analysis
Henry Cohen
Legislative Attorney
American Law Division
Summary
The Media Marketing Accountability Act of 2001, S. 792 and H.R. 2246, 107^t^h
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 freedom¹
of speech.
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

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 Despite the word “system,” the bill would not require that there be a rating or labeling system.
³ 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.

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 non-
commercial speech.⁵ The Supreme Court has prescribed the four-prong Central Hudson
test to determine whether a governmental regulation of commercial speech is constitu-
tional. 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 mis-
leading”) 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 those⁷
ends. 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).

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 be⁸
banned. 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.

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 on¹²
commercial expression.’”
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 violence¹³

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

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 minors¹⁴
will view or listen to those products? 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 with¹⁵
the burden on speech imposed by its prohibition.”
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).