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“‘Tom & Jerry’ is among the most violent shows on TV. But I grew up watching it, and I never dropped an anvil on anyone’s head.”
——Hot 97 PD Tracy Cloherty
ENEMY AT THE GATES
Lieberman And Friends Target Music Biz
In Latest Offensive
By Simon Glickman & Marc Pollack

The entertainment industry is bracing itself once again for a legislative onslaught. Last week, Beltway politicos launched another attack on “explicit content” aimed at kids—this time from a marketing angle designed to ape (or should we say “Camel”?) successful past efforts against the tobacco industry.

On April 26, Sen. Joseph Lieberman (D-CT), along with co-sponsors Hillary Clinton (D-NY) and Herb Kohl (D-WI), introduced the Media Marketing Accountability Act, proposed legislation that would extend the authority of the Federal Trade Commission to bring action against businesses engaging in “false and deceptive advertising practices,” which include marketing adult-rated product to children. (Click on the “Airhead” cartoon, right below the lefthand headlines, for our take on the issue.)

Considering its pro-family-values agenda, it’s odd that there wasn’t a Republican co-sponsor. Republicans have repeated statements by FTC Chairman Robert Pitofsky citing First Amendment issues in attempting to police advertising and marketing. The good news is that, in a Republican-controlled Senate (counting Vice President Dick Cheney), this bill isn’t a sure thing.

The Dems’ “Act” is the latest in a long line of legislative salvos against the entertainment industry. While the stated goal of this effort is to prevent film, music and video-game makers from exploiting their access to young kids, many observers see it as an attack on free expression—and, in particular, music, which was singled out in a recent FTC report.

Unlike the film and video-game industries, the music biz has no voluntary, age-based industry rating system. Warning stickers, which simply indicate explicit lyrics, don’t necessarily prevent young fans from purchasing such material—although many racks refuse to carry stickered CDs. The music industry does, however, offer clean versions of certain albums, a practice that neither film nor video-game companies follow.

Lieberman’s bill is designed not to regulate content but rather its marketing. This is a new twist on an ongoing battle between the entertainment biz and its DC critics, but the marketing angle—the same one that permitted federal action against and further regulation of tobacco advertising—gives the FTC an authority it would otherwise not yield to control industry activity.

“If you voluntarily label a product as being unsuitable for kids and then turn around and market it directly to kids in contradiction of your ratings system, then you should be held accountable, just like any other company in America that misleads consumers,” Lieberman told CNN. “That’s not censorship. That’s common sense.”

Lyrics by such artists as Eminem, Marilyn Manson, Snoop Dogg, Master P, Limp Bizkit and Lil’ Kim, among many others, have been used as a pretext for legislative action. Ten or 15 years ago, the list would have read, in part: Judas Priest, 2 Live Crew, Body Count, N.W.A., Prince, W.A.S.P. and Motley Crue. Ah, nostalgia.

The bill would bar companies from pushing adult-rated content directly to minors as determined by the FTC (emphasis added by us to make you more paranoid) or marketing said materials in venues where kids are a “substantial proportion” of the audience. The definition of “adult-rated” with respect to music is “containing explicit content.” Furthermore:

        The FTC would be authorized to dole out fines up to $11,000 per day, per offense, depending on the “nature of the violation.” This is in addition to cease-and-desist orders and other tools of intimidation wielded by the Man.

        A “safe harbor” provision in the bill would protect companies that enforce self-imposed ratings systems designed to keep such materials from minors.

        If enacted, the bill’s ban on marketing nasty stuff to kids would take effect within 90 days. The FTC would have a year to develop rules for fulfilling the bill’s specifications. It would also be required to issue a report within two years of enactment. Hooray, more reports!

This initiative has already provoked a strong response from free-expression advocates, entertainment execs and the creators of the disputed content.

The American Civil Liberties Union on April 27 released a statement strongly criticizing the proposed legislation. “The implications of this proposed bill,” said ACLU Legislative Counsel Marvin Johnson, “would entail having the FTC pass judgment on advertisements based on highly subjective criteria. By giving the context of an ad greater import than its content—which invariably contains a parental warning that the material is inappropriate—Sen. Lieberman would force the FTC to deem something false and deceptive that is, in reality, entirely truthful,” Johnson offered. “As silly and scary as it sounds, the FTC would become a strange sort of lie detector.”

 Ramona Ripston, Executive Director of the ACLU of Southern California, added, “The Lieberman Bill is a serious threat to America’s constitutional freedoms and the right of parents to control what their children are exposed to. Parents—not government—must have the final say in what their kids see, hear and read. This bill would impose a Beltway-filtered lens on the whole of American culture.”

Elaborates Johnson, “If allowed to become law, this bill would place such a responsibility in the hands of Congress and the Executive Branch. The government must not be turned into a dormitory matron policing America’s choice of entertainment.”

RIAA Senior Executive VP/General Counsel Cary Sherman issued a statement, saying that, while the RIAA hasn’t reviewed the details of the bill, “at a minimum…the very nature of this proposal raises serious constitutional red flags.” Said Sherman: “Because of First Amendment issues, ‘vigilant self-regulation is the best approach’ [as the FTC put it] to ensuring that parents are provided with adequate information to guide their children’s exposure to entertainment media with violent content. Moreover, Sen. Lieberman’s legislation could in fact create a disincentive to providing information to parents about explicit content. By essentially punishing those who adopt voluntary guidelines, the legislation would have the unintentional result of discouraging participation in the successful Parental Advisory Program. We are committed to providing parents with information so that they can make the best choices for their children.”

“I don’t think it’s going to have very much of an impact,” says Hot 97 New York PD Tracy Cloherty. “This could quite possibly go away—at least I’m hoping it will. There are real problems in this country, and I don’t think you can point to lyrics as their source. They’re a sign of the times, for better or worse. Hip-hop is a reflection of society. Elvis Presley was going to erode the morals of our country. Now he’s on oldies stations.

“Music is all voluntary,” she continued. “You have to turn the radio on or off, you go to the store and buy the record. But it’s not that deep. No one’s using this as a blueprint for life.

“If you’re worried about corrupting a young audience, start with Saturday morning cartoons,” Cloherty quipped. “‘Tom & Jerry’ is among the most violent shows on TV. But I grew up watching it, and I never dropped an anvil on anyone’s head.”

Though the music industry bears the brunt of the current political assault, it isn’t the only branch of the entertainment industry that could be affected. The Motion Picture Association of America’s 30-year-old voluntary rating system, for example, would not prevent the FTC from penalizing film companies for marketing certain movies to kids—even though a film’s rating clearly indicates the appropriate minimum age for viewing. MPAA head Jack Valenti, founder of the system, has said that such a result could deter studios from continuing to employ the rating system.

Said Sen. Clinton to CNN, exhibiting her characteristic pugnacity: “If there is a move on the part of anyone to discard this kind of voluntary labeling or to turn their backs on this because finally we’re feeling compelled to put some teeth into the enforcement, I think we’d have to take a hard look at that.”

Despite the political momentum currently enjoyed by Lieberman and company, the bill raises numerous questions about the FTC’s authority to regulate speech—a far more subjective area than the marketing of cigarettes—and will most likely serve the careers of its authors more than anything else. But the specter of its possible passage has already put a chill on the biz.

And to think, we voted for this guy. Oy vey.

David Simutis contributed to this story.

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