Proposed Lieberman / Clinton / Kohl bill restricting sales of certain music to children

[John Noble]

. The pertinent provisions of the "Media Marketing Accountability Act of
2001" would apply to movies, music and video games that are "adult-rated"
under a voluntary rating system approved by the FTC. In other words, it
would be an FTCA sec. 5 "deceptive act or practice" ONLY if the product was
truthfully labeled. Then the marketing must be

1) "intentionally directed" to minors; or

2) the audience for the ad includes a "substantial portion" of minors; or

3) "the Commission determines that the advertising or marketing is
otherwise directed or targeted to minors."

The FTC is directed to "prescribe rules that define with specificity the
acts or practices that are deceptive acts or practices," and "in particular
... shall specify criteria for determining whether or not an audience is
comprised of a substantial proportion of minors," and "may include
requirements for the purpose of preventing acts or practices that are
deceptive acts or practices..." Thus, the FTC must define when an audience
for an ad includes a "substantial portion" of minors, which they would
presumably use to bar ads from billboards and Junior Scholastic and the
comics pages of the Sunday paper. The FTC "may" (or may not) identify
additional acts or practices that it concludes are "intentionally directed"
to minors (e.g., the Joe Camel theory that cartoon characters are for
kids); and under the third catch-all can seemingly include advertising that
is unintentionally directed to an audience with an insubstantial proportion
of minors (perhaps even on an ad hoc, case-by-case basis).

The effort to frame truthful advertising as a deceptive act or practice
seems a futile effort to escape First Amendment scrutiny, and it is
unlikely that the law can be reconciled with ACLU v Reno. Access by minors
to national advertising in magazines, movie trailers, billboards etc, is
even less amenable to restriction than access to websites on the internet.
And whatever compelling government interest there is in shielding children
from the adult-rated material would not seem to apply to the advertising;
nor are advertising restrictions a narrowly tailored response to the
problem of minors obtaining the adult-rated material.

Sen. Clinton's comment at the end of the story you posted raises an
interesting issue. She reportedly warned that any abandonment of voluntary
ratings to insulate themselves from sec. 5 exposure, would set off "a
reaction on the part of Congress to require labeling." Unless the Act
passes, it seems unlikely that the industry is going to abandon the ratings
system (nothing moves music off the shelves like an adult content rating),
but does anyone have an opinion on whether mandatory ratings pass
constitutional muster. Is it more like labeling requirements that apply to
packaged foods and drugs, or would it be barred by the compelled speech
doctrine.