Government Examines Commercial Speech

There were strong signs last week of just how far the federal government might go in curbing commercial speech to protect children.

The Federal Trade Commission released a second report on media violence, saying the entertainment industry must do more to reduce its marketing to kids. In response, Sen. Joe Lieberman, D-Conn., introduced a bill that would allow the FTC to charge entertainment companies with deceptive ad practices and to issue fines if the companies advertise adult-rated content in media that targets minors.

On a separate front, the Supreme Court could write new rules for the protection of commercial speech after hearing arguments on whether Massachusetts can restrict tobacco ads from venues where kids might see them.

“The issue of the hour is, what are the rules for the protection of kids in the advertising area?” said Dan Jaffe, executive vice president of the Association of National Advertisers. “When can the government step in and stop messages because children can see them?”

The FTC report criticized the music industry in particular for not improving its marketing practices since the commission issued its first report in September. The industry had promised to include warnings of explicit lyrics in its ads, but the FTC found that it did so less than a third of the time, said Mary Engle, assistant director of the FTC’s Advertising Practices Division, at an American Advertising Federation conference.

Lieberman, a persistent critic of Hollywood, said his bill “would provide a narrowly tailored shield” by giving the FTC authority to fine companies up to $11,000 per offense if they market violent material intended for adults to kids. “The bottom line here is that the First Amendment is not a license to deceive,” Lieberman said.

At the Supreme Court, justices heard a tobacco industry challenge to a Massachusetts law that prohibits cigarette ads in stadiums, or within 1,000 feet of a public playground, park or school [Adweek, April 23]. During argument, justices seemed to focus more on whether the restrictions are preempted under federal law, which would remove them from ruling on First Amendment issues raised in the case.