Media and Child Rights: The US Perspective

MEDIA AND CHILD RIGHTS: THE U.S SCENARIO

The role of media and child right is given greater emphasis in the United States. The laws aimed at protecting children cannot substantially restrict what is available to adults. A Virginia statute prohibited the display for commercial purposes of sexually explicit material deemed harmful to juveniles. Materials that included nudity, sexual conduct, or described "sexual excitement" were included in the ban. Such a restriction affects many types of books that are legal to sell to adults. Booksellers who sold a wide range of books had one of four options under the statute. They could ban per-sons under eighteen from the store, but this would hurt the sale of books because the store would appear to be an adults-only facility, unattractive to many book buyers. Storeowners could establish adults-only sections in the store, but the ban covered so many different categories of works, this would be almost unworkable. For example, there would have to be two different photography book sections, one for "adults only" for the books that contained the occasional nude and one in the non-restricted section.

Storeowners could refrain from stocking any book covered by the ban, but that would include a vast number of books, including some very popular bestselling works. Alternatively, these banned books are carried behind the counter, again a problem by virtue of the tremendous number of books that would be restricted. The state defended the law under the .Ginsberg standard in a suit brought by the American Booksellers. But the U.S. District Court said the statute was simply too broad and placed a ‘substantial restriction’ upon adult access to protected material (American Booksellers v. Strobel, 1985; but in Upper Midwest Booksellers v. Minneapolis, 1985, where a more narrowly drawn ordinance aimed at protecting minors was upheld).

In 1982, the United States Supreme Court unanimously upheld a New York statute aimed at limiting the distribution of child pornography. The state law prohibits any person from knowingly promoting a sexual performance by a child under the age of sixteen years by distributing material that photographically depicts such a performance. The statute explicitly defines sexual performance as sexual conduct and lists the kinds of conduct that are prohibited.

Justice Byron White wrote that, as pornography defined in the statute is unprotected speech and subject to content-based regulation. The state has a strong interest in protecting the well-being of children. To help in preventing the abuse of children who are forced to engage in sexual contract for commercial purposes, the state can prohibit the distribution of material that shows children engaged in such conduct, even if this material might not be obscene under the legal framework. The value of permitting live performances and photographic re-productions of children engaged in lewd sexual conduct is exceedingly modest, the Justice said. The law is aimed at stopping the sexual exploitation of children. One sure way to stop or at least reduce this exploitation is to ban the distribution of films in which children are depicted in sexual conduct. Distribution of written descriptions or other kinds of depictions (drawings) of children engaged in sexual conduct that are not otherwise obscene and that do not involve live performances are still protected by the First Amendment, White said (New York v. Ferber, 1982).

While the courts were wrestling with the problems of community standards, another trend has been developing in obscenity law: a nationwide crackdown on the production and distribution of films and other works depicting minors in sexually explicit roles. By the early 1980s, the federal government and at least 20 states had passed laws to ban the use of minors in such roles even if the work was not legally obscene.

In 1982, the Supreme Court ruled on the constitutionality of these laws in New York v. Ferber (458 U.S. 747). The high court carved out an exception to the normal rules on obscenity, upholding a New York law that permitted criminal prosecutions for those who produce or sell printed matter or movies in which minors perform sex acts, without any proof of obscenity. The court ruled that the states have the right to prohibit children from appearing in sexually explicit scenes regardless of the literary merit or non-obscene nature of the work. Where such a scene is needed for literary or artistic reasons, the court said, "A person over the statutory age who looked younger could be utilized."

In urging, the high court to find the New York law unconstitutional civil libertarians and the book publishing industry warned that such laws be used to prosecute those who produce many socially important works, including motion pictures such as Taxi Driver. The Supreme Court did not heed their arguments, choosing instead to give the states a relatively free hand to regulate the use of minors in sexually explicit roles.

In 1990, the Supreme Court again allowed the states to adopt rules that are more restrictive for minors than for adults. In Osborne v. Ohio (495 U.S. 103), the court carved out an exception to the Stanley v. Georgia ruling. Stanley had created a right to possess even obscene books or movies in the privacy of one's own home without government interference. In Osborne, the court said Ohio could prosecute a person for the mere private possession of sexually oriented materials in his own home if the materials involved children. In a controversial 6-3 ruling, the court rejected arguments that upholding the Ohio law could open the way for laws to punish parents who possessed nude photographs of their own children. The majority held that the Ohio law was not unconstitutionally broad or vague. Yet the Ohio law contained an exemption allowing parents to possess photographs of their own children. Writing for the Court, Justice Syron White said the need to control child pornography was so "compelling' that the states were free to enact laws that might be unconstitutional under other circumstances.

What about sexually explicit videos starring an actor who claimed to be an adult at the time such videos were made but whom in reality was underage? There have been several legal battles over that issue involving actress Traci Lords, who made a number of adult videos before she was 18, using false documents to misrepresent her age. The 1977 Protection of Children (Against Sexual Exploitation) Act seemingly made it a federal crime to produce or distribute sexually explicit materials involving minors, regardless of whether the producer or distributor knows that a performer is under 18. However, a federal appellate court ruled in 1988 that producers of videos could present evidence that they were deceived about a performer's age in their defense (U.S. v. U.S. District Court, 858 F.2d534). And in 1994, the Supreme Court reinterpreted the 1977 law and ruled that it does not permit the criminal prosecution of anyone who does not know that a person appearing in an adult video is under age (U.S. v. X-Citement Video Inc., 513

U.S. 64). Congress offered prosecutors a way around the safeguards for film and video producers in the X-Citement Video decision by passing the Child Pornography Prevention Act of 1996. In sweeping terms, this law banned not only the use of minors in sexually explicit roles (even non-obscene ones) but also images that appear to depict a minor engaged in sexually explicit conduct." The law established stiff fines and prison sentences not only for the producers of films, videos, photographs or computer-generated images that appear to depict a minor engaged in sexual activity but also for persons who merely possess such a film, video or image.

The Child Pornography Prevention Act was challenged in court by civil libertarians, booksellers, photographers. Adult film producers and others who said it could be titled to prosecute anyone who possessed a copy of many main-stream movies, including not only Taxi Driver but also The Exorcist, Dirty Dancing, Animal House or The Last Picture Show, among many others. But ruling in Ashcroft v. Free Speech: Coalition (535 US. 2.34), writing for the majority, Justice Anthony M. Kennedy agreed that the Child Pornography Prevention Act is overly broad and vague.

Although American law has been unsympathetic to the flood of pornographic materials in the United States, child pornography has been raising in an alarming rate. Legislation has been created to outlaw using minors to perform or act in the creation of films, books, or magazine articles or other items depicting the sexual exploitation of children.

The measure was designed to put a stop to magazines, which could be purchased in 1977 such as "Chicken Delight," "Lust for Children," "Lollitots," and "Child Discipline" that were then being sold. The legislation, signed into law in 1978 by President Jimmy Carter, was formally called the Protection of Children against Sexual Exploitation Act of 1977. This legislation was intended to do the following:

·        Make it a Federal crime to use children in the production of pornographic materials.

·        Prohibit the interstate transportation of children for the purpose of engaging in prostitution, and

·        increase the penalty provisions

This measure tried to correct loopholes in federal Obscenity-statutes. Before this law passed, there was no federal statute prohibiting use of children in production of materials that depict explicit sexual conduct. This statute defined "minor" as any person under the age of 16 years. Penalties for violation of this statutory provision are two-ten years imprisonment and/or a fine of up to -$10,000 on, first offense, or five-fifteen years imprisonment and/or fine of up to $15,000 for 'subsequent offenses.'

Committees of the U.S. Senate and House of Representatives found a close connection between child pornography and the use of young children as prostitutes. For example, a 17-year-old Chicago youth who had sold himself on the streets for two years, could often earn close to $500 a week in 1977—the equivalent of perhaps$2,000 a week in 1997—by selling himself two or three times a night to perform various sex acts with "chicken hawks" or pose for pornographic pictures or both."

Similar is the case with broadcasting and minor audience. Washington DC was also very much strict regarding the case of channels and their show’s impact upon minor audience.  The court said the commission unconstitutionally infringed on broadcasters' right to speak and adults' right to receive by failing to consider sufficiently why late evening broadcasts of indecency need to be banned to protect children. Until April 1987, the FCC did not punish indecency broadcast after 10 P.M. because the commission assumed that few children 12 years old and younger would be the audience. However, in 1987, citing new evidence of children's listening and viewing habits, the FCC told broadcasters they could "safely" air indecent programming only between midnight and 6 A.m.

However, the D.C. Circuit Court rescinded the FCC's new time limitation, saying that the commission had not demonstrated that children would be listening to the radio or watching television between 10 P.M. and midnight.' The court explained that, while the FCC had been restricting indecency to protect children 12 years old and younger, the commission was justifying its new policy with data on the viewing habits of children 12 and older. The court said that if the commission had decided to protect children older than 12 from indecency, it needed to explain why. In addition, the D.C.Circuit Court said the FCC needed to provide data on the number of children listening to indecent programs rather than what the commission provided, the number of children listening to all radio stations in a market.

In the wake of the D.C. Circuit's opinion, the FCC decided to be cautious by taking action against indecency broadcast only before 8 P.M. However, in September 1988, Congress banned indecency at all times. Congress ordered the FCC to prohibit indecent programming 24 hours a day despite warnings from some of its own members, as well as from legal experts, that a ban of indecency would violate the First Amendment.

In Sable Communications v. FCC, discussed later in the chapter, the Supreme Court said that non-obscene sexual expression sent by telephone wires is protected by the First Amendment. Therefore, indecent telephone communication could be regulated to protect children but not in a way that would deny access to adults.'

Also in 1989, the U.S. Court of Appeals for the District of Columbia Circuit enjoined the FCC from enforcing the congressional ban on indecency.' Later in the year, the court remanded to the FCC the constitutional challenge to the ban after the commission asked for the opportunity to establish a case for a 24-hour-a-day restriction on indecency.' In the summer of 1990, the commission said in a report prepared for the D.C. Circuit that a 24-hour ban of indecency was a "narrowly tailored" regulation designed to protect children. The commission said the 24-hour ban was "narrowly tailored" because stations would be allowed to broadcast indecent material if they could demonstrate that children were not in the audience at the time of the broadcast. The commission said that a 24-hour ban could be justified because other "narrowly tailored" options to protect children, such as providing a limited time when indecency could be broadcasted without punitive action, were inadequate since children watch or listen to broadcasts around the clock. The commission adopted 17years old and under as the definition of children.

In contrast to indecency, the regulation of profane language in the broadcast media is rarely an issue. The legal definition of profane language is "irreverence to-wards sacred things" and particularly "an irreverent or blasphemous use of the name of God." Blasphemy is the malicious reproach of God or religion." The FCC is un-likely to punish a station for the isolated use of God or damn as swear words.

Besides objecting to the lack of any sort of educational programming on children's television, parents and citizen groups have also contended that children's programs contain too many ads. They also protest the so-called "program-length commercials," half-hour- or hour-long programs based on a sponsor's product. In 1974, in its children's programming policy statement, the commission suggested that advertising during children's programs should be limited to 912 minutes per hour on weekends and 12 minutes on weekdays. However, in 1986, the commission said the 1974 guidelines on advertising during children's programming were no longer in force. The commission said only that eliminating restrictions on commercials during children's programming was consistent with its general policy of deregulation, an explanation unacceptable to the U.S. Court of Appeals for the D.C. Circuit. In the first of two 1987 rulings questioning the FCC's children's advertising policies, the D.C. Circuit said the FCC did not adequately explain why the 1974 guidelines suggesting limitations on advertising time during children's programs were no longer needed. The court remanded the case to the commission, asking for a better justification.

In the second D.C. Circuit opinion in 1987, the court overturned an FCC decision ruling that the producers of program-length commercials need not be identified. In National Association for Better Broadcasting v. FCC, the D.C. Circuit said that allowing program-length commercials without adequate labeling betrayed the congressional intent of the 1934 Communications Act.'" Section 317 of the statute, known as the sponsorship identification requirement, requires that broadcasters identify anyone who pays for a commercial or a program with money, services, or some-thing else of value. Although broadcasters are not required to identify programs or services given to a station for free, gifts cannot be "rewarded" with unexplained air-time for a Service, product; or brand-name.

In NABB v. FCC, citizen groups claimed that KCOP-TV did not tell viewers that "He-Man and Masters of the Universe" was, in effect, a sponsored program by the producers of the toy of the same name. "He-Man," based on an invincible animated hero, is created and produced by Mattel and Group W Productions. Through a common practice known as barter syndication, the companies provided the show to KCOP in exchange for two minutes of advertising time during the station's children programming. The National Association for Better Broadcasting argued that Mattel and Group W should be identified under, section 317 because the companies gave something of value," the "He-Man" program, in order that the cartoon based on their product would be aired. The NABB said "He-Man" was, in effect, given to the station because the advertising time was worth only a small proportion of the program's value. Mattel and Group W spent $14 million on the first 65 episodes "He-Man" and received in return only $400,000 worth of advertising time.

The Court ruled that a station did not have to announce that the manufacturer of "He-Man and Masters of the Universe" had provided the station a children's cartoon with the same name. The FCC said the sponsorship identification requirement in the1934 Communications Act restricted deceptive commercial practices by permitting viewers to determine easily when commercial messages were being broadcast. The commission said that its 1974 children's program policy statement adequately protected children from commercial deception by requiring distinctions between programming content and commercial material. The commission, quoting the 1974 statement said the arrangement with KCOP-TV would have violated the sponsorship identification rule only if the show "He-Man" was so closely connected to "He-Man" advertising "that the entire program constitutes a single commercial promotion." The commission said that it recognized the commercial goals of the producers of "He-Man," but did not know how to effectively distinguish the motives and program-product ties of Mattel and Group W from the producers and distribution methods of critically acclaimed programs such as "Sesame Street" and "Peanuts." The commission said it had no evidence that programming based on products harms children. The benefit of the programs to product manufacturers v. as irrelevant, the FCC said, as long as broadcasters believed the cartoons were entertaining or informative and properly distinguished from commercials.

However, the D.C. Circuit said the commission could not avoid Communications Act requirements by hiding behind the 1974 children's programming policy. The sponsorship identification rules apply to all programs, regardless of whether they entertain, the court said. The court noted that members of Congress who drafted the current version of section 317 appeared to believe identification would be required when a company provided to broadcasters without charge a program featuring that company's product or service. The court said that, given the prevalence of barter arrangements for children's programming the FCC MO devise a: standard to deter-mine when the exchange of a program for advertising time does not constitute sponsorship of the program and therefore ought to be identified.

Shortly after the two D.C. Circuit opinions, in October 1987, the FCC initiated a rule-making proceeding into children's advertising. The FCC said it would examine commercial time limits for children's programming and the so-called program length commercials.

Irrespective of many celebrated judgments and various statutes enacted with regard to the protection of child rights, it has been a great paradox regarding the controversial stand of US in the Convention on the Rights of the Child. The Convention on the Rights of the Child is an international treaty that recognizes the human rights of children, defined as persons up to the age of 18 years. In 41 substantive articles, it establishes in international law that States Parties must ensure that all children – without discrimination in any form – benefit from special protection measures and assistance; have access to services such as education and health care; can develop their personalities, abilities and talents to the fullest potential; grow up in an environment of happiness, love and understanding; and are informed about and participate in, achieving their rights in an accessible and active manner.

The Convention on the Rights of the Child is the most widely and rapidly ratified human rights treaty in history. Only two countries, Somalia and the United States, have not ratified this celebrated agreement. Somalia is currently unable to proceed to ratification, as it has no recognized government. By signing the Convention, the United States has signaled its intention to ratify – but has to do so.

Yet then, U.S is one of those pioneering nations, which had serious closer view and legal-judicial actions upon the area of media and child rights. The media, both the electronic as well as the print media, plays an important role in shaping society’s views and influencing the way people think and behave. The media raises awareness, influences behavior and generates public opinion. It also provides credible information, alerts stakeholders and creates a demand for special support services. The media creates pressure groups for early implementation of laws and works as a watchdog of society. By increasing awareness, it plays a critical role in determining responses at all levels to any violence against the rights of children.