Free speech is threatened, too

November 24, 1993|By Floyd Abrams

AS THE Senate Commerce Committee's hearings on television violence drew to a close, two senators argued about a movie.

Sen. Conrad Burns, R-Mont., had just seen "Rudy" in a theater. Although the movie was violent, he thought it was a "wonderful" and "delightful" story about a Notre Dame football player that the entire family should see on television.

Sen. Byron L. Dorgan, D-N.D., disagreed. Seeing the movie in a theater was one thing, he said. Allowing it to come out of "a television box in the living room" was something else.

The exchange was illuminating. We cannot even agree on which violence children should not see.

Should it include "Roots" and "Lonesome Dove"? "The War of the Roses" and "True Grit"?

Or is the problem only "bad" violence, the sordid and frightening depiction, cited by Illinois Sen. Paul Simon, of some fiend on the attack with a chainsaw?

Laws don't have vocabularies that distinguish between good and bad violence.

Adjectives help when we speak to each other -- words like "sordid" and "frightening." Even a word like "bad." But these are not and cannot be the words of legislation.

If they were, we would need a constantly monitoring Federal Communications Commission deciding on matters of subjective taste and psychological reality: which violence is constructive, which gratuitous.

We would, in short, need a national censorship board. But that is the world of the Ayatollah, not ours.

One proposal is that Congress should bar the showing of any act of violence on television in the evening before, say, 11 p.m. No program or film with any violence, whatever its artistic value or potential social benefit, could thus be shown at a time when most adults and many children watch TV. Not "Rudy." Not "A Streetcar Named Desire." We could watch "Married With Children" but not "War and Remembrance," "Star Search" but not "Star Wars."

This is censorship, plain and simple. It is no less so because the legislation is designed to protect children.

Much of the anti-violence legislation before Congress is justified on the ground that since Congress can regulate "indecency" on TV, it should be permitted to regulate violence as well.

But the depiction of violence, some of which is contained in the greatest works of literature and film, is hardly equivalent to that of "indecent material" -- material that a much-disputed 5-4 Supreme Court opinion in 1978 concluded "surely lies at the periphery of First Amendment concern."

Whatever the correctness of that ruling, there is nothing peripheral to the First Amendment of much of the TV programming that so many in Congress seek to regulate.

Senator Burns was right: It is not for Congress to choose whether or when we see "Rudy" on television. And he was right about something else: Legislation in this area cannot be passed "that would stay within the Constitution."

Floyd Abrams, a lawyer, has represented newspapers and broadcasters in First Amendment cases.

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