Floyd Abrams

Media Violence: Is there ‘reasonable ground’ to consider it a ‘Serious Evil’?

VTR Date: January 11, 1994

Guest: Abrams, Floyd


Host: Richard D. Heffner
Guest: Floyd Abrams
Title: Media Violence: Is there reasonable ground
to consider it a ‘Serious Evil’?”
VTR: 1/11/94

I’m Richard Heffner, your host on The Open Mind. And today’s guest has joined me so often at this table over the years that ours by now seems almost to be a dog and pony act right out of vaudeville. Well, late in 1993, my good friend, the enormously accomplished and universally highly regarded constitutional attorney, Floyd Abrams, countered a New York Times op-ed piece by United States Senator Ernest Hollings entitled “Save the Children” with one entitled “Save Free Speech.”

The Times called theirs “A dialogue on TV violence: Survival versus censorship.” With Floyd Abrams concluding that, “Legislation in this area, meaning media violence, cannot be passed that would stay within the Constitution, meaning the First Amendment.” A proposition that Senator Hollings arid Attorney General Janet Reno, among many others, flatly reject.

Then my guest addressed himself to the same issue at the very same time in his brilliant Elliot lecture at Yale Law School. Its title: “Serious Injury, Serious Evil, and the First Amendment.” So that Floyd Abrams will understand if I feel constrained to ask him first today if he ever thinks that there is reasonable ground in contemporary America to find media violence a serious evil wreaking, serious injury. That’s not an unfair question, Floyd, is it?

ABRAMS: It’s a very fair question. I-think on one level the answer is yes. But only one. I don’t think that media violence causes crime. I don’t think it causes violence. I’m very unpersuaded by the so-called studies that are so often cited without proposition. But I do think that speech matters, and that if speech glorifies violence, people will tend to become persuaded that violence is an acceptable form of conduct. I think if someone writ comic books in the old days, or higher quality books, saying something or urging something or advocating something, people are sometimes persuaded. I don’t think media violence is irrelevant. I don’t think it’s anything Congress can or should try to do anything about. I do think that the impact is, like alt communications, long range, not short. What it affects is values, the way people think about things. That’s, on the one hand, just the sort of thing the First Amendment protects, and on the other, it matters. And so if we can jawbone some people to persuade them to avoid gratuitous violence or the glorification of violence, I think that’s fine. But in my view, nothing more than that is constitutionally appropriate or ought to even be tried.

HEFFNER: If we were to take the word “constitutional, constitutionally” — you say “Not constitutionally appropriate” — out for a moment, would citizen Abrams, father Abrams – because you’re concerned about your children and their wellbeing, I know that very well — if you were to take that word out, would you have some further feeling about the importance of, and perhaps the necessity to, do something?

ABRAMS: With or without the word “constitutional in, there is a level of desirability in having a higher class, rather than lower class, literature, movies, television, and the like. Certain types of television degrades the people that watch it. They have a right to watch it, but if it were up to me – at one point it was, when my children were younger– kept them from watching, and my wife kept them, even more strongly than I, from watching all sorts of programs that we thought weren’t good for them, or might not be good for them. Or might be scary. I remember being terrified as a kid listening to the radio at some of the programs that were then on and that existed for the purpose of scaring people then my age. I wouldn’t have thought of taking it off the air. As a parent I might have thought of restricting a little bit of access to it.

But in general, look, I think a lot of this talk is overdone, overblown, that we are deliberately not facing up to real-life causes of violence, but trying to put the onus on Hollywood, on television; on media. If it has an impact in the sense that I’m talking about, if it has an impact of harming or encouraging certain values to be something other than what I wish they would be, yeah, I wish somebody would move a little bit away from that. But that’s really not central or even a serious problem in America today. And people don’t like to talk about real problems. I mean, people don’t want to talk about poverty, because we’ve pretty well given up. They don’t want to talk about guns because it’s too controversial. They don’t want to talk about crack because we don’t know what to do about it.

So what do we do? We talk about violence on television as if we’re talking about something which really has direct impact on the violence in our society, and I just don’t buy it.

HEFFNER: You know, Floyd, this notion, that we do the one rather than the others, if I may, I challenge that, because we do talk about crack, we do talk about poverty, we do talk about guns, we do talk about all of these social evils. But the communications industries seem to get very much involved in this notion that we should not also talk and also point the finger at, also talk about the violence that you refer to. You say, there are values perhaps pushed here, there are attitudes that are perhaps exacerbated here. You don’t seem terribly excited about it.

ABRAMS: No, I don’t think it’s much of a problem. But it’s real. That’s the only reason that I’m even prepared to say, look, for those people that really believe that the depiction of violence on television has an impact of a more direct nature than I think, yeah, we want to put some pressure on Hollywood, you want to call in the television executives and have Senator Hollings yell at them now and then. That’s okay. It’s not important, but that’s okay. What’s important to me is that Congress not pass laws which Congress shouldn’t pass, and that we still have a free system of communications in the country, understanding, understanding that the nature of freedom is that there’ll be some publications, some broadcasts, some films that you or I or others will find unattractive or which we will be very uncomfortable to have certain people watch.

HEFFNER: “Unattractive.” That’s an interesting word. That’s perhaps as far as you’d go. It’s unattractive.

ABRAMS: It’s that sort of word. Yes, yes. When I read about kids, young people applauding a murder in a movie theater, that’s disturbing. It’s a disturbing commentary on our society. It is much less a commentary on the movie than on what we have become as a society. But if you ask me, “Do I think that movie is good for them’?” No, I don’t think it’s good for them. I think people have a right to put it out, and they have a right to watch it. But ;he fact that, even if I’m right, even if I’m right in what I say, there may be a right to do it, doesn’t mean that I think it’s a wonderful thing, but that I’m going to go out tooting my horn for in our life. It’s simply one of a lot of things in our society which are available to people.

HEFFNER: When you say, “It’s much less a commentary on the movie than it is on our society.” But our society seems to me – and I would think you would say this about many other things — to be made up of one part movies, one part television, one part this, one part that.

ABRAMS: Uh hum. Why are you leaving out life? Why are you leaving out anything real…

HEFFNER: No, no, no…

ABRAMS: …as you listed the things that make up a part of our society?

HEFFNER: Oh, I’m not leaving them out. You just stopped me before I could make the list that you make. I think our lives are made up of all of these things. Now there is a focus on the part of some people on that part, that singular part that we think of as media violence. And you seem to be saying that’s not so important taken in the whole kit and kaboodle.

ABRAMS: I’m saying, at the same time, yeah, that’s not so important. I’m also saying, hey, you really better be careful when you start cracking down on communications, on the press, on speech. And I would say it even if we didn’t have a First Amendment, because of my more generalized sense that it’s terribly dangerous for government to get in the business of deciding what it is people can watch and what it is they can’t watch.

HEFFNER: Well, suppose we go at it in the other way You say, hey, pressures are fine. I think you would say that. Jawboning…

ABRAMS: Yeah, jawboning is okay. I mean, I’m not going to raise my First Amendment flags and fire my First Amendment cannons every time some government official, either because he believes it or because he thinks he gets good publicity from it, starts yelling at or mocking officials from Hollywood or television, many of whom aren’t all that attractive anyway, and put on their material for motivations not always terribly attractive, they can have at each other. Where I get off the boat and where I get very disturbed is when we even start talking about this in terms of law, where we even start saying, “Look, I’ve got a wonderful idea. We have too much television violence. Let’s pass a law about it.”

HEFFNER: Well, how do you account then for Attorney General Reno’s seeming feeling that, yes, there is something that should be done, can be done, should be done, and within the framework of the Constitution of the United States? How do you account for it?

ABRAMS: I can’t, except to say I believe she’s wrong, that she’s poorly advised, that her position is insupportable legally, and more, that it is insupportable as a matter of social policy. I would be much more comfortable with Attorney General Reno if she had played the role that I and some other people who happen to be on the same side of this play, if she had been the one saying, “You know, we really would like to get less violence on television, but there really are limits, serious limits, institutionally imposed, Constitutionally rooted limits on what Congress can do. And one of them is that Congress can’t pronounce that there may or not be violence on television and when or when not violence may be had on television.’ That seems to me contrary to the heart of a lot of First Amendment law and even more First Amendment policy. So I would have hoped that she would have played the role of the defender of the law against this year’s efforts to do something on the cheap about violence by

focusing on media violence instead of the wide range of other real causes of violence.

HEFFNER: But you see, Floyd, the fact is that she didn’t. The fact is that she seems to be joined by an increasing number of public officials…

ABRAMS: Absolutely.

HEFFNER: .. .and by an increasing public opinion.

ABRAMS: Absolutely. That’s why we need the First Amendment. We don’t need the First Amendment to protect speech which is popular. We don’t need the First Amendment to protect speech when Congress likes the speech. The only time we need the First Amendment is when the Attorney General and the Congress and the public together join up and say, “You know, this is terrible. We just shouldn’t allow this sort of thing.” And the answer, then, is, you know, isn’t it wonderful that we have this bar embodied in our law and in our history to say, “Yeah, we understand that you’re really upset, and you still can’t do it.”

HEFFNER: Of course it’s wonderful, until one takes exception to the title of your Ralph Gregory Elliot Lecture, “Serious Injury, Serious Evil, and the First Amendment.” You seem to be saying, as you follow Holmes and Brandeis, that if there is indeed demonstration of, proof of serious injury, serious evil, then the First Amendment may have to be reconsidered, not as an entity, but in terms of its appropriateness to bring into play. And you quote Brandeis here. You say, “It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent.” Well, there are more and more and more people, Floyd, who believe that there is reasonable ground. At some point, must not respect be paid to those conclusions that reasonable people feel that there is reasonable ground?

ABRAMS: First, Dick; you have with your unerring eye picked out the one weakness in Justice Brandeis’s opinion. That’s the use of the word “reasonable.” We’ve come a lot farther along the road of First Amendment protection since then. But the basic thrust of that is, in my view, quite correct. And what Justice Brandeis was saying was, “Look, be careful here. It’s not enough that you are afraid of speech. It’s not enough that you have some sense that serious harm will result. You really have to be quite sure that it will and that it will be imminent.” And in the most famous line from that, one of the most famous of Supreme Court opinions, when Justice Brandeis said, “Men feared witched and burned women.” That’s the sort of thing that I’m afraid of as Congress, with the support that you rightly paint out of an increasing amount of the public, says, “Well, this is something we can do.” And then the Attorney General comes in and weigh in; so far at least, along the side of saying, “Yes, I think you really can do that as & constitutional matter.” And we’re on the lip, as we meet right now, of some sort of legislation in which Congress is going to presume to tell broadcasters when they can broadcast what sort of material on television. And I find it very, very disturbing. That doesn’t mean that there are no situations in which Congress can act about certain types of speech, you know, certain types of national security harm, certain types of truly imminent danger to the country. But we have nothing like that. Nothing.

HEFFNER: Well, of course we have nothing like that in your estimation. Imminent danger does not exist, as far as you are concerned. You distance…

ABRAMS: Because of television? It is a joke, Dick, really. It is a joke to say that our country stands in imminent danger because of violence on television.

HEFFNER: You know, Floyd, you’re so wonderful at smiling and saying that, that who could not believe…

ABRAMS: Do you disagree with that?


ABRAMS: Do you really thing that we are in imminent danger as a


HEFFNER: I disbelieve the notion that one can shrug off quite as easily as you do – and I accuse you of shrugging it off, okay? So what?

ABRAMS: Well, I don’t think… No, it’s not so what.

HEFFNER: No, no, no. Wait a minute. Let me finish.

ABRAMS: All right. All right.

HEFFNER: I’m not talking about television alone. I believe that there is a quality to our society that has been exacerbated by the violence in media. Maybe it’s because I sit here every week, but I do believe that we may not be, as the kids used to say, “What we eat,” but that we sure h are becoming very rapidly what we see and hear. This medium and film, and etcetera. And yes, I do believe in the power of the media. I do believe that you cab have a society Whose values are to some important extent created, no, but exacerbated by the media, yes.

ABRAMS: And that’s the classic argument against free speech. I mean, that’s what it is. It’s the, “If we let this thing go on, people will learn from it, Learn wrong things, learn dangerous things from it. So let’s crack down.” 1 was the argument against having public libraries in the first instance. That if we expose the masses to all of this stuff, they would do terrible things.

HEFFNER: I wish I could do what you do, to drag in public libraries and…

ABRAMS: But I’m right.

HEFFNER: …make the comparison. No, you’re wrong. (Laughter)

ABRAMS: (Laughter)

HEFFNER: You’re wrong, and you’re so eloquent in doing it. You’re more eloquent than those tobacco people who kept insisting. Because there is no way, they said, of identifying the connection between cancer and tobacco or heart disease and tobacco. Let’s not take these enormous steps. Well, Floyd, I go along 1000 percent with you that there’ll never be a way of clearly identifying a connection between violence and the media and what happens in the streets

ABRAMS: And if there is never a way of doing it, my argument is that we ought to be awfully careful about starting down a road where the government tells the speakers out there, the broadcasters, the filmmakers, other people who write or compose or the like, that because even though we’re not really sure that what you do does this terrible harm, we think it really might, so, you know what, we’re going to err on the side of safety. That, more than anything, was the lesson that Justice Brandeis was opposing, that that view was the one that he was opposing in saying, in substance, that our devotion to freedom of expression involves risk taking. It involves all the risks of speech. And I would add to that that what Congress is considering doing, what the Attorney General baa constitutional, involves all the risks of suppression of speech.

HEFENER: That’s why I wish you were on the other side. i wish you were taking that great intelligence and puffing it to bear on how do we deal with a risk. And I concede that it is a risk, a potential, something that I feel and many other feel, but is not going to identified or proven. Wish that you were putting your deep and profound concern, which I share, for free speech and for the First Amendment, not in that traditional Abrams absolutist way, but in a way that might help us out of this situation, because it seems to me maintaining the posture you’re maintaining is going to lead only to slapping on the head.

ABRAMS: Well, Dick, I want to be really candid. I don’t think we’re in a situation in which, you know, we need fear that if we don’t act today or tomorrow or soon or sometime, that the country will be the victim of some terrible harm because of what it is we’re talking about. We have a violence epidemic in America. We are fearful of using our streets. We can’t even sit in our own apartments and our own houses without fear. And in my view, to focus on television as the cause of, even as a major, as a serious cause of that, as a likely cause of that, is simply a cop-out, to avoid, not on your part, but our society’s part, to avoid dealing with problems we don’t want to deal with, that we can’t deal with, that are too expensive to deal with, that we’ve given up thinking we know how to deal with. And, you know, there’ll be members of Congress… This might even pass in the courts. I’m not saying for sure that my views are going to be vindicated in the courts. I think they will be on this one. But they might not be. People get frightened enough, who knows what will happen.

HEFFNER: You make the point, eloquently as always, that there’s probably no way of writing laws that could be effective in this region without doing damage to First Amendment provisions.

ABRAMS: Yeah. I mean, my point is that you either have to write a law where the language allows predictability, which is, for example, in some of the proposed laws, saying any act of overt hostility of one sort or another involving physical conduct between one person or one image and another, then I understand the problem is that it sweeps in most of the best of literature. Or you can have a law which says no gratuitous violence. You can use adjectives to try to define what it is you don’t want on television. Not violence, but violence that we thin goes too that, I would say, is by its nature vague in the sense that we don’t want and don’t allow our laws to be.

HEFFNER: What’s going to happen, Floyd?

ABRAMS: Right now I don’t think that we’re likely to have legislation immediately. There are negotiations which go on sometimes between broadcasters and the Congress. It may be that broadcasters will say some things and do some things which will satisfy Congress. It’s sort of ironic, I think, that we need in Congress talks about violence at a time when there’s probably less violence on broadcast television than any time in the last 10 or 20 years. But if you just check out primetime television on the networks, you have a significant diminution of the amount of violence that’s on. That is not true of some cable channels, and it’s not true as much of the independent stations. But I guess I don’t think anything is going to happen short term. But I think more likely than not there will be some legislation down the pike. I think someone’s going to lie down on a street, like those boys did, having watched the Disney film, the program…

HEFFNER: The night before a vote.

ABRAMS: …and get hurt, or get run over, and Congress will be in an uproar, and someone will say we just can’t allow this sort of thing to go on, and some people like me will say, sort of, ‘Give me a break. These kids are drunk, and they are behaving in an antisocial way, and we cannot have a system of free expression based on how people that are drunk or pathological react to television or movies.” But I wouldn’t be surprised if at some point we have legislation. And that’s why we need a Supreme Court and the First Amendment.

HEFFNER: But you, in the ten seconds we have remaining, kind of think that this Supreme Court might not turn its back on such a legislation.

ABRAMS: I think it would strike down this legislation. But you certainly can’t be sure. And the angrier the public is, and the Supreme Court are people too. They get angry also.

HEFFNER: Floyd, I don’t want legislation, but if there’s going to be legislation, I wish you were writing it.

ABRAMS: No way. (Laughter)

HEFFNER: Floyd Abrams, thank you so much for joining me today on The Open Mind. Obviously a problem we’re going to have to deal with increasingly over the years.

And thanks too, to you in the audience. I hope you join us again next time. And if you’d like to share your thoughts about our program today, please write: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts, send $2 in check or money order.

Meanwhile, as another old friend used to say, “Good night, and good luck.”