4
Pragmatic Analysis

In February 2015, the Federal Communications Commission (FCC) under the Obama administration approved for the first time a comprehensive set of regulations with the purpose of formally protecting net neutrality.1 “Net neutrality” is the belief that internet providers should manage all legal online content equally in terms of access. Proponents of net neutrality argue that internet providers like Comcast and AT&T should not be able to privilege select content with faster download/streaming speeds or block users from content that they deem undesirable. The 2015 regulations argued that broadband internet access is a telecommunications service akin to telephony and radio, so while the companies that provide this access might maintain private interests, their business is nevertheless in the public interest and therefore subject to federal regulation.

Only 2 years later, however, the composition of the FCC had changed under the Trump administration, and in December 2017 the agency voted to repeal the 2015 regulations. The new FCC argued that the development of internet infrastructure had flourished until the 2015 intervention, which imposed a “heavy‐handed framework” that in turn hurt business and the entire “internet ecosystem.”2 In place of formally enshrining net neutrality, the new FCC demanded only additional transparency from internet providers as to their content‐management practices, arguing that the Federal Trade Commission (FTC) could intervene when these companies engaged in unlawful practices that hurt competition or deceived consumers. In light of this relatively quick policy reversal, the jurisdiction of the FCC to regulate internet access remains murky at present.

This chapter asks the question, what should be the government’s role in media? This relationship, of course, varies greatly from society to society. In some countries, the media is state‐owned, ‐controlled, and ‐run, a sort of propagandistic arm of the government. In most democratic societies, the media functions relatively independent of the government, often performing the function of “the Fourth Estate.” But even in democratic societies, government and media are not completely independent, and many media industries favor some level of involvement and regulation by the government. Without robust copyright laws, for instance, media producers would have little legal recourse when someone stole and profited from their work.

The example of net neutrality suggests that the actual practice of regulation is wrought with difficulties. When and under what circumstances is regulation actually necessary? How much regulation is enough without being too much? Past attempts to answer this question have often relied on abstract principles like free speech and public interest. Though these are certainly important principles, without some guiding theoretical framework to suggest how they might be utilized in practice, it is very difficult to approach the relationship between government and media in a critical way. This is where our chapter differs from most on the subject. Rather than presenting a historical overview of government regulation as a loose theme in media studies, we offer the philosophical perspective of Pragmatism as a guiding heuristic for critically evaluating government regulation of the media. The chapter begins by outlining some of the major tenets and thinkers of Pragmatism, before looking at how Pragmatist ideas help us better understand the process of regulation in the US media industries.

Pragmatism: An Overview

Pragmatism is a branch of philosophy that assesses truth in terms of effect, outcome, and practicality. Unlike some philosophers, who view truth as a transcendental constant waiting to be discovered, Pragmatists claim that truth depends on the degree to which a concept or theory provides people with useful results in the process of solving problems. Transcendental truths, by their very nature, cannot be known actually or fully, and many Pragmatists argue that believing or not believing in them has no real bearing on one’s daily life. Instead, the truth of an idea or course of action (and therefore its merit) should be based on tangible results and the possible consequences of supporting or disregarding it. In this framework, truth becomes a sort of label, a quality that a thing can possess or lack, and it is always dependent on contextual factors.

Pragmatism is often referred to as the only significant American contribution to world philosophy, and the connections between Pragmatism’s emphasis on practicality and the American Protestant work ethic are not difficult to see. In addition, almost all key Pragmatic thinkers have come from American institutions. The philosopher Charles Sanders Peirce is credited with actually coining the term in the late 19th century, but other key thinkers have played a more important role in developing the philosophy into its current form. We focus on three in this chapter: William James, John Dewey, and Richard Rorty.

William James (1842–1910)

William James was a psychologist and an important early Pragmatic philosopher. In both Pragmatism (1907) and its sequel, The Meaning of Truth (1909), James in effect “founded” the American school of Pragmatism by popularizing Peirce’s obscure work on the subject, which might otherwise have been forgotten. The union between James’ psychological and Pragmatic interests is best represented by his conception of habit, or “a pathway of discharge formed in the brain, by which certain incoming currents ever after tend to escape.”3 For James, predictable or habitual ways of thinking and acting arise when external phenomena register in the mind. The initial adaptation of the brain in response to something creates a mental pathway for the processing of any future experiences with that thing. This means that habit is essentially practical in nature, for without habits, the mind would have to generate new thoughts and actions each time the individual experienced anything. James compares the formation of habits to a bone fracture: a broken bone may heal, but because of its interaction with something external, it is more vulnerable to future injury than a bone that has never been broken. Habits, then, are not idiosyncratic qualities that an individual happens to possess; they are remnants of interactions with the real world that predispose future actions along somewhat predictable lines.

Habits can be negative or positive. Eating lots of ice cream in response to the stress of studying for a math exam, for example, might lead you to overindulge again during future study sessions, until scarfing down rocky road becomes easier than long division. At the same time, finding a quiet spot in the library to study might lead to future productive sessions in the same location until you are the class’s resident math whiz. The predictability inherent to habit, however, does not mean that it is completely unchanging. New experiences may give rise to new habits or gradually alter existing ones. Concerned roommates who lock up the rocky road whenever they see you take out your math book might encourage you to abandon the frosty treat and inaugurate some healthier coping habits. Alternatively, people who flood the library during finals week may interrupt your normal study habits and force you to try a different method.

Since habits can either help or hinder and are constantly open to revision, James came to believe that “the whole function of philosophy ought to be to find out what definite difference it will make to you and me, at definite instants of our life, if this world formula or that world formula be the true one.”4 In other words, rather than consider the unchanging truths of the universe, philosophers should explore practically how encounters with the world may give rise to better or worse habits within individuals. James’ imperative functions as a touchstone for the very material focus of Pragmatism today, but for much of his career he remained focused on what a Pragmatic orientation could do to better the life of the individual. It was not until the work of John Dewey that the budding philosophy began to grapple with larger social concerns.

John Dewey (1859–1952)

John Dewey is popularly known as a great pillar in American educational theory of the 20th century, but his theories on the nature of education are intrinsically tied to his own Pragmatic philosophy. His major works in relation to Pragmatism include Reconstruction in Philosophy (1919) and The Quest for Certainty (1929). Echoing James, Dewey believed that ways of thinking were essentially habits, in the sense that human beings generate thought in order to overcome difficulties they encounter in the world. Unlike James, however, Dewey introduced communication and social interaction as critical nodes upon which human habits and thoughts rest. “Apart from communication,” he wrote,

habit‐forming wears grooves; behavior is confined to channels established by prior behavior. In so far the tendency is toward monotonous regularity. The very operation of learning sets a limit to itself, and makes subsequent learning more difficult. But this holds only of a habit, a habit in isolation, a non‐communicating habit. Communication not only increases the number and variety of habits, but tends to link them subtly together, and eventually to subject habit‐forming in a particular case to the habit of recognizing that new modes of association will exact a new use of it. Thus habit is formed in view of possible future changes and does not harden so readily.5

In short, the ability to communicate with others is what keeps one’s habits and thoughts from calcifying.

Dewey’s recognition of sociality as the key to altering habits inaugurated his crucial contribution to Pragmatic thought: meliorism, or the recognition of the elements present in a historical moment and the use of applied thought to develop ways of improving them.6 Social problems may exist as products of engrained habits, but the malleable nature of habit also means that these problems can be fixed, especially through communicative and social intervention. With meliorism as his guiding principle, Dewey attempted to shift the focus in American education away from habits of rote memorization and toward an appreciation for flexible problem solving. As the American population changed its habits of thought, Dewey believed, it could work together to correct the many social problems that plagued the time.

Dewey mirrored James in his belief that the purpose of philosophy was to correct real and significant problems in the world, but he also extended James’ focus on the site of those problems from individual to social levels. His thoughts regarding an essentially Pragmatic education were instrumental in connecting individual evolution to social improvement, and in many ways his work paved the way for the tenets of Pragmatist thought we have today. The budding American philosophy, however, still faced a number of conceptual problems. These problems became the focus of one of the most important scholars in contemporary Pragmatism, Richard Rorty.

Richard Rorty (1931–2007)

Richard Rorty began his career in the 1960s as a scholar of analytic philosophy, a branch of thought related to Pragmatism that roughly aligns philosophical work with the empiricism of the hard sciences. As represented in works like Consequences of Pragmatism (1982) and Contingency, Irony, and Solidarity (1989), however, he spent much of his life defending Pragmatism as a distinct philosophy and diffusing some of the perspective’s perceived weaknesses. Rorty railed against the uselessness of metaphysical philosophy because he found it impossible and sterile. For Rorty, such philosophical approaches to life are uninspiring, merely the “search for a way in which one can avoid the need for conversation and deliberation and simply tick off the way things are.”7 Those who engage in Pragmatic approaches may give up the awesome search for some deeper, more complete meaning in life, but they gain a more profound understanding of human systems and an appreciation for human agency.

For Rorty, this Pragmatic appreciation is best cultivated through ironism, or a commitment to seeing the world in terms of contingent historical descriptions (rather than in terms of an unchanging essence). An appreciation of language is key to this view. Taking competing philosophical accounts of the world and of human nature not as records of the truth but as more and less useful ways of describing life, those who embrace irony champion “experimenting with the vocabularies which these people concocted. We redescribe ourselves, our situation, our past, in those terms and compare the results with alternative redescriptions which use the vocabularies of alternative figures. We ironists hope, by this continual redescription, to make the best selves for ourselves that we can.”8 By comparing the various vocabularies that constitute knowledge, then, ironists hope in a truly Pragmatic sense to create identities and societies that “work” for those involved in the moment. These social arrangements never adhere for long, however, because being open to doubt and enacting regular revision is the only way to maintain fidelity with the rhythms of living.

The notion of fidelity is also an important factor in Rorty’s attempts to overcome one of the common criticisms leveled against Pragmatism: relativism. Relativism is the belief that diverse approaches and theories related to a given subject are all equally correct. Action becomes difficult in a relativistic lens because there is no consistent truth to act upon. Because Pragmatism abandons the search for underlying truths on a topic, critics often see it as a relativist approach that cannot practically address the problems it purports to solve. Rorty, however, drew an important distinction between relativism in the metaphysical sense and possibilities as they apply to the real world. Pragmatists are relativistic when it comes to metaphysics, in the sense that all searches for essential truth are equally valid because none of them actually makes any real difference. But when it comes to lived experience and situations, Pragmatists entertain options only to the point that they can be discussed, tested, and selected in the process of problem solving. “When such an alternative is proposed,” Rorty wrote, “we debate it, not in terms of categories or principles but in terms of the various concrete advantages and disadvantages it has.”9 As a result, Pragmatists avoid spinning in relativistic circles by staying true to reality, considering and organizing multiple ideas according to their social use.

The collective ideas of James, Dewey, and Rorty regarding practical application, social utility, and informed discernment provide a foundation for a Pragmatic perspective on the government regulation of media industries. A critical assessment of media regulations is fundamentally melioristic in nature, recognizing that aspects of a historical moment may always be improved upon through human intervention. Furthermore, Pragmatism allows us to judge the worth of regulation according to its perceived outcomes and effects. In a very rough sense, regulatory policy is “true,” worthy, or good if it clearly benefits society or helps to concretely correct social problems. Careful consideration of many factors and deliberation between multiple options are the hallmarks of quality government regulation; engaging in such debates helps ensure that the resulting policy best meets the many needs of those involved. “Bad” regulation, in turn, does not provide definite social benefits or stems from constant, predetermined, or uncontested truths and beliefs about the world. We present a formal paradigm for making these judgments in the following section.

A Pragmatic Approach to the Government Regulation of Media

Two concepts provide the standards for evaluation within a Pragmatic approach to media: consequences and contingencies. Consequences refer to the clear effects of a given regulation on society at large. Generally, consequences must be beneficial to society if we are to deem the regulation a good one. Does it stop advertisers from misrepresenting products and potentially causing harm to significant portions of the population? Does it increase the likelihood that traditionally under‐represented portions of the population will share in the production of media messages? The use of consequences as a standard of judgment reflects the Pragmatic focus on the tangible results of a belief as the measure of its truth. It should also be apparent, however, that the examples presented here are based on contemporary judgments of what actually constitutes a social benefit. People have only recently recognized the increasing of diversity as an important or worthy social goal of regulation. From this, we can see that consequences are always linked to the historical moment.

The fact that we can only make judgments about consequences as historical individuals speaks to the second standard of contingencies, or factors a regulation should address as a result of context and situation. The social norms and predominant technologies of any given moment form a group of contingent factors that influence the possible types of regulation within that moment. Generally, a quality regulation must adequately account for and respond to the socio‐historical factors in play during its creation, and it must consider these factors within the aforementioned framework of social utility. Prior to the invention of Instagram, for example, no one dreamed of debating regulations focused on celebrities and other “influencers” explicitly identifying sponsored content on their accounts. The historical advent of social media prompted the need for this debate, and the unique opportunities of the platform shaped it, but the debate was still centered on the consequence of increased transparency in advertising. The use of contingencies to complement our understanding of consequences mirrors the Pragmatist focus on considering multiple options in the process of solving problems, as well as the spirit of doubt that animates Rorty’s ironism. In short, then, the best regulatory solutions are those that have beneficial consequences according to their historical contingencies.

In addition to the many contingencies presented by socio‐historical context, the regulation of American media must also respond to a particular set of regular or ever‐present contingencies unique to the American context. It may seem strange to you that a factor can be both regular and contingent, especially because Pragmatism itself hinges on a rejection of constants. However, it is important to understand that these factors are regular in their presence but contingent upon one another at any given time. In other words, government regulation must always respond to these particular factors, and the best regulations roughly balance them, but the degree to which one is valued over the other varies from moment to historical moment.

The first set of regular contingencies is the tension between free speech and public interest. The freedoms of speech and press granted by the First Amendment of the US Constitution guarantee the open expression of ideas and the existence of media outlets beyond federal ownership and control. A media industry that is able to report freely and comment upon events functions as an informal check in the American political system. Taken together, the two freedoms often give good reason to hold back government regulation that might impede or censor the free circulation of ideas. At the same time, a completely “free” media would quickly fall apart. Prior to the federal regulation of the radio industry, different private companies would often use the same airwaves and inadvertently jam one another’s signal. Before the advent of government‐regulated telephone service, it was often necessary for families to possess multiple telephones, one for each privately maintained phone network to which they subscribed.10 Thus, at times, it is necessary for the government to intervene in the interest of the public in order to make a media industry more efficient. The resulting tension between the regular contingencies of free speech and public interest represents a uniquely American dichotomy that debates about government regulation must always consider. Dominant social norms or political climates will typically direct which concept trumps the other in relation to regulation. Quality regulation, however, must always consider both.

The second set of regular contingencies is the interplay between government regulation and media self‐regulation. These contingencies are in some ways an extension of the public‐interest focus. They are derived from the social‐responsibility theory of the press, or the notion that the media are in the service of the public and therefore should be guided by issues of public concern. Early media legislators reasoned that airwaves were a publicly owned, finite national resource. Any industry hoping to lease this resource from the public should have its interests in mind, and it became the federal government’s responsibility to manage airwave use based on this principle. Through the FCC (which regulates broadcasting, wire, satellite, and cable services) and FTC (which regulates advertising and public relations), the government has historically used the notion of public interest to decide which radio stations to license, at what times questionable content can be broadcast, and so on. At times, however, media industries have made the conscious decision to regulate themselves in an effort to reduce the scope of government intervention. While the FCC still controls industry aspects like broadcast licensing, many media outlets have devised their own rules in relation to best practices or questionable content. Again, as with the first set of contingencies, the use of federal and industry‐based regulation varies with the social and political climate, but the presence of the dialectic always informs new regulatory policy.

Overall, the central tenets of consequences and contingencies provide a Pragmatic framework from which we can evaluate the regulation of American media. Regulation is directly tied to social and historical factors, but the American context also gives rise to the regular contingencies of free speech versus public interest and government versus industry self‐regulation. With all of these factors to consider, it should be clear that the process of deciding upon the best form of regulation is a difficult one. Government officials and industry representatives have to balance a number of different (and sometimes competing) issues in attempting to address social problems related to the media. The remainder of this chapter will focus on some of the more prevalent issues within the American media and examples of how different bodies have responded to them through regulation. As you read, pay special attention to the ways in which regular contingencies find expression in specific media policies.

Issues in the Regulation of American Media

The history of American media regulation is full of many compelling topics. This section focuses on six particular thematic areas that have rich and varied histories. We have grouped different regulations into these areas according to the practical ends or problems that they address. Additionally, each section is followed by a brief discussion in which we provide our own interpretation of the regulations in question. In this way, we hope to provide you with some initial ideas about how to respond critically to the regulation of media from a Pragmatic stance. The first three themes deal primarily with patterns of media ownership, and the latter three with media content. The six themes are: combating monopoly, protecting intellectual property, maintaining national interest, promoting diversity, managing morality, and ensuring accuracy.

Combating monopoly

Regulations designed to prevent media monopolies have focused historically on limiting the amount of a given market that any one company can own. These policies cover broadcasting, programming, and a number of other aspects of the industry. Regulations in this tradition often work toward the practical goal of ensuring that healthy competition remains a vital part of the American media landscape.

One of the clearest historical examples of anti‐monopoly regulation is the Financial Interest and Syndication Rules (often abbreviated to Fin‐Syn Rules). Television stations proliferated after the medium was introduced in the first half of the 20th century, but by the 1950s the major networks of ABC, NBC, and CBS came to dominate the airwaves. By enlisting many local stations throughout the country as broadcast affiliates, these networks had an unparalleled and far‐reaching influence on the American public. The FCC feared that they were gaining too much power over their remaining competitors, and instituted the Fin‐Syn Rules in 1970 to correct this trend. The primary purpose of these rules was to break up the perceived monopoly of the major networks by limiting their financial control over their programming.

Syndication, generally speaking, refers to the process of producing and selling programming. Networks can purchase programs from independent production companies or commission programs from network‐owned companies. Prior to Fin‐Syn, ABC, NBC, and CBS were all moving toward a vertically integrated syndication system where they produced and broadcast a great deal of their own programming. The newly enacted rules limited the amount of broadcast programming to which the major networks could hold financial rights. In combination with the Prime Time Access Rule, which reduced the amount of network‐produced programming the three could broadcast between 7 and 11 p.m., the Fin‐Syn Rules forced them to purchase syndicated programming from other, smaller production companies. In addition, the rules prohibited the networks from retaining financial rights to off‐network syndicated shows (original network programming rerun on non‐network stations).

With the rise of the Fox network and the growing popularity of cable throughout the 1980s, the three networks slowly began to lose their perceived stranglehold on the American media market. Subscribing to cable services and their diverse array of specialty channels was now a viable option for many Americans. The FCC responded to this shifting social trend by relaxing the Fin‐Syn Rules in 1993 to allow networks to hold the financial rights to half of their primetime broadcast line‐up, and abolishing them altogether in 1995. This understandably resulted in a system where the networks produced or co‐produced much of their primetime line‐ups.11 As a historical example of government regulation, the Fin‐Syn Rules represent an attempt to halt a network programming monopoly and promote the growth of independent stations and production companies as a source of media competition.

The repealing of the Fin‐Syn Rules was one example of a larger trend toward federal deregulation and increased media self‐regulation that characterized the 1980s and 1990s. The most salient example of this deregulation as it relates to media monopoly is the Telecommunications Act of 1996, much of which still governs policy today. The Act shifted existing regulations on ownership patterns in broadcast, telephone, and cable industries. Prior to 1996, for example, a business entity could own no more than seven television channels and 14 radio stations (seven each of AM and FM stations, and only one per market area at that). The new language in the Act abandoned this strict formula, and ownership rules now rely instead on relative audience reach. There is no specific limit on the number of television and radio stations that a single broadcaster may own, but ownership is restricted to no more than 39 percent of the national audience for television and varies according to local market size for radio. In addition, while the language of the original Act allowed companies to purchase and control multiple mediums in an unprecedented way, in 2017 the FCC moved to relax cross‐ownership rules even further, partially in response to the proliferation of online venues that had not existed in 1996.12

The deregulatory spirit of the Act may seem counter‐productive for a government hoping to combat media monopolies. Legislators at the time, however, believed that decreasing ownership barriers would in fact spur competition, increase content quality, and lower prices for consumers. The Act operated within the historical public‐interest paradigm because it “equated the public interest with a competitive economic environment … in which consumer and producer desires and needs can be matched efficiently in the marketplace, not structured by regulators.”13 The prevailing logic was that fewer restrictions on ownership result in more possibilities for more people, thereby increasing the potential for competition across all media markets. The Act safeguarded against monopoly by instilling a traditional economic system of supply and demand that encouraged the media to monitor itself. As we will see, this “free‐market” approach to the media is often used to justify acts of deregulation in the American context.

From a Pragmatic perspective, the Fin‐Syn Rules and the Telecommunications Act of 1996 invite a mixed judgment. Many critics of the 1996 Act agree that its free‐market logic failed to inspire competition. Contemporary media industries are marked by an increase of corporate mergers and conglomerations that resemble monopolies (see Chapter 2). However, the Act was a genuine attempt to respond to the economic and social climate of the 1990s with flexible formulae, and revisions continue to invoke this same logic. The Fin‐Syn Rules, on the other hand, did not clearly consider multiple contingencies (benefiting smaller production companies to the obvious detriment of the networks), but they did result in a diversity of programming options for the American public. These examples reveal that the Pragmatic evaluation of regulation is often not a clear process of sorting regulations into “good” and “bad” categories, but rather a nuanced assessment of the factors that inform the creation and effect of a regulation.

Protecting intellectual property

Regulations concerning intellectual property in media industries deal with legally protecting the creative work of artists. Policies and technologies in this area establish clear parameters regarding what work can be protected, how it should be protected, and any limits placed on that protection. In addition, these regulations stipulate the ways in which creative work can be legally disseminated and used in the media.

The most familiar form of intellectual property protection is copyright, or the granting of exclusive control of a creative work to that work’s creator. Though the practical purpose of copyright is to legally award a creator power over the use of his or her work, its theoretical purpose is to ensure that individuals will continue to generate innovative products. After all, if there were no way for creators to profit from their work, much less stop others from using their work toward financial interests other than their own, why would anyone choose to become a creator? This aspect of copyright is especially important to media industries because they are in the business of marketing and selling innovation. Without new blockbuster films or increasingly slick streaming technologies, the industry as a whole would cease to exist.

The duty for Congress to protect creative work is spelled out in Article 1 of the US Constitution, but early copyright laws could not adequately keep pace with regular changes in technology and the media. Congress passed the Copyright Law of 1978 in order to correct many of the perceived problems with these prior laws. As a result of the 1978 Law (and targeted updates since then), we now have a flexible system of copyright that is able to keep up with most forms of technological innovation. Contemporary copyright protection gives a work’s creator the exclusive control over the reproduction, dissemination, and sale of the work. A work retains this protection for the lifetime of its creator plus 70 years, or 95–120 years for anonymous works. Moreover, a work is protected the moment an author creates it in a physical medium like a computer or film strip. This means that authors enjoy the benefits of copyright protection even if they have not officially registered their work. Most importantly, copyright is limited in certain ways. Small portions of a work can be copied under the notion of fair use (in scholarly contexts, for example), and copyright can only cover the material expression of an idea, not the idea itself. You could not copyright your personal interpretation of the events surrounding the 2017 devastation of Puerto Rico by Hurricane Maria, for example, but you could copyright a particular essay or screenplay that expresses those views.

The legal system of copyright also stipulates rules regarding the distribution of creative works, and these systems have given rise to additional regulatory agencies within media industries. Because it would be virtually impossible for musicians to keep track of all of the producers who utilize their copyrighted songs in creative content, licensing companies like Broadcast Music Inc. (BMI) and Rumblefish manage the collection and distribution of these musicians’ royalty fees. Such companies also coordinate between musicians and streaming music services like Pandora. The Writer’s Guild of America and the Screen Actor’s Guild perform similar functions in the film industry, advocating for members’ rights to residual fees incurred through the use and distribution of motion pictures. Overall, these companies effectively implement copyright law and represent one of the various ways copyright is actually enforced in the media industries.

A more recent form of intellectual property protection closely related to copyright is industry‐based digital rights management (DRM): any number of different software programs that media industries employ to control the distribution and use of digital intellectual property. DRM attempts to duplicate for the online/digital world the types of protection granted by copyright and medium in the real world.14 Digital versions of intellectual property like music or movie computer files are by nature much easier to pirate than their real‐world counterparts (CDs and DVDs), so DRM represents an extra level of security attached to these digital versions. This security takes many forms. One of the most familiar to college students is probably the DRM embedded in e‐books on Amazon’s Kindle e‐reader. In this case, the software prevents an e‐book from being accessed on any device that is not directly linked to the purchaser’s Amazon account. In addition, in 2015, the company began releasing e‐books in a unique file format (KFX) that improved readability and user experience but made it even more difficult to access the books on devices other than the Kindle or without the Kindle app. All of these decisions make it harder to copy and disseminate e‐books in ways that would hurt sales (and, by extension, diminish authors’ royalty fees).

In theory, both copyright and DRM seem to represent attempts by the government and the industry to protect the intellectual property of individuals. However, critics of these systems claim that they actually protect private corporate interests. Some argue that the American system of copyright provides a good way to ensure people are paid for their creative work, but they point out that contemporary copyright law often goes beyond its original, historical intention to unnecessarily hamper creativity and protect businesses.15 Others claim that the rise of DRM signals a shift away from legal regulatory standards that historically work in the public interest to industry‐based technological guards that privilege the rights of owners over customers.16 Pragmatically speaking, both copyright and DRM work toward correcting issues related to information piracy, but both fall short of ably balancing issues of free speech and the public interest. While copyright at least attempts to preserve public interest through the doctrine of fair use, DRM is almost entirely economic in nature. Thus, they are both somewhat flawed forms of regulation, with DRM being the more significantly problematic of the two.

Maintaining national interest

Media regulations with the goal of maintaining national interest are concerned primarily with American domestic infrastructure and global image. Often apparent in times of war, these regulations ensure that media technology and practices do not compromise national security and the government’s ability to protect the public. Their association with issues of federal privilege and restricted information often makes them quite controversial.

A notable historical example of this type of regulation is the Escrowed Encryption Standard of 1994. Encryption is the process of scrambling important digital messages by software so only those who possess a complementary decoding program can read them. As encryption technology increased in complexity throughout the 1980s and 1990s, officials worried that such systems would hamper the government’s ability to intercept communications that undermined national security. The federal government had restricted the export of powerful encryption software to other countries according to the Export Administration Act, but these restrictions had grown increasingly lax since the end of the Cold War.17 As a result, the Clinton administration enacted the Escrowed Encryption Standard to provide the federal government with a way of gaining access to encrypted messages sent over telephone wires that it felt posed a national threat.

The Standard outlined a system where the government authorized certain companies to manufacture encryption chips (called Clippers) that could be installed in communications devices like fax machines and computers. An independent executive agency would collect the decoding keys, split them in half, and distribute them between two separate facilities. This was primarily a security measure, as any half key would be useless without accessing its complementary half in the other facility. The government could appeal to the agency for the two halves of the necessary decoding key only when it had reasonable cause to suspect that a message endangered national security. In many ways, the Escrowed Encryption Standard worked as a trade‐off. It offered the public access to powerful encryption software, but it also provided a back door for government officials to decode and read encrypted messages. It was also a way for them to strike a balance “between a person’s right to privacy and the government’s ability to monitor hostile foreign governments, terrorists and criminals.”18 However, lukewarm reception by technology industries and public backlash over privacy invasion forced the government to abandon the Standard only a few years after its inception.

A more recent example – and one that uncommonly involves industry self‐regulation – is Facebook’s reaction to the inadvertent exposure of its users to political propaganda during the 2016 US presidential election. In response to Congressional outrage over the company’s perceived lax privacy and advertising policies that allowed foreign entities to infiltrate the site with targeted, inflammatory content about candidates Hillary Clinton and Donald Trump, CEO Mark Zuckerberg rolled out a variety of sweeping structural changes that would be implemented moving forward. These included more rigorous account screening in order to distinguish authentic users from malicious political entities and increased fact checking of popular news stories that circulated through the site. The company also provided users with more powerful controls over how third‐party apps on the site collected and utilized their personal information, and it assured users that they would be more clearly notified should these apps misuse their data in the future. In November 2018, Facebook released a follow‐up report about the effects of some of these efforts, claiming (among other findings) that in the first 9 months of the year they had successfully flagged and disabled nearly 100 percent of fake accounts before any of the site’s users reported them.19

Evaluating the Escrowed Encryption Standard and Facebook’s attempts to combat propaganda from a Pragmatic perspective yields somewhat negative judgments. The Encryption Standard was a Pragmatic failure because it simply did not make much of an impact at all. It failed to gain public support because it neglected to adequately address the contingency of the American right to privacy. Likewise, while Facebook’s structural changes looked good on paper, critics quickly pointed out that similar commitments to user privacy that the company had made in 2011 to settle a dispute with the FTC did little to prevent the debacle in 2016.20 Mother Jones reported in April 2018 that biased organizations continued to use Facebook under the facade of legitimate journalism to influence the outcome of the Mexican presidential election.21 In short, Facebook genuinely attempted to respond to the socio‐political needs of the contemporary era, but there is at least some reason to doubt that its new regulations will have significant or lasting effect on ensuring the integrity of political elections in the years to come.

Promoting diversity

Regulations with the end goal of promoting diversity in media industries have attempted in some way to establish a sense of equality in media content. Because wealthy, privileged social groups usually have the most access to media outlets (and very often own them), these regulations are motivated by the desire to ensure that minority viewpoints and perspectives find a place on television and radio as well.

One of the clearest examples of this type of regulation is the Fairness Doctrine established in 1949. The Fairness Doctrine was an FCC policy that urged broadcasting stations to air programming on controversial issues and fairly represent both sides of the issues to viewers. Its supporters justified the Doctrine by claiming that it was in the public interest to hear both sides of a debate. This might sound like a good way to promote diversity, but most scholars agree that it actually decreased the amount of controversial material on air. Rather than give up precious airtime to both sides of a given issue, many television and radio stations simply avoided covering it altogether. Stations that did choose to cover difficult issues complained that the Doctrine violated their First Amendment rights by dictating parameters of coverage. The rule also tended to result in the impression that all perspectives on a given issue are equally good, something not always true in the real world. The FCC rescinded the policy in 1987 as a consequence of deregulation, but we still find glimmers of its underlying ideology today. When we see a news program invite both a supporter of evolution and a supporter of intelligent design to comment on the origin of humanity, we are looking at vestiges of the Fairness Doctrine. On the other hand, the rise of programming like Fox News and Democracy Now! that tends to communicate a single point of view, and especially the perceived impact of such programming on the 2016 presidential election, has led some to call for a reinstatement of the Doctrine.22

Another example of regulation intended to promote diversity is the equal‐time rule, which is still in place today. The rule clearly outlines how television and radio stations must handle the broadcast of political advertisements for primary or general elections. Stations cannot refuse airtime to paying political candidates, must charge candidates the lowest rate they would charge other advertisers, and must charge all candidates equally. If a station chooses to give free advertising to a particular candidate, it must offer all other candidates an equal amount of free time with a roughly equal audience size (which is determined by a number of factors, including time of broadcast and day of the week). As a whole, the equal‐time rule addresses a very narrow part of the industry, but at times it has led to some interesting situations within broadcast media. For example, after actor Arnold Schwarzenegger officially announced his candidacy during the 2003 race for the California governor’s office, broadcast television stations were prohibited from airing any of his films.23 If they did, they risked having to give time to the other 134 candidates equivalent to the film’s length.

Comparing the Fairness Doctrine and the equal‐time rule from a Pragmatic perspective yields judgments similar to the general, public perception of these regulations. The Fairness Doctrine had clear negative consequences in that it reduced the amount of controversial issues on air, and it trampled over the regular contingency of free speech by stipulating content. In this sense, the Doctrine was probably not one of the better examples of diversity regulation. The equal‐time rule, conversely, promotes diversity in a Pragmatically responsible way. The rule results in equal access to the media for all public candidates, and it is built upon contingencies (current rates for advertising, rules that only apply when a station gives away free advertising, etc.). Rather than enforcing a blanket understanding of diversity like the Fairness Doctrine, the equal‐time rule presents a flexible system of encouraging equality without specifying or restricting content.

Managing morality

Regulations concentrated on the management of morality in media content and programming are one of the more controversial areas in media industry law. Because one cannot truly “legislate” morality without endangering free speech, the types of regulations in this tradition often (1) offer general guidelines rather than definite understandings of issues related to morality and (2) restrict access and consumption of questionable texts rather than their production. The three key types of regulated media content are obscenity, profanity, and indecency.

Obscenity has been a historically difficult term to define, but most obscene media content is sexually explicit in nature. Obscene material is not protected by the freedom of speech. Though this standard has, on occasion, been applied to non‐broadcast material, it is overwhelmingly used in the evaluation of broadcast content. The 1973 court case Miller vs. California famously defined obscene content according to a three‐pronged test. Content is considered obscene when it meets all of the following standards:

  1. the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interest;
  2. the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and
  3. the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The regulation of obscene content is straightforward: it is illegal. However, images or words are not obscene until someone challenges them as such in a court of law. In this way, the legal definition of obscenity acts as an informal regulation by shaping the decisions made about content so that it cannot be declared obscene. Remember, if the content does not meet all three of the Miller definitions, then it is not obscene.

Profanity is often equated with comedian George Carlin’s act about the seven “filthy” words banned from public broadcast: shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Though speech outside of these seven words can be considered profane, the seven have become the standard for FCC regulation. Generally, the regulation of profanity falls under the greater regulation of indecency. Indecency refers to any material that is morally unfit for general distribution/broadcast, often depicting or referencing sexual and excremental activities. Unlike obscenity, indecent content is not illegal, but it is regulated in a number of ways. For example, radio and television networks may broadcast indecent programming only between the “safe harbor” hours of 10 p.m. and 6 a.m., when it is unlikely that any children are watching/listening (premium cable channels and paid streaming services like Netflix and Hulu are, of course, exempt from this rule). Mainstream media outlets that do not observe these rules are subject to FCC fines, loss of broadcasting license, and more. In 2015, for instance, the FCC levied a hefty $325 000 fine against a local Virginia television station for accidentally broadcasting a few seconds of a sexually explicit video during a story about a local adult film star on the 6 p.m. news.24

The management of indecent content is a historically important area of industry self‐regulation, as well. One of the earliest forms of industry‐based content restriction is the Hollywood production code of the 1930s, which was primarily “written by a Jesuit priest and a Catholic layman.”25 It outlined what could and could not be depicted in Hollywood films, and movies that ignored these restrictions could not earn the approval of the Motion Picture Producers and Distributors Association necessary for widespread distribution. Along with the eradication of images of violence and sex, the production code also prohibited depictions of homosexuality, interracial relationships, and the benefits of illegal activity in films. While prudish and discriminatory by today’s standards, the code was an attempt by Hollywood to halt what it perceived to be invasive federal intervention in the movie industry. If industry officials could prove to the government that they could sufficiently regulate themselves, then the government would have less of a presence in the business overall. This, to many filmmakers, was an attractive trade‐off.

Industry‐based standards like the production code are still the primary form of moral regulation in Hollywood today, with a few significant changes. Most notably, the burden of managing indecent or questionable material has transferred from filmmakers to audiences. Access to indecent or violent content is now based on audience age, a decision that recalls the “safe harbor” rule. Instead of maintaining a production code that severely censors the content of films, the Motion Picture Association of America has developed a ratings system (G, PG, PG‐13, R, NC‐17) that restricts viewers from seeing them. The ratings system maintains freedom of speech for filmmakers while simultaneously enforcing content standards. The television, music, and video game industries have all followed suit in the last few decades by developing their own ratings systems in relation to questionable content (see Table 4.1 for a breakdown of television ratings). In theory, young children cannot purchase tickets to R‐rated films, CDs stamped with a “Parental Advisory” notice, or video games marked T (for Teen) or M (for Mature). However, according to an FTC study on media violence released in December 2009, media industries often market these products to minors, and young people routinely have access to them.26 Additionally, a 2016 study in the journal Pediatrics suggests that many programs rated TV‐14 feature higher levels of substance use and violence than one might expect.27 Studies like these question the effectiveness of industry‐based media regulation related to indecent or violent content.

Table 4.1 Breakdown of television ratings in the United States

Rating (V) Violence (L) Language (S) Sexual situations Example
TV‐Y *** *** *** Sesame Street
TV‐Y7 Mild Mild *** Voltron
TV‐G *** *** *** Jeopardy!
TV‐PG Moderate Mild Mild NCIS
TV‐14 Strong Moderate Moderate Supernatural
TV‐MA Extreme Strong Strong Westworld

***means none.

From a Pragmatic perspective, the regulation of morality through obscenity, profanity, and indecency is more contingent on socio‐historical factors than almost any other form of regulation. However, we can make some initial judgments based on our discussion thus far. The federal regulations of obscenity and indecency are both largely effective because they yield practical results in relation to questionable content while balancing factors like social norms, free speech, and public interest. The general definition of obscenity importantly hinges on whether or not the particular community in which the content is consumed would find it objectionable, which often binds particular definitions of obscenity to specific geographical locations in the United States. The regulation reduces obscene content overall without applying a blanket standard. Similarly, the restriction of indecent material to particular hours of broadcast limits access to questionable material in the public interest while maintaining notions of free speech. In the end, these regulations are very much in line with the Pragmatic tenets of consequences and contingencies because they control the access of audiences to questionable material while remaining relatively open to contextual, cultural factors.

We cannot say the same for the systems of media self‐regulation discussed here. The production code of the 1930s was a negative form of regulation because it was not sensitive to the varied social and historical factors of the time. Instead of attempting to balance multiple perspectives, the code imposed a very narrow and somewhat religious conception of morality on filmmakers. In a Pragmatic sense, the code appealed to a constant and predetermined definition of morality rather than a flexible, contingent one, and this definition supported notions of the public interest while greatly restricting free speech. Current ratings standards, on the other hand, champion free speech but do not significantly halt minors’ access to indecent and violent material. In Pragmatic terminology, these ratings systems are problematic forms of regulation because they do not practically address the social problems they are intended to solve. Only with increased enforcement might ratings systems actually result in effective regulatory consequences.

Ensuring accuracy

Regulations aimed at ensuring accuracy primarily deal with the news broadcast and print industries. Equally balanced between government‐ and industry‐based standards, these regulations attempt to prevent the dissemination of false (and possibly damaging) information and provide systems of legal correction if such information does become public. In short, these regulations concentrate on ensuring that journalists and news reporters use media forums to responsibly report the truth to the American public.

The two most important forms of government regulation aimed at ensuring accuracy are the twin legal concepts of slander and libel. Slander refers to publicly spoken, untrue, and defamatory statements, while libel refers to false printed statements that similarly damage a person’s character. Neither is protected under the freedom of speech. While the line between slander and libel was originally very easily understood, the rise of broadcast media has blurred it significantly. After all, news broadcasting relies primarily on the spoken word, but the preparation of news for broadcast resembles the same procedures as are used in print media. Slander and libel laws together force reporters and broadcasters to double check their stories for accuracy. Legal definitions of slander and libel are like definitions of obscenity in that they regulate primarily by guiding the informal decisions made about news content: industry workers avoid disseminating content that is slanderous or libelous. These laws, however, also provide a means of legal recourse for defamed individuals who are the victim of slander or libel. If a media outlet is found guilty of slander or libel in a court of law, it often must pay hefty sums in monetary compensation.

Though slander and libel laws represent a significant factor that journalists and newscasters must consider in reporting, there are defenses against them. The most important of these is truth. If a statement is true, no matter how damaging it is to the character of an individual, then it is not subject to slander or libel laws. Similarly, the media is allowed to remark on public figures and their actions under the doctrine of fair comment. Because the press is often responsible for acting as a check to governmental powers, it has the right to report and editorialize on aspects of a public figure that may be defamatory as a result. This notion of fair comment also covers the news media’s right to judge and critique the products of public institutions (like restaurants) without committing libel.

Even with fairly clear definitions and defenses against slander and libel, those within the media industry still find themselves in other binds related to accuracy. Should a journalist publish crucial material if the source of that material wishes to remain anonymous? How soon after a terrible accident should a reporter attempt to interview a victim’s family? There are no clear or definite answers to these kinds of questions, which have thus given rise to industry‐based codes of ethics. A code of ethics is a self‐imposed set of rules that outlines the ethical strivings of a particular media outlet (goals that typically revolve around notions of truth and fairness), and it often stipulates the particular ways that those within the organization should handle conflicts of interest, ethical dilemmas, and other problem areas. By adhering to a code of ethics, news media outlets ensure that they consistently address issues accurately and fairly for the parties involved.

Within a Pragmatic lens, regulations directed toward ensuring accuracy in the media are relatively effective. Slander and libel laws halt potential abuse of the individual and help to contain the power of the media in shaping public perception. The heavy penalties that result from slander and libel legal cases push media outlets to remain ever vigilant about the facts that they report. While there has been some slippage between the terms as a result of technological development, the laws still strike a nice balance between maintaining freedom of the press and protecting the public. Similarly, codes of ethics provide reporters and broadcasters with general guidelines for resolving specific issues particular to the news industry. Because it is ultimately the individual who makes the call after consulting the code, these rules are practical without being rigid. Sometimes, these codes fail to provide good answers, just as media outlets occasionally commit libel or slander, but in general they give flexible structure to the ways in which the industry approaches notions of truth and accuracy.

Violence in the Media: A Closer Look at Pragmatic Regulation

Many of the regulations we have discussed thus far do not occupy a significant place in the public consciousness. Issues like syndication rights, political advertisements, and libel laws often fail to attract the attention of the typical American media consumer. The same cannot be said for violence. In fact, one would be hard pressed to point to a media issue that garners more public concern than violence in film, television, music, and video games. Because the perceived effects of media violence (especially on children) are so great, concerned parents, special‐interest groups, and politicians often respond with extreme, reactionary proposals that border on outright censorship. Soon‐to‐be Republican presidential nominee Bob Dole, for instance, made headlines in 1995 when (on a campaign stop in Los Angeles) he condemned the entertainment industry for cultivating moral depravity, deviancy, and cultural contamination. In this section, we advocate a more measured approach that attempts to balance the complex interplay of contingencies and consequences related to media violence. In doing so, we hope to illustrate that a Pragmatic perspective is uniquely suited for discussing and appraising media regulations, be they government‐ or industry‐based.

Violence in the media is often treated in a unified, monolithic way. But representations of violence vary greatly in both form and function, and it is vital that the Pragmatist distinguish among the different forms of media violence. A useful starting point in this regard is Henry A. Giroux’s differentiation between reflective, gory, and stylized violence.28 According to Giroux, reflective or historical violence “probes the complex contradictions that shape human agency, the limits of rationality, and the existential issues that tie us to other human beings and the broader social world.”29 This type of violence typically accompanies the portrayal of actual historical events and can be seen in films such as Platoon (1986), Schindler’s List (1993), and Selma (2014). The visual and narrative framing of historical violence invites audiences to contemplate the horrors of war or the historical atrocities perpetrated against particular social groups; it encourages audiences to think critically about the way violence is connected to hatred and social injustice. Historical violence, then, can be said to heighten social consciousness by imparting larger philosophical messages about humanity and its struggles.

Whereas historical violence engenders thoughtful reflection, gore or ritualistic violence generates mostly emotional excitement because, in Giroux’s words, it is “pure spectacle in form and superficial in content.”30 Depictions of ritualistic violence are typically fast‐paced, adrenaline‐pumping, sensationalistic, and hyper‐masculine. This form of violence is common to both the horror (slasher) and the action genres, and it is exemplified in films like First Blood (1982), Blade (1998), and the Avengers series (2012, 2015, 2018, 2019). Rather than imparting social messages, ritualistic violence serves primarily to stimulate and entertain. Consequently, audiences tend to respond to ritualistic violence on a visceral level rather than a rational one. Anyone who has screamed during a gruesome horror scene or clutched his or her seat while viewing an explosive action sequence can attest to the capacity of ritualistic violence to move us at a bodily level.

Giroux’s third category of media violence, stylized or hyper‐real violence, is the most challenging to define. The difficulty arises, at least in part, because it blurs the boundaries between historical and ritualistic violence. To borrow a phrase from the Police song, “Murder by Numbers,” hyper‐real violence turns “murder into art.”31 Elaborating on the character of hyper‐real violence, Giroux explains that it is “marked by technological over‐stimulation, gritty dialogue, dramatic storytelling, parody, and an appeal to gutsy realism.”32 Like historical violence, hyper‐real violence is extremely realistic and believable. But like ritualistic violence, it is visceral and entertaining (not to mention graphic and shocking). Put another way, hyper‐real violence combines the look of historical violence with the feel of ritualistic violence. A few films that typify this form of media violence include Reservoir Dogs (1992), Sin City (2005), and The Purge (2013). Since hyper‐real violence lacks the reflective dimension of historical violence, it is unlikely to induce audiences to think critically.

Though not every instance of violence in the media fits neatly into one of Giroux’s three categories, his typology nevertheless offers a helpful way to begin sorting through the diverse effects of media violence. Research suggests these come in four primary types: aggressor, victim, bystander, and catharsis effects. Before discussing these, however, we wish to stress that the relations between media violence and audience actions are complex and indirect, not simple and causal. Moreover, social‐environmental factors such as family and viewing contexts, as well as individual characteristics like gender, age, and academic achievement, have been shown to influence and mitigate the effects of media violence.33

Perhaps the most studied consequence of media violence is the aggressor effect, which suggests that exposure to media violence triggers arousal and promotes hostile behavior. Accounts of this effect typically involve one of three theories: disinhibition, enculturation, or imitation. The theory of disinhibition posits that the consumption of media violence undermines the social norms and sanctions against violence that individuals would otherwise abide by. Conversely, enculturation theory speculates that long‐term exposure to media violence actually constructs violence as the norm and thereby encourages aggressive behavior through social scripts. In other words, violence begets violence by suggesting it is an appropriate and acceptable response to certain life situations. Finally, the theory of imitation maintains that some audiences (most often young viewers who do not fully understand violent displays) will mimic the aggressive behavior they observe in media. Despite decades of study, however, findings related to the aggressor effect are, at best, inconsistent.34 Part of the problem may be that much of the research does not distinguish among different forms of media violence, which is an important contingency. Imitation, for instance, seems most probable when children consume ritualistic violence, as it is often enacted by a (super)hero and thus positively coded. Meanwhile, disinhibition and enculturation are more likely to result from hyper‐real violence, which is morally ambiguous.

Research also suggests that media violence can produce a victim effect, in which people develop and experience a heightened fearfulness of violence. The victim effect finds much support in George Gerbner’s empirical work on television and media cultivation.35 Gerbner argues that individuals who consume heavy amounts of television undergo a process of mainstreaming in which they begin to view mediated images as accurate representations of reality. In this theory, repeated exposure to media violence leads to an exaggerated sense of danger or mistrust about the world. Regular viewers of crime dramas like Law and Order, CSI, and Criminal Minds, for example, may develop an unrealistic perception of crime in the United States and subsequently an irrational fear of being the victim of crime themselves. In short, heavy viewing of media violence leads people to see themselves as likely victims in a cruel and scary world. Unlike the aggressor effect, which appears to be connected to specific forms of media violence, the victim effect is probably a consequence of the sum of all violent images circulating in society.

A third major strain of research into media violence concerns the bystander effect, which holds that media violence fosters increased callousness about or insensitivity toward violence directed at others. The bystander effect is rooted in the theory of desensitization, or the idea that repeated viewing of media violence leads to a reduction in emotional responses to violence and thus an increased acceptance of violence in real life. The basic premise of the bystander effect is that we consume so much violence in the media that we no longer regard it as shocking or abhorrent when we witness it in real life; we are essentially unfazed by it. The potential danger of desensitization and the bystander effect is that people “are less likely to intervene when they witness aggression [and] less likely to take action to prevent aggression” in their everyday lives.36 Since historical violence promotes social consciousness and ritualistic violence is perceived by most viewers as unrealistic, the bystander effect is almost certainly associated most closely with hyper‐real violence.

Finally, some research indicates that media violence can actually have a catharsis effect, meaning that it can reduce and alleviate feelings of aggression. Unlike the three previous effects, the catharsis effect is regarded as a pro‐social outcome, as it leads to a reduction in real‐world violence. Most research on the catharsis effect concerns the way that consuming media violence relieves individuals of their own violent urges by allowing them to live vicariously through the actors on screen, but we would like to suggest that catharsis need not be limited to vicarious release. If catharsis is understood in the more general sense of renewal, then it might help to explain how audiences generally respond to historical violence. In contrast to hyper‐real violence, which may result in increased aggression, historical violence is likely to reduce aggressive feelings and tendencies by inviting audiences to reflect on the negative social consequences of violence.

What this overview implies is that any attempt to regulate media violence must carefully balance its possible consequences (aggressor, victim, bystander, and catharsis effects) with relevant contingencies (various forms of mediated violence, such as historical, ritualistic, and hyper‐real). Unfortunately, this balance has not played a very significant role in many previous attempts to address the issue. Different forms of mediated violence are likely to lead to different effects, but industry and government officials alike have historically tended to treat all instances of media violence as identical when making regulatory decisions. Significant problems surrounding the modern television ratings system and v‐chip technology provide a clear example of this tendency.

The US government has largely taken a “hands‐off” approach when it comes to regulating violence on television. Not wanting to break with that tradition or curtail freedom of speech, but facing mounting pressure from lobbyist groups, Congress signaled its desire for the television industry to develop industry‐based ratings standards in 1990,37 and it later enforced the adoption of these standards with the Telecommunications Act of 1996. The implementation of a television ratings system was designed to help parents identify what programming was appropriate for their children. In connection with v‐chip technology, which allowed select programs to be blocked on individual television sets based on these industry ratings, the system promised to protect children from inappropriate content. In 1999, the FCC required all manufacturers to begin including v‐chip technology in US televisions, but by 2001 only 7 percent of parents in the country were actually using the chip to screen content for their children.38 The technology made little impact in the following years. A 2007 survey by the Kaiser Family Foundation, for example, found that only 16 percent of parents had used the v‐chip, while 57 percent did not even know they had one pre‐installed in their home television.39

One problem with the newly instituted television ratings system and subsequent v‐chip technology was that it could not distinguish between historical violence, which might serve educational purposes, and ritualistic and hyper‐real violence, which offered little more than shock and titillation. Television ratings typically index the amount of violence in a program more than the type of violence featured, which means that v‐chip technology screens out many potentially pro‐social effects of violent depictions – like learning, reflection, and catharsis – along with detrimental ones. In Pragmatic terms, the regulatory logic behind the v‐chip was universal (“All televised violence is bad for children”) rather than contingent, inspiring a technology ill‐suited to the complexity of its object. In fact, the chip was so badly received that in 2007 the FCC actually urged Congress to allow it to begin regulating violence in the same way that it regulates indecent content.40 Nothing significantly changed as a result of this urging, however, and the FCC still does not have the power to regulate violent content today, which suggests that the issue remains open for future, perhaps more thoughtful regulatory measures.

Conclusion

In this chapter, we have looked at many different media regulations from a Pragmatic perspective, which have taken a number of different forms: laws, policies, standards, technologies, and so on. While some of these regulations have been clearly beneficial or disastrous, many more fall somewhere in between. The relatively ambiguous nature of most media regulation is indicative of the many factors that legislators and industry representatives must take into account when trying to craft effective guidelines. On top of social and technological issues related to the historical moment, these individuals must also pay special attention to issues of free speech, the public interest, and the ratio between federal and industry‐based regulation. The philosophy of Pragmatism helps us bring some order to these various issues, and it provides a solid foundation for evaluating resulting regulations. In addition, the special emphasis that Pragmatism places on contingencies helps us deconstruct the various factors that inform some of the most pressing regulatory issues facing us today, such as violence. The regulation of the media is as old as the media itself, but a Pragmatic approach is a relatively new way of understanding the relationship between the two. It helps us clarify one aspect of the historically varied and sometimes confusing terrain of American media.

SUGGESTED READING

  1. Bandura, A., Ross, D., and Ross, S.A. Transmission of Aggression through Imitation of Aggressive Models. Journal of Abnormal and Social Psychology 1961, 63, 575–82.
  2. Barker, M. and Petley, J. (eds.) Ill Effects: The Media Violence Debate, 2nd edn. New York: Routledge, 2001.
  3. Blevins, J.L. The Political Economy of US Broadcast Ownership Regulation and Free Speech after the Telecommunications Act of 1996. Democratic Communique 2007, 21, 1–22.
  4. Clogston, J. The Repeal of the Fairness Doctrine and the Irony of Talk Radio: A Story of Political Entrepreneurship, Risk, and Cover. Journal of Policy History 2016, 28, 375–96.
  5. Creech, K.C. Electronic Media Law and Regulation, 6th edn. New York: Routledge, 2013.
  6. Danisch, R. Pragmatism, Democracy, and the Necessity of Rhetoric. Columbia, SC: University of South Carolina Press, 2007.
  7. Diffie, W. and Landau, S. Privacy on the Line: The Politics of Wiretapping and Encryption. Cambridge, MA: MIT Press, 2007.
  8. Fenton, N. Deregulation or Democracy? New Media, News, Neoliberalism and the Public Interest. Continuum: Journal of Media & Cultural Studies, 2011, 25, 63–72.
  9. Forelle, M.C. The FCC and the Problem of Diversity. International Journal of Communication 2015, 9, 3432–9.
  10. Fu, H. The Impact of the Telecommunications Act of 1996 in the Broadband Age. Journal of Current Issues in Media & Telecommunications 2010, 2, 119–37.
  11. Gillespie, T. Wired Shut: Copyright and the Shape of Digital Culture. Cambridge, MA: MIT Press, 2007.
  12. Helprin, M. Digital Barbarism: A Writer’s Manifesto. New York: Harper Collins, 2009.
  13. Holt, J. Empires of Entertainment: Media Industries and the Politics of Deregulation, 1980–1996. Piscataway, NJ: Rutgers University Press, 2011.
  14. Jordan, A.B. Children’s Media Policy. Future of Children 2008, 18, 235–53.
  15. Leone, R. and Houle, N. 21st Century Ratings Creep: PG‐13 and R. Communication Research Reports 2006, 23, 53–61.
  16. Lessig, L. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: The Penguin Press, 2004.
  17. McBride, K. and Rosenstiel, T. The New Ethics of Journalism: Principles for the 21st Century. Thousand Oaks, CA: Sage, 2014.
  18. McDonald, P. Hollywood, the MPAA, and the Formation of Anti‐Piracy Policy. International Journal of Cultural Policy 2016, 22, 686–705.
  19. Price, M.E., Verhulst, S.G., and Morgan, L. (eds.) The Routledge Handbook of Media Law. New York: Routledge, 2015.
  20. Rorty, R. Pragmatism, Relativism, and Irrationalism. In Consequences of Pragmatism (Essays: 1972–1980), pp. 160–75. Minneapolis, MN: University of Minnesota Press, 1982.
  21. Ruane, K.A. Regulation of Broadcast Indecency: Background and Legal Analysis. Journal of Current Issues in Media & Telecommunications 2012, 4, 147–76.
  22. Russill, C. Through a Public Darkly: Reconstructing Pragmatist Perspectives in Communication Theory. Communication Theory 2008, 18, 478–504.
  23. Samoriski, J.H., Huffman, J.L., and Trauth, D.M. The V‐Chip and Cybercops: Technology vs. Regulation. Communication Law & Policy 1997, 2, 143–64.
  24. Tan, C. Regulating Content on Social Media. London: UCL Press, 2018.
  25. West, C. The American Evasion of Philosophy. Madison, WI: University of Wisconsin Press, 1989.

NOTES

  1. 1 The FCC’s full 2015 report can be found at http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0312/FCC‐15‐24A1.pdf (accessed May 14, 2018).
  2. 2 FCC Acts to Restore Internet Freedom, Federal Communications Commission, December 14, 2017, https://apps.fcc.gov/edocs_public/attachmatch/DOC‐348261A1.pdf (accessed May 14, 2018).
  3. 3 W. James, Habit: Its Importance for Psychology, in The Writings of William James: A Comprehensive Edition, J.J. McDermott (ed.) (Chicago: University of Chicago Press, 1977), 9.
  4. 4 W. James, Pragmatism and the Meaning of Truth (Cambridge, MA: Boston University Press: 1978), 30.
  5. 5 J. Dewey, Experience and Nature (Mineola, NY: Dover, 1958), 280–1.
  6. 6 J. Dewey, Reconstruction in Philosophy, in The Middle Works of John Dewey, Volume 12, 1899–1924: 1920, Reconstruction in Philosophy and Essays, J.A. Boydston (ed.) (Carbondale, IL: Southern Illinois University Press, 1988), 181–2.
  7. 7 R. Rorty, Pragmatism, Relativism, and Irrationalism, in Consequences of Pragmatism (Essays: 1972–1980) (Minneapolis, MN: University of Minnesota Press, 1982), 164.
  8. 8 R. Rorty, Private Irony and Liberal Hope, in Contingency, Irony, Solidarity (New York: Cambridge University Press, 1989), 80.
  9. 9 Rorty, Pragmatism, 168.
  10. 10 S.J. Baran and D.K. Davis, Mass Communication Theory: Foundations, Ferment, and Future, 2nd edn (Belmont, CA: Wadsworth Publishing, 1999), 97.
  11. 11 R.E. Caves, Switching Channels: Organization and Change in TV Broadcasting (Cambridge, MA: Harvard University Press, 2005).
  12. 12 FCC Broadcast Ownership Rules, Federal Communications Commission, https://www.fcc.gov/ consumers/guides/fccs‐review‐broadcast‐ownership‐rules (accessed May 22, 2018). The 2017 changes to cross‐ownership rules can be found in Order FFC 17‐156, which is accessible on the same page.
  13. 13 P. Aufderheide, Communications Policy and the Public Interest: The Telecommunications Act of 1996 (New York: The Guilford Press, 1999), 61.
  14. 14 B. Rosenblatt, B. Trippe, and S. Mooney, Digital Rights Management: Business and Technology (New York: M&T Books, 2002).
  15. 15 L. Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (New York: The Penguin Press, 2004).
  16. 16 T. Gillespie, Wired Shut: Copyright and the Shape of Digital Culture (Cambridge, MA: MIT Press, 2007).
  17. 17 W. Diffie and S. Landau, Privacy on the Line: The Politics of Wiretapping and Encryption (Cambridge, MA: MIT Press, 2007).
  18. 18 D. Abrahms, Lawmakers Seek to Ensure Electronic Privacy, The Washington Times, March 5, 1996, final edn, B6.
  19. 19 For an overview of the promised changes, see How is Facebook Working to Keep its Community Safe?, https://www.facebook.com/help/208040513126776?ref=heretogether (accessed November 25, 2018). For the November 2018 follow‐up, see Community Standards Enforcement Report, https://transparency.facebook.com/community‐standards‐enforcement (accessed November 25, 2018).
  20. 20 N. Tiku, Why Facebook’s 2011 Promises Haven’t Protected Users, Wired, April 22, 2018, https://www.wired.com/story/why‐facebooks‐2011‐promises‐havent‐protected‐users/ (accessed May 22, 2018).
  21. 21 N. Lanard and A.J. Vicens, Facebook is Still the Perfect Propaganda Platform. These Sketchy Mexican Pages Show Why, Mother Jones, April 9, 2018, https://www.motherjones.com/politics/2018/04/ facebook‐is‐still‐the‐perfect‐propaganda‐platform‐these‐sketchy‐mexican‐pages‐show‐why/ (accessed November 25, 2018).
  22. 22 S. Almond, Want to Stop Fake News? Reinstate the Fairness Doctrine, Boston Globe, April 17, 2018, https://www.bostonglobe.com/opinion/2018./04/17/want‐stop‐fake‐news‐reinstate‐fairness‐doctrine/BpMw4D3s9qLrDwA2geLywN/story.html (accessed November 25, 2018).
  23. 23 S. Zeidler, Arnold’s Films Sidelined During Governor’s Bid: Considered TV Air Time: “It May Beg a Competitor to File a Complaint,” National Post (Canada), August 14, 2003, national edn, A15.
  24. 24 R. Berrier Jr., WDBJ Facing $325 K Penalty, The Roanoke Times, March 24, 2015, A1.
  25. 25 H.M. Benshoff and S. Griffin, America on Film: Representing Race, Class, Gender and Sexuality at the Movies (Oxford: Blackwell, 2004), 39.
  26. 26 Marketing Violent Entertainment to Children: A Sixth Follow‐Up Review of Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries, Federal Trade Commission, https://www.ftc.gov/sites/default/files/documents/reports/marketing‐violent‐entertainment‐children‐sixth‐follow‐review‐industry‐practices‐motion‐picture‐music/p994511violententertainment.pdf (accessed May 23, 2018).
  27. 27 J. Gabrielli, A. Traore, M. Stoolmiller, E. Bergamini, and J.D. Sargent, Industry Television Ratings for Violence, Sex, and Substance Abuse, Pediatrics 2016, 138, e20160487.
  28. 28 H.A. Giroux, Racism and the Aesthetic of HyperReal, in Fugitive Cultures: Race, Violence and Youth (New York: Routledge, 1996), 55–88.
  29. 29 Giroux, 63.
  30. 30 Giroux, 61.
  31. 31 Sting and A. Summers, “Murder By Numbers,” Synchronicity, A&M (CD release date October 25, 1990).
  32. 32 Giroux, 64.
  33. 33 E.F. Dubow and L.S. Miller, Television Violence Viewing and Aggressive Behavior, in Tuning in to Young Viewers: Social Perspectives on Television, T.M. MacBeth (ed.) (Thousand Oaks, CA: Sage Publishing, 1996), 117–47.
  34. 34 J. Staiger, Media Reception Studies (New York: New York University Press, 2005), 167.
  35. 35 G. Gerbner, Cultivation Analysis: An Overview, Mass Communication and Society 1998, 1 (3/4), 175–94.
  36. 36 J.L. Freedman, Media Violence and its Effect on Aggression: Assessing the Scientific Evidence (Toronto: University of Toronto Press, 2002), 177.
  37. 37 D.E. Newton, Violence and the Media: A Reference Handbook (Denver, CO: ABC‐CLIO, 1996).
  38. 38 J. Rutenburg, Survey Shows Few Parents Use TV V‐Chip to Limit Children’s Viewing, New York Times, July 25, 2001, late edn, E1.
  39. 39 V. Rideout, Parents, Children & Media, Kaiser Family Foundation, http://www.kff.org/entmedia/upload/7638.pdf (accessed March 4, 2013).
  40. 40 S. Labaton, F.C.C. Moves to Restrict TV Violence, New York Times, April 26, 2007, late edn, C1.
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