In 1975, the television networks opened the fall season with an unusual premiere: the family viewing hour. This short-lived policy, which restricted the programming content of television during the early evening hours, was adopted, in part, as a response to increasing public concern about the effects of televised violence on children. A more important influence, however, was the interest of another audience-the federal government.
The family viewing policy, established by an amendment to the NationalAssociation of Broadcasters Television Code, provided for the regulation of television programming according to the following standard:
Entertainment programming inappropriate for viewing by a general family audience should not be broadcast during the first hour of network entertainment programming in prime time and in the immediately preceding hour. In the occasional case when an entertainment program in this time period is deemed to be inappropriate for such an audience, advisories should be used to alert viewers. Advisories should also be used when programs in later time periods contain material that might be disturbing to significant segments of the audience.
The validity of the adoption of the family viewing policy was immediately challenged in Writers Guild of America, West, Inc. v. Federal Communications Commission, a consolidation of two actions against the Federal Communications Commission (FCC), the networks, and the National Association ofBroadcasters (NAB). The first action, brought by the Writers Guild of America, West, Inc. and other television writers, creators, and producers, challenged the family viewing policy on the grounds that it violated the first amendment, the Federal Communications Act of 1934, the Administrative Procedure Act, and the Sherman Antitrust Act. The second suit, brought by Tandem Productions, Inc. differed in that it did not include an Administrative Procedure allegation and it sought to recover damages.
Judicial review of the implementation of this new policy was quick and sharply critical. In Writers Guild, the adoption of the family viewing policy was held to be an unlawful restraint on free speech in violation of the first amendment because it was implemented as a result of government pressure exerted through the FCC and not as an independent decision reached by individual licensees.
This Note will examine the factors which created the need for such programming regulation, evaluate the constitutional impediments to such regulation, and propose a model for the future.
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