March 23, 2009
The Honorable Jon M. Huntsman, Jr.
State Capitol Complex
PO Box 142220
Salt Lake City, Utah 84114-2220
Re: House Bill 353
Dear Governor Huntsman:
Last week, the Utah Legislature overwhelmingly approved House Bill 353, the “Truth in Advertising” amendments in yet another effort to legally enforce the private voluntary rating schemes used by industry to inform consumers about the contents of movies, video games, and music. We strongly oppose it and urge you to veto it.
The bill would make it a deceptive trade practice if a retailer “advertises” that it will not sell or provide a product labeled with an age restriction or recommendation (such as the advisories on DVDs, video game, and CDs) to anyone under the age specified and then in fact sells it to someone under that age. The retailer/provider would be liable for penalties up to $2000, plus attorneys fees, for each violation.
The bill poses both constitutional and practical problems. First, it attempts to do indirectly what the government cannot do directly – restrict minors’ access to legal materials. The bill takes a voluntary effort by manufacturers to provide consumers with information about their products and turns it into a mechanism to deprive minors of their First Amendment rights. The materials that the legislation presumably targets – films, video games, and CDs – are fully protected by the First Amendment. Moreover, as numerous courts have held in response to efforts to regulate violent video games, it is not illegal for minors to purchase, own or view them. See, e.g. Video Software Dealers Ass’n v. Schwarzenegger (9th Cir., 2/20/09) (No. 07-16620) and Entertainment Software Ass’n v. Swanson, 519 F.3d 768 (8th Cir. 2008).
The language of the statute is of particular concern because of its potentially sweeping reach. For example, many books contain an “age…recommendation.” Would booksellers be subject to penalties if they advertise that a book is recommended for readers aged 9 – 12, but sell it to an 8 year old? The same question arises in the context of libraries, where books and videos are often advertised and shelved based on publishers’ age recommendations and MPAA ratings, in the case of videos. If the library displays a poster about a film in its collection noting that it is rated PG 13, would that constitute “advertising” an age recommendation? If so, would the library violate the law by allowing a 12 year old to borrow it? While these examples may appear far-fetched and this may not be what the legislature had in mind, the law is sufficiently unclear to raise concerns. Besides, all that would be needed to strike fear into the heart of every librarian and bookseller in the state is for one case to be filed by one parent angry that his 10 year old daughter bought a copy of Changing Bodies, Changing Lives: A Book for Teens on Sex and Relationships or Judy Blume’s young adult novel, Forever, or that his 10 year old son borrowed a copy of The Bourne Identity from the library.
As these examples make clear, advisory labels and ratings are just that – advisory. They are not intended as bright line limits on who can have access to certain materials, and they are certainly not intended as tools for law enforcement. Rather, they are designed to provide information to consumers about content so that they can make their own choices based on their own interests and values. Consider labels warning about sexual or violent content or offensive language. Some parents object to sexual content but not violence; others object to violence but not sex; and some do not object to either and might prefer labeling that informed them about the literary or artistic value of the item.
However, the legislation assumes that no minor should be able to obtain these items regardless of his or her parent’s views, and thus imposes one viewpoint and one value judgment on all. This is precisely what the First Amendment was designed to prevent. As the Supreme Court has repeatedly observed, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion …”
As a practical matter, the bill may result in consumers getting less information. Stores not willing to risk lawsuits or fines may simply decide to exclude ratings information from their advertisements and packages. Industry groups might even consider dispensing with its voluntary rating system if the result is to make retailers vulnerable to lawsuits and judgments. After all, private rating systems such as the ones used to label movies, music and video games, are not required by law, and any attempt by the state or federal government to require ratings would undoubtedly be unconstitutional.
As a final matter, to the extent that the bill incorporates a private voluntary rating system as a basis for legal liability, it would constitute an unlawful delegation of legislative authority to a non-government entity. The legislature has no basis to assume that the ratings adopted by private parties for entirely different purposes serve any legitimate interest of the state. Given that the state has no legitimate interest in preventing minors from gaining access to legal materials, it is difficult to imagine how such a burden could be met.
We strongly urge you to reject this flawed bill.
Very truly yours,
Joan E. Bertin