The Federal Communications Commission (FCC) is considering new content ratings for TV shows that depict or discuss gender identity. Doing so would be well outside the FCC’s legal authority, and some free speech organizations warn that such a request could constitute a violation of the First Amendment.
At the direction of the Telecommunications Act of 1996, broadcasters developed content ratings for TV shows, patterned after the ones for movies. The TV ratings span TV-Y (appropriate for all children) to TV-MA (mature audiences only), plus more specific content labels for suggestive dialogue, bad language, sexual content, and violence. They also established the TV Parental Guidelines Oversight Monitoring Board (TVOMB) to administer the new ratings.
The government now suggests those warnings are no longer sufficient.
“Recently, parents have raised concerns that controversial gender identity issues are being included or promoted in children’s programs without providing any disclosure or transparency to parents,” per a public notice the FCC filed in April. “Specifically, the industry guidelines that parents rely on are rating shows with transgender and gender non-binary programming as appropriate for children and young children, and doing so without providing this information to parents, thereby undermining the ability of parents to make informed choices for their families.”
As a result, it continued, “We seek comment here on any changes that can or should be made to the current ratings system to ensure that it is responsive to the issues that parents confront today.”
There are several problems with the memo—starting with the fact that the FCC lacks the authority to create or require new content labels.
The 1996 law did call for the government to create a “television rating code” and an “advisory committee,” unless the private sector “established voluntary rules” to do so within a year of the law’s passage. As the FCC acknowledged in its April memo, “Industry representatives chose to set up their own voluntary system, and the Commission in 1998 found that industry’s approach met the relevant statutory criteria.”
Even setting that aside for the moment, the memo’s phrasing also suggests any “transgender [or] gender non-binary” content is potentially inappropriate for children—after all, why else would it matter if parents were sufficiently warned about it?
This broad scope has First Amendment implications. “If what the Commission is in substance proposing is that any program featuring or discussing transgender and gender non-binary persons be flagged with a content warning, that is the stigmatization and marginalization of an entire segment of the population through the machinery of the ratings system, and it is the kind of viewpoint targeting forbidden by the First Amendment,” according to comments filed to the FCC by The Future of Free Speech, a nonpartisan think at Vanderbilt University.
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