It is not uncommon to hear parents express concerns about the content of movies that their minor children can view on television, personal computers, and at the local mall’s cineplex. Due to the belief that minors are more impressionable than adults, parents often worry that their children are at risk of mimicking the vulgar language and coarse attitudes expressed in many modern films. In addition, parents express concern about the substantial number of films containing significant amounts of graphically violent and sexually explicit material, as well as themes glorifying drug use, alcohol consumption, criminal activity, and other forms of destructive behavior. Parents also worry that movies are often demeaning toward women; racial, ethnic, and religious groups; gays and lesbians; and other marginalized groups. In fact, some people believe that the widespread consumption of modern films by adolescents and teenagers—who are in their prime socialization years—constitutes a significant threat to the psychological health and well-being of the next generation.
These fears and concerns are not, though, unique to the twenty-first century. In fact, since the first nickelodeons began playing films more than 100 years ago, parents and social reformers have worried about the substance of the material on display and the impact it would have on minors (Grieveson, 2004; Heins, 2003). Not surprisingly, almost immediately after the introduction of motion pictures in the early twentieth century, local and state governments began to develop regulations and licensing schemes to govern the content and public dissemination of films (Grieveson, 2004; Heins, 2003). These regulations typically required those who wanted to distribute and/or exhibit a film to first secure a license from a government board that had reviewed and approved the film. In its first opportunity to assess the constitutionality of these forms of regulation, the U.S. Supreme Court concluded that they did not violate any free-speech rights protected by federal and state constitutions.
In Mutual Film Corp. v. Industrial Commission of Ohio, 236 U.S. 230 (1915), the Court argued that motion pictures could be subjected to substantial government regulation because they are typically exhibited in theaters with a mixed-gender audience of adults and children. Justice McKenna, in his opinion for the Court, explained that state lawmakers had legitimate reasons to be concerned about these exhibitions because ‘‘there are some things which should not have pictorial representation in public places and to all audiences.’’ He added that ‘‘[w]e would have to shut our eyes to the facts of the world to regard the precaution unreasonable.’’ The Court concluded its analysis by asserting that movies were a novel and unique form of communication that warranted regulation by the state. Justice McKenna wrote:
It cannot be put out of view that the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio Constitution, we think, as part of the press of the country, or as organs of public opinion. They are mere representations of events, of ideas and sentiments published and known; vivid, useful, and entertaining, no doubt, but, as we have said, capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition. It was this capability and power . . . that induced the state of Ohio . . . to require censorship before exhibition . . . . We cannot regard this as beyond the power of government.
The Court’s decision in Mutual Film gave state and local governments the green light to expand their regulatory control over films and film exhibitors. For the next thirty-five years, films in the United States were closely scrutinized, although the eyes performing the scrutiny were not limited to government agents. For example, the Catholic church became actively involved in monitoring the content of movies, and its Legion of Decency (Catholic adherents who pledged not to attend movies that priests and bishops had deemed immoral) arguably had a significant effect on the content of movies (Heins, 2003). In addition, the film industry’s major studios developed the Production Code in the early 1930s as a way to monitor the content of films. Stephen Vaughn (1988, 1990) argues that the movie studio’s efforts at ‘‘self-censorship’’ resulted substantially from pressure exerted by the financiers of Hollywood studios—who in turn were strongly influenced by members of the clergy.
The effort to control the content of films was dealt a substantial blow, however, when the Supreme Court announced its decision in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952). This was the first Supreme Court decision to address film licensing regulations since the First Amendment was held applicable to the states in Gitlow v. New York, 268 U.S. 652 (1925). In Burstyn, the Court considered whether a New York license that had previously been issued to the distributors of the film The Miracle could be revoked by state authorities who subsequently concluded that the film was ‘‘sacrilegious.’’ Overriding the wishes of the New York State Catholic Welfare Committee (which had filed an amicus curiae brief in the case), the Court unanimously overruled its earlier decision in Mutual Film and directed state authorities not to revoke the film’s license. The Court concluded that films are entitled to significant protection from prior restraint and other forms of government regulation. As Justice Clark explained in Burstyn:
It cannot be doubted that motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression. The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.
In particular, the Court was troubled by the vague and ambiguous nature of New York’s movie licensing statute. The cryptic nature of the word ‘‘sacrilegious’’ failed to provide government agents with the requisite guidance to channel their discretion when deciding whether to issue licenses to distributors of films. It would be too easy for government agents to approve licenses for films containing religious themes that they favored and deny licenses to films they disfavored. Justice Clark explained in Burstyn that ‘‘the censor is set adrift upon a boundless sea amid amyriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies.’’
Over the next fifteen years, compliance with the Production Codes declined and fewer and fewer state and local authorities vigilantly enforced film regulations. Foreign films, which did not need to be submitted for approval under the codes, became increasingly prevalent in the U.S. market. Moreover, the Supreme Court decided several cases that made it increasingly difficult for government authorities to regulate film distribution and exhibition. For example, in Kingsley International Pictures Corp. v. Regents, 360 U.S. 684 (1959), the Court held that New York authorities could not refuse to issue a license to a film simply because, in their opinion, it contained views that condoned adultery.
More importantly, in Freedman v. Maryland, 380 U.S. 51 (1965), the Court held that film regulations must require the government to shoulder the burden of proving that a film is not protected expression— and in most instances this meant that the government would need to demonstrate that the film was obscene (see Ginsberg v. New York, 390 U.S. 629, 1968) or constituted child pornography (New York v. Ferber, 458 U.S. 747, 1982). The Court also held in Freedman that film regulations must provide prompt court review of any agency decision denying a license. Thus, although the Court concluded in Time Film Corp. v. Chicago, 365 U.S. 43 (1961), that the First Amendment does not entirely prohibit government authorities from reviewing the content of films prior to their exhibition, the collective weight of its decisions by the mid-1960s did impose heavy procedural burdens on government authorities.
As a result of these and other court decisions, government censorship boards largely faded away by the end of the 1960s. This process was accelerated when, on November 1, 1968, the Motion Picture Association of America (MPAA), the National Association of Theatre Owners (NATO), and the International Film Importers & Distributors of America (IFIDA) began implementing a voluntary movie rating system (Valenti, n.d.). The MPAA’s rating process is quite rudimentary. A group of eight to thirteen parents from Encino, California, view films and then rate them according to their suitability for individuals under the age of seventeen. Jack Valenti, the chair and CEO of the MPAA, explains the work of the ratings board in the following manner:
There are no special qualifications for Board membership, except the members must have a shared parenthood experience, must be possessed of an intelligent maturity, and most of all, have the capacity to put themselves in the role of most American parents so they can view a film and apply a rating that most parents would find suitable and helpful in aiding their decisions about their children’s movie going.
The decisions of the rating board can be appealed by movie producers to the Rating Appeals Board (a body comprising individuals from the movie industry), and the board’s decisions are final. Today, the MPAA has five rating categories: G (all ages admitted); PG (all ages admitted, although parental guidance is suggested); PG-13 (all ages admitted, although parents are strongly cautioned that these films may be unsuitable for children, especially those under age thirteen); R (restricted to patrons above age sixteen or those accompanied by a parent/guardian); and NC- 17 (no one seventeen and under admitted). Of course, it is highly unlikely that a small group of parents from the suburbs of southern California can accurately gauge what the ‘‘average American parent’’ considers appropriate for his or her children. Nevertheless, the MPAA ratings provide rough approximations about the content of films, and parents can use this information to monitor what their children watch.
From a civil liberties perspective, however, one can raise serious questions about the MPAA ratings— particularly whether the ratings are truly voluntary. After all, it appears that one of the primary reasons for their initial development was that of warding off more intrusive and rigorous government regulation (Valenti, n.d.) This implies that, in the absence of government pressure, the film industry might never have developed its movie rating program. If this is true, then the MPAA ratings are not an example of purely private censorship. Rather, they seemingly constitute an indirect form of government censorship, which one could argue presents a serious First Amendment problem.
Of course, one might question whether the MPAA movie rating system (even if created out of fear of government regulation) should qualify as government ‘‘censorship’’—with all of the negative bag and baggage that that word conveys. After all, the ratings are just that, ratings. They do not force screenplay writers, directors, or producers to alter or compromise the content that they wish to include in films. In fact, studios are not required to subject their films to the MPAA rating process. Instead, they are free to release their products to the general public without any rating—or with a rating of their own making (although they cannot attach one of the MPAA’s copyrighted rating labels).
Nevertheless, one should not forget that the film industry is one whose revenue is largely determined by the box office success of its products. To maximize revenues, most film industry personnel recognize that movies need to be viewable by the widest possible audience. Consequently, movie studio executives will sometimes exert pressure on screenwriters and directors to avoid including content that will trigger one of the more severe ratings. Compounding this problem is the fact that many cinemas will not run films with an NC-17 rating, and such films are not sold by some of the larger DVD retailers such as Wal-Mart and Blockbuster. In short, there is a strong financial incentive in the movie industry to produce films that will not be tagged with ratings beyond PG or PG-13.
Since movie ratings do not appear to be in the artistic or financial interest of the film industry, perhaps the MPAA should disband and walk away from its nearly four-decade effort of rating films. Indeed, and somewhat paradoxically, the film industry might be subject to fewer constraints if it stepped aside and let the government take over the ratings game. After all, any ratings scheme that the government developed would have to be consistent with the First Amendment. Despite Time Film Corp. v. Chicago and Ginsberg v. New York, there is good reason to believe that the Supreme Court’s extant free-speech doctrine would prevent the government from rating films in any substantial manner (and probably much less than they are regulated today under the MPAA’s standards).
Obviously, though, this would not prevent private individuals and organizations from developing their own rating systems and disseminating their results to the broader public. This already happens on a widespread basis today, and some of these rating schemes are much more detailed than are the MPAA’s. The First Amendment protects these private rating activities, just as it protects the rights of film critics to review movies in newspapers and on television. In many respects, the MPAA’s rating scheme crowds out these lesser known rating sources—and that may be a reason the MPAA does not want to exit the ratings business any time soon.
References and Further Reading
Cases and Statutes Cited