HOLLYWOOD-BASHING AND THE FIRST AMENDMENT

By JULIE HILDEN


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Thursday, Sep. 21, 2000

Across the political spectrum this fall, it's "Burn, Hollywood, Burn." An issue that might have divided the parties -- whether and how to regulate "violent" movies -- has them trampling one another in their race to leap onto the bandwagon. The issue is not whether to hate Hollywood, but rather, who hates Hollywood most.

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Is it sticker mom Tipper Gore, Silver Sewer innovator Joe Lieberman, or Crossfire complainer Lynn Cheney? Is it Al Gore, who's threatened to unleash the FTC and let it regulate movie studios as if they were tobacco companies?

Penn, only about fifteen percent of the American public believes the First Amendment protects Hollywood movies from any government action. More incredibly, twenty-two percent of the public supports government content restrictions on movies that would, if enacted, constitute blatant constitutional violations.

Recalling that one of the First Amendment's purposes is to protect unpopular speech, one may wonder how the Amendment itself became so unpopular. When did we stop believing in the First Amendment, when it comes to regulating movie violence, and why?

If Violence Ratings Are Everywhere, Why Can't The Government Impose Them Too?

One reason the public doesn't worry about protecting the First Amendment from movie violence regulation may be that the most common panacea offered is a government ratings system. Since ratings are already ubiquitous, more ratings appear harmless. On the Internet movie reviews, "grades" and evaluations of suitability for children are widely available. Slate, moviefone.com and Entertainment Weekly even offer buffets of different critics' ratings from which to choose.

As a result, the compulsory "universal ratings system" proposed by some may seem to be one more innocuous consumer service: the government's variant of what is already available from private companies. And Hollywood's complaints about such a system may seem as whiny as complaints about unfavorable reviews. But as a matter of both constitutional law and real-world practice, making voluntary ratings compulsory would transform them profoundly -- from a service to a threat.

The spectrum of voluntary ratings and reviews that is now available vindicates the First Amendment's concept of a "marketplace of ideas" from which to choose. On the Internet and in print, the overwhelming majority of ratings or grades are connected to a review that is, at most, a click away. And of course, by reading a critic's review, we can also divine his point of view. Even if we only consult ratings, we have a choice among many; if we see that a movie received the equivalent of a C from critics, we can also see, in one of the "review buffets," that moviegoers gave it an A. One critic may find a movie unsuitable for children because it contains violence; another might find it virtually obligatory for them because it shows violence's toll.

In short, private ratings generally shore up the aims of the First Amendment, in that they are diverse, transparent and well-explained. Compulsory ratings, on the other hand, would be anti-First Amendment, in that they are likely to be univocal, opaque and explained only by a label or a few conclusory words. Of course, this last point might also be made about the current voluntary movie rating system -- which also provides ratings without reviews. But the current system's language, a dry assessment of age-appropriateness, does not condemn and deprecate as strongly as the proposed systems of violence-assessment would. Such a rating system, especially with the aegis of the government behind it, would be very much like a blacklist -- which tries to taint by naming, without fully explaining.

Just as being named on a blacklist can dehumanize a person by reducing him to "a Communist," so too can an unexplained or partially-explained rating dehumanize a movie -- reducing it to "a violent film." "The Basketball Diaries," for example -- a worthwhile movie the message of which actually favored recovery from drugs and violence -- has now been reduced to the image of Leonardo DiCaprio with a gun in a long black coat, and deemed "a violent movie." This is akin to reducing "The Scarlet Letter" to the image of Hester Prynne having sex with the Reverend Dimmesdale, and calling it "an adulterous book."

What's So Bad About A Little Box In Your Ads?

Not only would compulsory ratings violate the spirit of the First Amendment -- quashing lively discussion in favor of fiat-by-label -- they also violate its letter. One important aspect of the First Amendment is the right not to be forced to voice the opinions of others, including those of the government.

to salute the flag, to take a loyalty oath with which one disagrees -- or even to display on one's license plate a state motto contrary to one's own beliefs, thus becoming the motto's moving billboard. But a government-rated movie is exactly that -- a moving billboard for the government's message.

Compulsory speech that attacks one's own beliefs is among the harshest of constitutional injuries. Being forced to swear loyalty smacks of fascism. Being forced to renounce one's own beliefs, and admit you were wrong, is what is done in the torture room. Yet compulsory movie ratings that force a studio, writers and actors who believe in a movie nevertheless to label it "violent" or "unsuitable for children" don't seem to bother us. Why? Is it because of the heights of self-flagellation to which we've driven tobacco companies, starting with boxed Surgeon General's warnings, and culminating in powerful anti-youth-smoking ads?

This level of self-flagellation may be proper for an industry with a product that kills; and that juries have found have lied about that fact to the public for years. But unlike tobacco, movies -- even violent ones -- aren't inherently bad; on the contrary, they are just as likely to enrich and enable a healthy culture as to destroy one. ("Saving Private Ryan"? "Apocalypse Now"?) Nor have movie industry executives ever been found to have lied to the public.

But What About the Chilllllllllllllldren?

So far, that is. The FTC is now trying to catch the movie industry in supposed "lies" -- or at least in hypocrisy -- by suggesting that the industry markets R-rated movies to children. The FTC is trying to hit the industry where it's weak -- advertising traditionally has received less constitutional protection than other speech, and who wants to argue against protecting children? The sense that "It's only ads," or "It's for the kids," may be animating our recent complacency. But this attack is deeply unfair.

Reportedly, the FTC has evidence of a studio using eleven-year-olds as a focus group for an R movie. Is this such a great transgression?I probably saw my first R-rated movie when I was around twelve, and I'm not in jail yet. The same is true for many Americans. The focus group kids must have had parental permission. And kids can see R-rated movies if their parents accompany them. Or have we forgotten the difference between R and X ratings? Finally, if kids are going to lobby their parents to allow particular R-rated movies, then it seems fine for the industry to market those movies to them; after all, they are part of the target audience. Only a campaign to inspire kids to sneak into R-rated movies over their parents' objections would be truly hypocritical.

And even if you disagree with everything I've said about the focus groups, the solution is not to impose a compulsory ratings system. It is merely to stop focus groups from using minors. A few anecdotes should not serve as a wedge for much more expansive regulation. That's what the FTC may be hoping for. But that's not what the public -- cognizant of the First Amendment -- should allow.

Julie Hilden is a freelance writer based in New York, and the author of the memoir "The Bad Daughter" (Algonquin 1998). From 1996-99, she was an attorney at Williams & Connolly, where she aided in the representation of media entities asserting First Amendment defenses and arguments against regulation.

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