WHEN SELF-CENSORSHIP IS WORSE THAN CENSORSHIP BY THE GOVERNMENT:
Health Groups Try to Control How Movies Can Depict Smoking

By JULIE HILDEN


julhil@aol.com
----
Tuesday, Nov. 26, 2002

Recently, several influential groups -- including the World Health Organization and the American Medical Association -- have called on the movie industry to make a number of changes in its practices, in order to help combat smoking.

First, films that depict smoking would get an automatic "R" rating unless they "clearly and unambiguously" made clear the dangers of tobacco. Second, tobacco brands could never be shown on screen. Third, anti-tobacco ads would have to be run before any movie that depicts smoking.

If the government had tried to impose these strictures on the movie industry, its effort would doubtless have been struck down as a First Amendment violation. Yet because the Motion Picture Association of America (MPAA) is a private group, and would be accepting these proposals "voluntarily," they would probably easily survive court review.

For a First Amendment violation to exist, there must be "state action" -- that is, government involvement -- and even if the MPAA effectively may appear to make laws for the movie industry, technically it does not. However, the free speech harms these proposed practices would cause, if imposed, cannot be ignored.

Ironically, as a result of deciding to regulate itself, rather than accept government regulation, the MPAA may end up with even stricter -- and more anti-free speech -- rules than would otherwise have been the case. That's because while the groups cannot force the MPAA to kowtow to their demands, they can exert heavy pressure: No one supports youth smoking, so the MPAA may be cast as a villain if it resists.

The Rating System and What An "R" Rating Means

In 1968, to deflect criticism, the MPAA agreed to set up a ratings system for its own members' movies. It probably calculated that, once a "voluntary" ratings system existed, the government was highly unlikely to impose a mandatory rating system. And so far, that calculation has proved correct.

The advantage of the ratings system is that, for the most part, it avoids direct censorship. Even unrated movies can be shown, though few movie theaters are interested in offering them. And otherwise, ratings have the effect of limiting audiences, not destroying them.

Take, for example, the "R" ratings at issue here. As most moviegoers are aware, an "R" rating means the film cannot be seen by unaccompanied minors; a parent or guardian must attend. Currently, "R" ratings are almost always given because a movie contains "bad" language, violence, or nudity in a sexual (or even "sensual") context, or because it depicts drug abuse.

For the teenagers, the effect is the same as if they simply had been prohibited from seeing the movie. And for the moviemakers, the effect is also the same: They are penalized for the content of their movie by the rating, for it results in lost audience members and lost revenue

In short, ratings can in effect act as direct censorship, even if they technically do not impose it -- and the two issues can be analyzed somewhat similarly.

With all this in mind, let's look at the three specific proposals the WHO, AMA and other organizations -- such as San Francisco's Smoke Free Movies -- are urging the MPAA to adopt, and why they are problematic from a free speech standpoint, even though the courts may not agree. .

The Problem With Requiring an Anti-Smoking Message to Avoid An "R"

Consider the first proposal: penalizing those films that depict smoking, but do not contain an anti-smoking message, with an "R" rating. From a First Amendment perspective, if the government did this, it would clearly be unconstitutional viewpoint discrimination. According to the proposal, if you say "smoking is bad," you're okay; if not, you're punished.

This kind of highly content-based regulation is anathema to the First Amendment. This thus may be, from a free speech perspective, the worst proposal of all.

The Problem With Forbidding Tobacco Brand References

What about the second proposal -- telling moviemakers not to show tobacco brands on screen? This may seem more innocuous, because it sounds like it concerns advertising within the movie, and not the movie itself. And it's true that -- from E.T.'s Reese's Pieces to the present -- movies are often vehicles for product placement.

But not so fast. This proposal isn't limited to actual product placements (which might be able to be analyzed separately, under the "commercial speech" doctrine). It would apparently cover every instance in which a brand is shown. Thus, it regulates movies, not just movies-as-advertisements.

Of course, I'm not saying smoking's cultural currency is a good thing. Quite the contrary, I'm all in favor of the movement to make smoking as uncool and unsexy as possible. I don't smoke, my grandfather died of lung cancer, and I want my friends who smoke to quit.

But it's a cultural fact: smoking, and smoking a particular brand of cigarettes, sends a message, often quite a specific message. And as long as it does, especially in the context of art, that message should be protected.

The Problem with Requiring Pre-Movie Anti-Smoking Ads

What about pre-movie anti-tobacco ads -- the third proposal? Again, since we are dealing with advertising, we might seem to be on safer First Amendment ground, within the laxer "commercial speech" area. But that's not really the case.

Remember, the groups aren't just asking the theaters to run their advertising; they're asking moviemakers to pay for advertising they may not support. Presumably the groups could just produce the ads themselves, and buy the pre-movie space to run them from the theaters.

Asking someone to mouth -- and even pay for -- speech he does not believe is a classic First Amendment harm. Asking someone to both mouth and subsidize the speech is even more harmful from a free speech perspective. Imagine being taxed to support a position you hated, and then being asked to put a banner supporting that position on your lawn.

So which is worse, forcing the ads or changing the movie's content (as the anti-smoking message and brand reference proposals would do)? It depends on what kind of free speech restrictions bother you more.

In my own view, I'd rather see the pre-movie ads than have the health groups touch the content of the movies. But the moviemakers who have to pay the tabs for the ads may well disagree.

One thing is certain though: These proposals should be alternatives, not a list of demands. If viewers must sit through anti-smoking ads, they shouldn't be forced to see an anti-smoking message in their movie too.

Some In Hollywood Are Already Voluntarily Including Anti-Smoking Messages

In a final irony, it's evident that at least some opinion-makers in the movie industry are in the process of changing the way they depict smoking on their own -- because of their own beliefs, and not necessarily due to outside pressure.

For instance, in the recent action movie "xXx," the hero, played by Vin Diesel, tells a villain his chain-smoking will kill him, but is ignored. Later, when the villain dies in a smoking-related explosion (a heat-seeking missile hones in on his cigarette), Diesel's character cracks, "I told him that would kill him someday."

The Diesel example shows we're a long way from Bogart and Bacall smoking up a storm to set off sparks between them. Diesel's character's Generation Y clean living (he's not much of a drinker either) has its own powerful sex appeal, and he manages to set off plenty of sparks with Asia Argento without a single match being lit.

Yet the WHO, AMA, and others are still pushing Hollywood to go further, faster. As Hollywood pursues the laudable goal of combating smoking, particularly by teenagers, it should be careful not to promote restrictions that walk, talk, and squawk like censorship. Even if these proposals are not technically First Amendment violations, they still can inflict serious free speech harms.


Julie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir "The Bad Daughter." She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99, where she participated in the representation of the MPAA, among other clients. The views expressed in this column are solely her own.

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