Movie Ratings and Smoking: Protects First Amendment, not Kids
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Movie Ratings: Protected by the First Amendment, but not Protecting Kids

Movie Ratings: Protected by the First Amendment, but not Protecting Kids

Recent studies have shown that on-screen smoking accounts for many new adolescent smokers. In 2014, the US Centers for Disease Control and Prevention estimated that exposure to on-screen smoking would recruit more than 6 million new, young smokers from America throughout the course of the year.1 On top of this, smoking was found in 36% of films rated for adolescents in 2014.2

 

What is responsible for this? Some have turned towards the movie rating system. A lawsuit was recently filed against the Motion Picture Association of America (MPAA) and the National Association of Theatre Owners (NATO) claiming that film-ratings practices amounted to negligence, misrepresentation, breach of fiduciary duty, false advertising, unfair competition and nuisance. It alleges that by failing to give movies with smoking scenes an R-rating, the MPAA and NATO are acting negligently and putting children at risk of becoming addicted to nicotine. Additionally, the suit claimed that that tobacco imagery in films rated G, PG or PG-13 causes 200,000 children every year to become cigarette smokers and 64,000 people to die as a result.3

 

However, it does not seem that the movie rating system will be held accountable. On November 10th, U.S. District Judge Richard Seeborg granted a motion to strike the complaint against the MPAA and NATO under California’s anti-Strategic Lawsuits Against Public Participation (SLAPP) statute.4 The statute states that a “cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”5 Judge Seeborg concluded that movie ratings are just opinions meant to caution parents and do not represent “pure commercial speech” as plaintiff Timothy Forsyth argued. Since they are only opinions, they constitute free speech that is protected by the First Amendment.6 Additionally, Judge Seeborg stated that “the underlying ‘product’ —films— are not mere commercial products, but are expressive works implicating anti-SLAPP concerns and plainly entitled to full First Amendment protection.”7

 

While it may look grim for plaintiff Timothy Forsyth and all those looking to combat the movie rating system, there is a small glimmer of hope. The court has given the plaintiff the chance to amend his complaint to cure its defects.8 Additionally, the decision may be appealed to the US Court of Appeals for the Ninth Circuit.9 However, it is unlikely that either route will amount to much as the court stated that the case’s chances were “remote”.10 It now seems that those looking to prevent adolescent exposure to on-screen smoking are going to have to look for another way to do so.

Andrew Washburn

Andrew Washburn is a second-year J.D. Candidate at Fordham University School of Law, with a concentration in Intellectual Property and Information Technology Law. He is a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal.