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The Motion Picture Association of America and the National Association of Theatre Owners have come out victorious in a lawsuit that insisted 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. On Thursday, U.S. District Judge Richard Seeborg dismissed an attempt led by a California father of two to hold major film studios and theater owners legally responsible.
The legal action from Timothy Forsyth on behalf of himself and others similarly situated claimed that the industry’s film-ratings practices amounted to negligence, misrepresentation, breach of fiduciary duty, false advertising, unfair competition and nuisance.
In response, Hollywood raised a First Amendment defense, arguing that ratings merely reflect opinions about what’s suitable for children and compelling them to give R ratings to anything found socially unacceptable could apply to films depicting activity like alcohol use, gambling, contact sports, high-speed driving and so forth.
In an order striking the complaint under California’s anti-SLAPP statute, Seeborg first takes up the question of whether the claims arise from acts in furtherance of free speech in connection with a public issue. The judge tackles Forsyth’s argument that the rating system represents “pure commercial speech” and that the only speech at issue are the “certification trademarks” of G, PG, PG-13 and R issued by the Classification and Ratings Board (“CARA”).
“The flaw in Forsyth’s reasoning, however, is that while some certification trademarks undoubtedly are merely representations of the characteristics of products and therefore arguably only commercial speech outside the purview of anti-SLAPP and entitled to only limited First Amendment protections, CARA’s marks serve a different purpose and arise in a different context,” Seeborg writes. “Indeed, the certification statements filed with the [Patent & Trademark Office] when each of the marks was registered plainly explain that CARA is merely ‘certifying’ that ‘in its opinion’ the particular film warrants a particular level of parental caution. Furthermore, 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.”
Having concluded this, Seeborg then examines whether Forsyth has any likelihood of prevailing on his claims.
“Forsyth insists that a rating less stringent than R is a representation that ‘the film is suitable for children under seventeen unaccompanied by a parent or guardian,’ ” continues the judge. “The ratings plainly make no such representations. Rather, the PG and PG-13 ratings caution parents that material in such movies may be inappropriate for children. More fundamentally, the ratings reflect the consensus opinion of CARA board members. As such, neither intentional nor negligent misrepresentation claims are tenable as pleaded.”
The judge then writes that the plaintiff has also failed to allege facts, if proved, that would establish the defendants had legal duties to him, created a public nuisance or how any of the activity would be “specially injurious” to him.
The ruling comes after a hearing that was held Oct. 28. Then, the judge also expressed discomfort with making a determination that could invite future lawsuits over film content.
Afterward, the plaintiff’s lawyers attempted to calm the judge’s slippery-slope worries by writing, “The only movie content that has ever been scientifically proven to kill kids by the hundreds of thousands is tobacco imagery. If additional scientific research and evidence does ever become sufficient to prove that exposing children to imagery in movies of bullying or violence or under-age drinking causes kids to engage in increased bullying, violence or under-age drinking then defendants should also be held liable if they rate such content with the PG and PG-13 ratings (under defendants existing rating system). But concern about possible future cases should not prevent doing the right thing in this case when we know what we know now.”
The argument wasn’t enough, although it’s not specifically addressed by today’s opinion.
The defendants were represented by attorneys led by Kelly Klaus at Munger Tolles.
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