Studios Focus on Opinionated Nature of Movie Ratings in Smoking-in-Films Lawsuit

The Motion Picture Association of America is offering a full-throated defense that movie ratings are protected under the First Amendment. On Thursday, the trade association and their member studios discussed in a court brief the way that ratings are registered as trademarks and emphasized the subjective nature of ratings. The filing is the latest in a putative class action that blames Hollywood for smoking-related deaths and demands that any film featuring tobacco imagery not be given “G,” “PG” or “PG-13” ratings.

The defendants, which also include the National Association of Theatre Owners, are looking to stop the lawsuit filed in California federal court with an anti-SLAPP motion. That means, they must convince the judge that Timothy Forsyth and other similarly situated are targeting an exercise of free speech in connection with an issue of public interest. If they succeed, then it’s up to the plaintiff to demonstrate a likelihood of prevailing before the case moves any further. The movie studios contend that movie ratings — as “opinions” — simply can’t be held up as misrepresentations. 

Those advocating for more social responsibility argue that artistic freedom is not at stake and the First Amendment doesn’t come into play because what’s at issue is “pure commercial speech.” In an opposition to the anti-SLAPP motion, the plaintiff stresses the way that movie ratings provide certification on which films are suitable for children. They argue that the Classification and Rating Administration (“CARA”) “cannot affix a PG-13 or lower certification on movies with tobacco imagery, because they know that it has been scientifically established that subjecting children to such imagery will result in the premature death of more than a million of them.”

The MPAA holds certification trademarks on “G,” “PG,” “PG-13,” “R” and other ratings, meaning that no one else can use them without approval if it confuses consumers as to sponsorship. Other examples of certification marks include “Good Housekeeping,” “Grown in Idaho” and “No Animals Harmed.”

The plaintiff says that the use of certification trademarks represent “a special type of speech,” but the MPAA responds that use of such marks don’t necessarily represent seals of approval.

“Some certification marks are seals of approval, but CARA’s are not, as the ratings guidelines, certification mark registrations, and language in the ratings boxes themselves make clear,” states the brief. “Indeed, the ratings system was designed to replace the seal of approval process that previously had been in place. Under the Motion Picture Production Code — the predecessor to the ratings system — movies were either approved or rejected based on a set of moral standards The CARA rating system was a marked departure: CARA would no longer ‘approve or disapprove’ the content of a film, but rather would rate movies for parents who could then make an informed decision on whether their children should attend.”

The MPAA points to the trademark registrations themselves, which specifically states a mark like “PG” conveys an “opinion” about whether the content of a movie calls for heightened parental attention.

Just because these ratings are registered with the U.S. Patent & Trademark Office doesn’t mean they lose protection as speech, the MPAA adds while drawing an interesting line to a recent appellate decision over the government’s refusal to accept a “disparaging” trademark registration. In that case, involving the rock band The Slants, the United States Court of Appeals for the Federal Circuit wrote, “That the speech is used in commerce or has a commercial component should not change the [First Amendment] inquiry when the government regulation is entirely directed to the expressive component of the speech.”

In other words, even if films are marketed to consumers who buy tickets, that doesn’t mean that the films — and stuff closely connected to the film like movie ratings — don’t qualify as expressive speech. The MPAA also compares a movie’s rating to “the listing of credits” for that movie as both being “informational rather than directed at sales.”

So if movie ratings do potentially qualify as First Amendment protected speech on an issue of public interest, can the plaintiff show a probability of ultimately prevailing on claims of negligence, consumer fraud and false advertising?

The defendants believe not.

Besides the First Amendment potentially standing as a bar to claims because among other things, the requested injunction would not be a “narrowly tailored” restriction of speech, they contend the plaintiff simply hasn’t identified any false or misleading statements.

“Plaintiff argues that a PG-13 rating is a representation ‘that the film is suitable for children under seventeen unaccompanied by a parent or guardian,’ and that this representation is false because the depiction of any tobacco use is per se inappropriate for viewing by unaccompanied minors,” states the brief. “The rating makes no such representation.”

Here, for example, is what audiences see when looking at the rating for Sully:

“Plaintiff now asserts that the representation he relied on was that the movies he saw would contain ‘no content that is inappropriate’ for unaccompanied youth under 17, but that is not what a PG-13 rating says,” adds the brief. “In fact, the rating’s representation that ‘Some Material May Be Inappropriate For Children Under 13’ applied directly in Plaintiff’s case. Plaintiff cannot establish reasonable reliance by ‘close[ing] his eyes’ to what a PG-13 rating actually says.”