Movie Ratings Are Not Protected by First Amendment, Court Told

'The Little Mermaid'

At her first formal dinner following her transformation into a human, Ariel brushed her hair with a fork and incorrectly smoked another's guest's pipe.

Imagine Coke, Pepsi and Dr. Pepper formed a trade association that inspected soft drinks, and despite knowing that a certain ingredient caused debilitating diseases that would result in one million deaths, decided to put labels on bottles certifying that the contents are suitable for children under 17 to drink.

That's a hypothetical conjured up by plaintiffs suing the Motion Picture Association of America over films rated "G," "PG," and "PG-13" that contain tobacco imagery. "This case is no different," write the plaintiffs in a memorandum filed Friday.

The MPAA, its studio members and the National Association of Theatre Owners are defending against what they see as an impingement of free speech. In response to a putative class action flagging such films as Dumb and Dumber To, Transformers: Age of Extinction and Iron Man 3 as featuring smoking imagery yet recommended for young audiences, the defendants characterize movie ratings as "opinions" about what most American parents would think about the suitability of a motion picture for viewing by children.

"The First Amendment provides those opinions with 'full constitutional protection' against civil liability," argued the MPAA's lawyers in a motion.

The plaintiffs are now fighting against the possibility their lawsuit is stricken under California's SLAPP statute.

"The complaint raises no question of artistic freedom or of defendants' right to participate in public debate," states plaintiffs' newest memo. "Instead this lawsuit deals with quotidian issues of false labeling and advertising. The complaint asserts that defendants 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."

As previously discussed, the lawsuit opens up challenging issues that if given thrift could invite all sorts of legal liability on Hollywood's rating system. If this litigation experiences success, it could open the floodgates to lawsuits blaming Hollywood for helping cause gun deaths and other social calamities. For that reason, the studios and theater owners are deeming ratings to be opinions that must not be applied to "prescribe socially-appropriate values."'

The plaintiffs see this as a deflection against an action targeting speech they deem to be commercial. They say that Hollywood can give no ratings or very restrictive ratings on films with smoking, but that they can't give certifications of appropriateness to children if the scientific community believes otherwise.

"In the Motion, however, straightforward claims for negligence, consumer fraud and false advertising against a trade association promoting the sale of its members' products have been improperly analyzed as if they were defamation claims against newspapers, book publishers and news agencies for speech published to inform the public about issues of public interest," continues the memorandum. "Defendants assert that their speech is being targeted. Yet, every negligent misrepresentation, consumer fraud and false advertising case challenges speech. But the 'speech' that is being targeted is false commercial speech; it is the false and misleading ratings that defendants assign and then affix to each film they rate with the individual, numbered certification trademark or seal of the MPAA."

Here's the rest of the brief.