On Ensuring Transparency and Accountability in Film Ratings

WHAT FOLLOWS IS A PAPER I WROTE FOR A FREE SPEECH CLASS AT UCLA. THE SUBJECT MATTER IS GOVERNMENT VS. PRIVATE FILM RATING/CENSORSHIP SYSTEMS. THE PAPER COULD ONLY BE 2 PAGES SINGLE SPACE, SO ITS PRETTY CRAPPY, AS I FELL IT NEEDED TO BE MUCH LONGER TO FULLY EXPLORE THE THEMES. TO BE HONEST, I DON'T AGREE WITH A GOVERNMENT SYSTEM AT ALL, BUT MY ADVOCACY OF IT IS MORE SO BASED ON A CONTEMPT FOR THE MPAA THAN FOR LOVE OF CENSORSHIP...

“Censorship” is a word that evokes strong reactions among most Americans. Add the word “government,” and the reaction will likely be even more pronounced. Perhaps at the heart of this is a general sense that speech should never be suppressed or limited, that access to the “marketplace of ideas” should never be closed off. Nevertheless, many industries have established various rating and guideline systems that serve as de facto (and at times de jure) censoring boards. Perhaps the most notable is the Motion Picture Association of America (MPAA), which founded its ratings board in 1968 and has since become the most recognized film rating agency in America. Despite its usefulness as a guide for parents, it has raised considerable controversy since its founding, and with the release of the documentary This Film Is Not Yet Rated in 2006, questions of ethics and transparency have become even more pronounced. After seeing the film, Roger Ebert, a vocal critic of the MPAA, wrote that it leaves the viewer “thinking a government censorship board… isn't such a bad idea.” As much as that may leave a sour taste in many people’s mouths, there is much reason to believe a government system would be more effective.

According to the MPAA’s website, the goal of its ratings system is to “provid[e] clear, concise[,]… timely, [and] relevant information to parents.” Furthermore, the organization claims to be “a proud champion of… freedom of expression and the enduring power of movies to enrich and enhance people's lives.” Both are certainly admirable goals and values, but arguably the reality is far from the P.R.-friendly pronouncements of its website would lead one to believe.

The first stated mission of the MPAA, to provide guidance to parents about film content and suitability for minors, is certainly an important one. Many parents have, since the advent of the film industry, objected to its supposed corruptive ability, and the rise in graphic depictions of sex, violence, and drug use in recent years certainly makes the need for guidance even more pressing. Nevertheless, the reality is that the rating system goes beyond mere guidance to actively restraining both parents and children. For example, an R rating on a film requires that a child be accompanied by a guardian, which may not only be bothersome to both parent and child, but may actually supplant a parent’s permission. A guardian who wishes not to accompany their child to an R-rated film, but who has given full permission for them to view it, will essentially be ignored. Even worse, a parent who, having made an educated investigation, finds an NC-17 film unobjectionable will be forbidden from bringing anyone under 17 in to the theatre with them, despite their informed decision and approval. In that manner, the ratings system can effectively ignore parent’s wishes at the same time as it intends to protect their rights to make informed decisions.

Nevertheless, it could be argued that this is a minor problem, and that the benefits of protecting youth from objectionable material outweigh the incidental effects on free speech. That may be a valid point, but only if there was a way to insure that the system was not abused and that the ratings were applied in a more or less objective manner, with some form of oversight and transparency. Unfortunately, neither oversight nor transparency exists in the MPAA review board, the membership and deliberations of which remain a closely-guarded secret. In addition, independent studies and investigations, including some illustrated in This Film Has Not Yet Been Rated, have demonstrated inequities and inconsistencies in film ratings between individual titles, as well as between those produced by the six major film corporations and those produced by independent filmmakers. Furthermore, strong disparities have been found between treatments of sexuality and violence, with films showcasing the former being far more likely to receive an NC-17 rating than the latter. For example, the Passion of the Christ, a film Roger Ebert considered the most violent film he had ever seen received only an R rating, while the film Where the Truth Lies received an NC-17 for graphic depictions of lesbian sexual intimacy. An additional point raised by these particular examples is the rating disparities between films depicting or promoting Christianity and traditional values and those depicting homosexuality or nontraditional lifestyles.

The specter of government censorship understandably scares many people, but if one were to entertain the idea it may become clear that it is a better and more practical alternative to the current state of affairs. The MPAA was founded as a means of preventing and/or limiting government entanglement with filmmakers, thereby theoretically protecting the free speech rights and artistic license of filmmakers. Such is definitely the statement on its website. Nevertheless, its de facto censorship, absent any defined standards or oversight, has effectively limited speech more than a government censorship board would be likely to do. Unfortunately, because the MPAA’s decisions have no force of law (despite its de facto censoring powers), no First Amendment or other legal claims can be made against it. Its recommendations to filmmakers to edit or delete scenes therefore have considerably more sway, despite its supposedly voluntary nature. Was it a government-regulated system, filmmakers would have structures in place whereby they could appeal decisions to transparent boards or courts. Furthermore, the specific guidelines would have to be more effectively laid out, thereby limiting confusion on the part of studios and also discretion on the part of government boards. In addition, all regulations would be subject to constitutional muster, thereby making the threshold at which expression may be stifled significantly higher than in a system without oversight. In addition, the government system would (theoretically) not be controlled by the major studios as the MPAA is. Of course, the reality could be different given the significant lobbying powers of large corporations on Capitol Hill and in state legislatures, but the transparency and accountability of legislators to their constituency would at least serve as a buffer against egregious abuses. As such, independent films may have a greater chance of reaching larger audiences without significant censorship of their scenes, given the relatively relaxed and open government policy toward even pornographic films.

Perhaps the most effective manner of administering a government-instituted ratings system would be to create a two-tiered ratings agency, with the primary board as the first determining body and an appeals panel in the second tier, as in the current MPAA system. Both tiers could require executive nomination with advice and consent of the respective legislative body, thereby making the panels more transparent. Appeals of the second tier decisions could be made to the judicial branch, perhaps to a district court. This would ensure that decisions are separated from the legislative process, and that safeguards would be in place for all parties concerned. In addition, greater care could be taken to ensure that local theatres are not overzealous in their enforcement of ratings, ensuring that what is essentially a guidance system does not become a structure whereby exposure of minority viewpoints would be limited.

And what of the fate of films such as This Film Is Not Yet Rated, films critical of the prevailing structure, even of the film ratings system itself? They would be handled in the same manner as all other films, without prejudice or consideration of the subject matter at hand (when falling within protected speech, of course). If anything, the treatment would be less restrictive, as any objectionable material within this film is excerpted from other films and is intimately related to the purpose of the film, which is essentially educational.

These measures would hopefully help to remedy the current state of affairs as regards film ratings and censorship. Of course, no system is fool-proof, but a system with checks and balances, with oversight and transparency, is always preferable over a closed, secretive system with huge discretion in carrying out its goals. This is especially true when a system touches something so fundamental to our system as free speech and expression.