"This Film Is Not Yet Rated"

Kirby Dick’s very funny and passionate probe of the MPAA’s rating system struck a few nerves with me.

As a moviegoer I was not surprised by revelations about the hyprocritical inconsistencies in the system. I’ve seen many films I thought were too violent for their PG-13 or even R ratings and the prejudicial treatment of sex in all its varieties was not a shock. The moviemakers interviewed make you shake your head about the insanity of their run-ins with the raters over “offensive” sex scenes. Dick laboriously but entertainingly makes his case about the lack of qualifications of the raters and the comical cruelty of the bureaucratic corporate process.

As a lawyer I was first appalled by the seemingly clear 1st Amendment and Due Process violations. That a small secret group should affect the ability of filmmakers to get their movies shown in theaters and sold in stores seems outrageous. My immediate reaction was amazement that in our litigious society and given how much money and passion was involved someone hasn’t sued their asses over this practice.

Thinking a bit more deeply into the issue as a lawyer, I began to see why no filmmaker has sued to overturn the system. It is “voluntary” and doesn’t “censor” in that it doesn’t ban or preclude release of any movie. The real issue is one that the industry cares more about than “Art” and “free speech.” The effect of an unwanted rating is that distributors will adhere to the system and not show the film (or sell it) to a large segment of the target audience - the youth market that gobbles up films at a higher rate than those the rating system permits to view them.

The MPAA is primarily a lobbying organization, intended to dissuade government from passing laws that restrict its “freedom” and to encourage laws that protect its business. The rating system was installed as a sop to conservative critics - both within government and social institutions - who threatened censorship.

The movie industry has a long history of self-policing in this way. The Hays Code and Breen Office of the 1930's was the studios’ response to public outrage over sex, drugs & violence in the silent and early talkie era. The Code was far more restrictive; no film could be released in the U.S. without its seal of approval.

The Code was broken in the 1950's, by European imports and, famously, by Otto Preminger in 1953's release of “The Moon Is Blue” without a seal of approval. That film was a mildly risque romantic comedy about seduction of a virgin by a playboy. The subject matter, playful tolerance of sex, and language (using the word ‘virgin’) were forbidden previously and Preminger was considered a courageous hero for challenging the Establishment.

It should also be noted that Preminger in 1960 was credited with breaking another studio self-policing policy – the blacklist of suspected leftist subversives when he credited Dalton Trumbo as screenwriter on "Exodus."

In the 50's and 60's the debate over “obscenity” and censorship was a hot topic in courts and legislatures across the country. Every municipality, county, and state tried to define it. National and local religious, educational, and parenting groups all disseminated reviews of movies and books, forcing bans in localities or among constituents.

At the same time the Supreme Court was struggling to balance the 1st Amendment with the borders of expression. The Warren Court was inclined to protect freedoms, but was under constant pressure, and eventually drew the line at laws and rules relating to minors. That was where a clear consensus was found. In two cases decided in 1968, the Court upheld a New York law prohibiting sale of obscene material to anyone under 17 (Ginsberg V. New York, 390 U.S. 629 (1968)) and struck down a Texas law that created a “Motion Picture Classification Board” only because its standards were constitutionally vague (Interstate Circuit V. Dallas, 390 U.S. 676 (1968).

Later that year, The MPAA system devised its rules. and the very next year, an “X rated” film, Midnight Cowboy, impressed critics and audiences, winning Oscars and making a lot of money. In 1971 Kubrick’s “A Clockwork Orange” did the same. Russ Meyer also exploited the “X” with his soft core porn films and “Deep Throat’s” popularity showed that the “X” could in fact lure customers. Eventually, “X” films were refused advertising on T.V. and in many newspapers, and it was then limited to porn films.

In 1990 the “NC-17" rating replaced the “X” and the studios have been able to make it stick, due to the cooperation of distributors and mass market video sellers like Wal-Mart which refuse to sell such rated films.

Most producers have yielded to the market’s pressure by cutting their films to avoid the dreaded “NC-17” and as Dick’s film shows, it produces some absurd results, many injustices, and some harm, as when movies that might be meaningful for teens are denied them while they are drenched with the bloody “R’s” and “PG-13's.” When a potentially superior film like Bertolucci’s “The Dreamers” is tagged “NC-17,” it is a crying shame, denying wide distribution to a film that should have been seen and appreciated by everyone.

The marketplace may eventually make the arguments irrelevant. Already, "unrated" DVD's that include scenes excised for theatrical release are proving a profitable market. "Adult film" (i.e., Porn) DVD sales are in the billions. And the internet promises a market impossible to censor or restrict. Sophisticated home entertainment systems will soon make the neighborhood movie house remodel into something more useful and the "theater experience" will become like going to live theater, a special occasion for certain kinds of films.

In the 50's and 60's, films were shot in European and U.S. versions. I think that may happen again: films will be cut in several "sizes," and styles, one for the home market, one for theaters and one for the internet.