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Movie Industry in First Amendment Clash With Anti-Smoking Activists

A consumer-fraud complaint targeting the Hollywood film industry is pitting anti-smoking activist fears against free speech concerns.

The defendants in the case are the Motion Picture Association of America, its studio members and theater owners who in court papers say they’re defending against a dangerous assault on the First Amendment.

But the plaintiffs’ lawyers seeking to turn the lawsuit into a mega-class action say it’s not the speech that’s at stake, but the lives of kids.

The main plaintiff is a 52-year-old California man named Timothy Forsyth, a father of two middle-school aged kids who alleges that the film industry is misleading and literally killing young consumers by affixing PG-13 ratings on films featuring “tobacco imagery.”

Movies in which characters smoke are dangerous to children who are “particularly vulnerable to various forms of marketing and advertising,” the complaint filed by his lawyers alleges. And parents who trust the movie-rating system to warn them about inappropriate content are unwittingly exposing their kids to images that will hook them on cigarettes and set them on a path toward lung cancer and heart disease. And by failing to disclose that youth-rated films contain tobacco imagery and by not giving those movies a more restrictive R rating, the film industry is tricking parents into buying their kids tickets to films, the lawsuit alleges.

In court papers, the film industry is attacking the lawsuit as a “misguided attempt to upend basic tort principles and core First Amendment protections to force…the movie ratings body… to change the opinions it expresses through its movie ratings system.”

The plaintiffs spotlight 10 big-budget Hollywood films released between 2012 and 2015 that are rated PG-13 and contain “tobacco imagery.” Among them are “Dumb And Dumber To”, “Iron Man 3″, “Men In Black 3″, “Transformers: Age of Extinction” and “The Hobbit” franchise.

It’s not exactly clear how tobacco imagery is defined, but it seems to encompass more than cigarette smoking but could include characters smoking pipes (as the case with the wizard Gandalf in the Hobbit) or just images of cigarettes.

The MPAA is pushing back hard. It’s invoking powerful First Amendment protections under California’s “anti-SLAPP” statute. The law, one of the most expansive of its kind in the country, aims to discourage costly lawsuits of dubious merit that threaten legitimate freedom of expression. It shifts the burden of proof to the defendant’s advantage, offers a stronger shield against plaintiff discovery demands and gives the party getting sued a way to toss out a lawsuit at an earlier stage.

The plaintiffs claim the MPAA’s rating system isn’t a protected expression of opinion but a form of commercial speech. As such, the First Amendment protections are much weaker, they argue. Their commercial speech argument hinges on the fact that the MPAA has registered its ratings as trademarks.

In a brief filed this month, the plaintiffs wrote:

Defendants are free to express their opinions in newspapers and books and press releases about the appropriate way to rate films with tobacco imagery, and the expression of their opinions in that form is protected by core First Amendment principles. However, when defendants make false and misleading representations on product labels or advertisements for the purpose of selling products, they are engaged in quintessential commercial speech, and such commercial speech is not protected by the First Amendment.

Beyond its First Amendment defense, the MPAA balks at the notion that it’s the only public source of information available to parents about the content of movies. It notes that they can go online to anti-smoking websites like Smoke Free Movies to see if a film features smoking.

The film association says smoking imagery, particularly when it glamorizes smoking, can be factored into ratings. The MPAA’s movie ratings body, though, has rejected demands that it slap a mandatory R rating on all motion pictures with any smoking.

Overall, though, the percentage of youth-rated movies that are “smoke free” has plummeted in recent years, according to data posted by the Centers for Disease Control and Prevention. And smoking levels are also at record lows.

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