SAN FRANCISCO (CN) - A federal judge on Friday seemed skeptical of arguments that the motion picture industry misrepresents the content of films by not giving R ratings to all movies featuring tobacco smoking.
Bay area activist Timothy Forsyth sued the Motion Picture Association of America, National Association of Theatre Owners and six major film studios in Federal Court in February, seeking an injunction to require R ratings for films that include tobacco imagery.
Forsythe says scientific evidence supports the claim that failing to shield young audiences from smoking in films will cause more children to pick up the habit and lead to at least a million deaths from tobacco-related health issues in the future.
His lawsuit cites health experts and advocates, including the World Health Organization and American Medical Association, which have recommended that smoking in films targeted at youth be eliminated to "reduce the deadly physical harm these films pose to young audiences."
At a hearing Thursday, attorneys for the film industry argued that ratings assigned to films are expressions of protected free speech and cannot be challenged in court under California's Anti-SLAPP statute.
"This is not a case where plaintiff is trying to hold defendants liable for something said; rather something unsaid," film industry attorney Kelly Klaus argued. "They are forcing defendants to express opinions they want us to express."
Roger Myers, representing theatre owners, cited the 2011 Supreme Court ruling in Brown v. Entertainment Merchants Association, which struck down a California law restricting minors' access to video games with violent content.
Myers said the high court recognized that video games are entitled to the same First Amendment protections as movies, and that the state's restriction on free speech was not justified by a compelling government interest because "the science wasn't certain enough."
But unlike the uncorroborated link between violence and video games, Forsythe's attorney David Schachman argued evidence on the effect of exposing children to images of smoking and the resulting danger to their health is "overwhelming."
Forsythe's lawsuit notes that half of the top-grossing films released from 2012 to 2015 featured tobacco imagery, and he cites multiple studies on how researchers measure "tobacco impressions" on film audiences and the harm caused by those impressions.
Nevertheless, U.S. District Judge Richard Seeborg appeared unconvinced that giving a PG or PG-13 rating to films with smoking rose to the level of an intentional misrepresentation by the movie industry.
"I'm still unclear what the misrepresentation is," Seeborg said.
Guidelines for a PG-13 rating state that "some material may be inappropriate for children under 13."
Seeborg said that did not seem like a misleading statement regarding the content of films that contain tobacco imagery.
"You're saying it's not a good enough representation, that it should be stronger," Seeborg asked, attempting to ascertain Schachman's position.
"Saying it may be inappropriate when it's killing kids by the hundreds of thousands is false and misleading," Schachman replied. "It is inappropriate."
Schachman insisted that the evidence of harm caused by exposing children to tobacco imagery is the key factor in this case. But Seeborg disagreed.
"I think it's more about what is being represented in this certification mark," Seeborg replied.
Schachman forcefully argued that the movie industry cannot hide behind free speech protections to escape culpability for being dishonest with parents about the content of films to which it assigns ratings.
However, Seeborg did not appear particularly persuaded that the PG and PG-13 ratings amounted to an intentional effort to mislead consumers.
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