MPAA ratings and libraries

I was told this was available on the ILA Web
site but I couldn’t find it so I’ve posted it here as sent to the Alaska
Library Association e-list.

Movie Ratings Are Private, Not Public Policy
Deborah Caldwell-Stone, ALA Office for Intellectual Freedom

Over the years, questions have arisen concerning the application of the
Library Bill of Rights principles to specific library practices. One of the
first, a 1951 Peoria, Illinois, case involving films in the public library,
required the American Library Association (ALA) to clarify the application
of the Library Bill of Rights to nonprint materials. A recommendation by
the ALA Intellectual Freedom Committee and the Audio-Visual Board resulted
in the ALA Council’s adding an
Interpretive footnote explaining that the Library Bill of Rights applies to
all materials and media of communication used or collected by libraries.
More than fifty years later, these questions have resurfaced at the Cook
Memorial Public Library District. Members of the library board proposed
that the library use the Motion Picture Association of America (MPAA) movie
rating system to restrict minors’ access to movies. The following is an
excerpt from Deborah Caldwell-Stone’s recent presentation to that board on
this issue. Deborah is deputy director of the ALA Office for Intellectual
Freedom.

Over the past several months, advocates claiming to advance “family
values” and “community standards” have urged several local library boards to
adopt policies restricting minor patrons’ access to DVDs and videos rated R,
or Restricted, by the Motion Picture Association of America (MPAA).
Adoption of the MPAA ratings system as a means of restricting minors’ access
to certain films or videos raises significant legal concerns for public
libraries.

A Private and Voluntary Ratings System To understand the legal risks
involved, it is important to understand the role of the MPAA and the nature
of its ratings system. Despite public perception to the contrary, the MPAA
is not a government
entity, nor are its activities sanctioned by local, state, or federal
government. It is a private trade association whose members produce and
distribute motion pictures in theatres, on television, and by release on
videotapes and DVDs. As one of its services on behalf of its members, the
MPAA administers the Classification and Ratings Administration (CARA), the
organization responsible for awarding ratings to motion pictures. The MPAA
administers CARA as a means of giving parents advance information about a
film, so the parents can decide whether a film is appropriate for their
child.

A filmmaker who wants an MPAA rating affixed to his or her film submits
the film to CARA, whose reviewers watch the film and decide which rating is
appropriate – G, PG, PG-13, R, and NC-17. Ratings can be assigned based
upon certain criteria – the number of expletives used in the dialogue, or
the number of times a body part is exposed, or the number of murders or
injuries that take place within the film. Ratings can also be assigned
based on how the reviewer perceives the film as a
whole. Whatever the rating, it is meant to serve only as an informative
advisory for parents. An MPAA rating is not, and has never been, a legal
determination that a particular motion picture is “obscene,” or “obscene as
to minors,” or “harmful to minors.” Only a court of law can make that
determination.

The MPAA itself emphasizes that its ratings system is strictly voluntary
and has no force of law. No law requires a filmmaker to submit a film for a
rating, and no law requires a theatre or video dealer to follow the MPAA
ratings guidelines when selling movie tickets or DVDs. Those who
participate in the MPAA ratings system are doing so
voluntarily to provide a service to parents.

The Library as Government Agency Public libraries, as government
agencies, are bound by the requirements of the U.S. Constitution and the
Bill of Rights. In Board of Education of Island Trees v. Pico, the Supreme
Court affirmed that the FirstAmendment protects the library user’s right to
receive information in the public library. 1

Public libraries cannot restrict a user’s access to library materials on
the grounds that the content of the materials is somehow objectionable or
unsuitable. Rules and policies that restrict access to library materials
because of their content create a presumption that the library is engaging
in an unconstitutional prior restraint of constitutionally protected speech.
This presumption arises even when the library user is a minor, for minors
unquestionably possess First
Amendment rights. As the Supreme Court noted in Erznoznik v. Jacksonville,
“speech that is neither obscene as to youths nor subject to other legitimate
proscription cannot be suppressed solely to protect the young from ideas or
images a legislative body thinks unsuitable for them.”2 In addition,
restrictions on users’ access based on the content of library materials must
meet exacting requirements to pass constitutional muster. For adults, this
means a court must find that a film is obscene under the test set out in
Miller v. California.3

In the case of minors, such restrictions can only be enforced when a
court of law determines that a movie is “obscene as to minors” or “harmful
to minors” under Illinois law.4

When a library imposes restrictions on a user’s access to a film before a
court of law determines its legal status, the library, as a government
agency, must provide a means and an opportunity for a hearing on the
validity of the restriction at the earliest possible time.

A public library’s use of MPAA ratings as a means of restricting minors’
access to films fails to comply with any of these legal standards. The MPAA
candidly admits that its reviewers make no use of the tests for obscenity
imposed by state or federal law when they assign ratings to films.5

Instead, the reviewers employ imprecise, subjective, and frequently
changing criteria that provide no notice to the filmmaker or the viewer
regarding precisely what content is proscribed, or why. And when a public
library adopts the MPAA ratings to restrict minors’ access to certain films,
there is no means at all for judicial review of the prohibition. The public
library’s restriction on films represents a presumptively unconstitutional
prior restraint on speech. Public Institutions and Private Standards Don’t
Mix As a government agency, the public library is empowered to set policy
and create rules for the operation of the library by the authority granted
to the library’s board by state and local laws. And as a government agency,
its policies and implementation of rules are subject to review by the
legislature and the courts.

But when a library uses MPAA ratings to restrict users’ access to films,
it is delegating its power to make rules for the operation of the library to
a private, unregulated organization that is not subject to overview by a
court or legislature. By giving over the library’s authority to make policy
to a private organization – authority reserved by Illinois state law to the
library district and its board – the library can violate the Due Process
Clause, which assures citizens that every act taken by a government entity
is subject to proper checks and balances under the law.

Courts across the country have relied upon these constitutional standards
to invalidate the use of MPAA ratings as a means of restricting access to
films in a variety of contexts. Among the cases are Engdahl v. City of
Kenosha, which invalidated a Kenosha, Wis., ordinance using MPAA ratings to
prohibit minors from seeing certain films6 and Motion Picture Association of
America v. Specter, which invalidated a criminal statute penalizing theatres
that allowed minors to view films rated “not suitable for children” by the
MPAA.7

More recently, federal courts in Chicago and St. Louis invalidated local
ordinances that relied upon a private ratings system for video games to
regulate minors’ access to video arcades, reinforcing the principle it is
unconstitutional for a government entity to use private ratings systems to
restrict minors’ access to protected expression.8

Thus, any library choosing to use or enforce the MPAA ratings as a means
of restricting young people’s access to videos or DVDs in its collection
risks a significant constitutional challenge to their policy. Such
challenges may consume staff and board members’ time in court defending the
policy. In addition, as a government agency, the library runs a financial
risk in any lawsuit based upon the First Amendment and the Constitution.
Should the library lose the legal challenge to its use of the MPAA ratings
system, it can be required to pay the successful plaintiff an award of court
costs and attorneys fees. Such awards are authorized by Section 1983, the
federal law that grants citizens the right to sue the government when the
government violates their civil rights.

Ethics and the Law Restricting young people’s access to films, videos,
and DVDs is not only a legal issue for libraries and librarians; it is an
ethical issue, as well. Article V of the ALA’s Library Bill of Rights
unambiguously calls on libraries and librarians to support and defend the
young person’s right to freely access ideas and information in the public
library. The ALA statement “Free Access to Libraries for Minors: An
Interpretation of the Library Bill of Rights,” outlines the ethical
obligations of the library and the librarian in regard to youth, parents,
and access to library materials:

“Parents-and only parents-have the right and the responsibility to
restrict the access of their children-and only their children-to library
resources. Parents or legal guardians who do not want their children to
have access to certain library services, materials, or facilities, should so
advise their children. Librarians and governing bodies cannot assume the
role of parents or the functions of parental authority in the private
relationship between parent and child. Librarians and governing bodies have
a public and professional obligation to provide equal access to all library
resources for all library users.”9

Libraries are not strangers to the controversy over the use of the MPAA
ratings system to restrict access to films in a library’s collection. In
1989, in response to this controversy, the ALA Council adopted the
resolution, “Access for Children and Young People to Videotapes and Other
Nonprint Formats: An Interpretation of the Library Bill of Rights,” to
provide librarians with guidelines for addressing the issue:

“Policies which set minimum age limits for access to videotapes and/or
other audiovisual materials and equipment, with or without parental
permission, abridge library use for minors. Further, age limits based on
the cost of the materials are unacceptable. Unless directly and
specifically prohibited by law from circulating certain motion pictures and
video productions to minors, librarians should apply the same standards to
circulation of these materials as are applied to books
And other materials.

“Recognizing that libraries cannot act in loco parentis, ALA acknowledges
and supports the exercise by parents of their responsibility to guide their
own children’s reading and viewing. Published reviews of films and
videotapes and/or reference works which provide information about the
content, subject matter, and recommended audiences can be made available in
conjunction with nonprint collections to assist parents in guiding their
children without implicating the
library in censorship.”10

Use of the MPAA ratings system to restrict young people’s access to films
and videos is a violation of the Library Bill of Rights and an impermissible
prior restraint on free expression. Public libraries considering the use of
the MPAA ratings to restrict young people’s access to videos and DVDs should
instead turn to other, proven methods to guide young people’s choices in the
library. The library’s professional staff can be asked to create collection
development and
usage policies that are consistent with both professional ethics and the
law; acquire materials that provide parents with the resources and
information they need to guide their child’s choices; and develop programs
and workshops for young people that teach them the critical viewing and
thinking skills they need to make good judgments for a lifetime of reading
and viewing.

Footnotes:

1. Board of Education v. Pico, 457 U.S. 853 (1982).
2. Erznoznik v. Jacksonville, 422 U.S. 205 (1975).
3. Miller v. California, 413 U.S. 15 (1973).
4. Ginsberg v. New York, 390 U.S. 629 (1968).
5. Benjamin Svetkey, “Why Movie Ratings Don’t Work,” Entertainment
   Weekly, November 25, 1994.
6. Enghahl v. City of Kenosha, 317 F. Supp. 1133 (E.D. Wis. 1970).
7. Motion Picture Association of America v. Specter, 315 F. Supp. 824
   (E.D. Pa. 1970.) Other court decisions invalidating government entities’
   use of MPAA ratings include Swope v. Lubbers, 560 F.Supp. 1328
   (W.D. Mich. 1983) and Rosen v. Budco, 10 Phila. 112 (1983).
8. American Amusement Machine Association v. Kendrick, 244 F.3d 954 (7th
   Cir. 2001); see also Interactive Digital Software Association v. St. Louis
   County, 329 F.3d 954 (8th Cir. 2003).
9. “Free Access to Libraries for Minors: An Interpretation of the
   Library Bill of Rights,” American Library Association, 1991.
10. “Access for Children and Young People to Videotapes and Other
    Nonprint Formats: An Interpretation of the Library Bill of Rights,” American
    Library Association, 1989.