LEGISLATION

Arizona House Bill 2468: Allowing Government Enforcement of Industry Rating Systems

January 14, 2000

Hon. Barbara Leff, Chair

House Commerce Committee

1700 West Washington, House Wing

Phoenix, AZ 85007

Re: House Bill 2468

 

Dear Chairwoman Leff,

The members of Media Coalition believe that Arizona House Bill 2468 violates the First Amendment rights of children. The members of Media Coalition represent most of the publishers; booksellers; librarians; periodical distributors; recording, movie and game manufacturers; and video retailers in Arizona and the rest of the United States. They have asked me to explain their concern.

H.B. 2468 would impose a civil fine on any owner, agent or employee who sells, rents or allows admission to a viewing of a movie rated "R" or "NC-17" by anyone under 17. H.B. 2468 would also impose a civil fine on any owner, agent or employee who sells or rents a sound recording with a parental advisory sticker to anyone under 17.

While voluntary rating or labeling systems exist to help parents determine what is appropriate for their kids, a government-enforced rating system is unconstitutional. Courts in nine different states have ruled it unconstitutional to enforce the Motion Picture Association of America's rating system or to financially burden movies that do not carry an MPAA rating. MPAA v. Specter, 315 F. Supp. 824 (E.D. Pa. 1970), enjoined enforcement of a Pennsylvania statute that penalized exhibitors who showed movies unsuitable for family or children's viewing, as determined by CARA ratings. In Eastern Federal Corporation v. Wasson, 316 S.E. 2d 373 (S.C. 1984), the court ruled that a tax of 20% on all admissions to movies rated either "X" or unrated was an unconstitutional delegation of legislative power to a private trade association.

Further, while minors do not enjoy the protection of the First Amendment to the same extent as adults, the U.S. Supreme Court ruled that "minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected material to them." Erznoznick v. City of Jacksonville 422 U.S. 212-213 (1975). In the case of Ginsberg v. New York, the U.S. Supreme Court established a three-part test for determining whether material is "harmful to minors" and may therefore be banned for sale to minors. The mere presence of an "R" rating or a voluntarily affixed label alerting parents that a movie or recording might be inappropriate for minors is no basis for assuming that the recording meets the Ginsberg test. It is likely that most rated or labeled recordings would not meet the Ginsberg test for harmfulness. Therefore, a law imposing a fine for the sale or rental of such material would inevitably prevent minors from purchasing works they have a First Amendment right to possess.

Because it threatens the distribution of constitutionally-protected works, H.B. 2468 will be vulnerable to legal challenge if it is enacted. If the law is overturned, the state could be ordered to pay the plaintiffs' attorneys' fees.

Please protect free speech by rejecting H.B. 2468.

Thank you.

 

Sincerely yours,

 

David Horowitz

Executive Director

updated 1/14/00