A federal judge in San Francisco has snuffed out a California dad’s attempt to force Hollywood to give R ratings to protect children from seeing movies that depict what he says is the deadly habit of smoking.

But the health challenge, quashed for now as a First Amendment protection for the film industry, still smolders.

An R rating for movies with smoking?

Timothy Forsyth, a father of two youngsters, ages 12 and 13, went to court carrying a message for product-placement conscious filmmakers: Smokers don’t grow old, they die young. But his lawsuit over ratings for movies showing smoking and tobacco products pitted him swiftly against the powerful Motion Picture Association of America (MPAA) and the National Association of Theatre Owners.

Forsyth asserted that scientific research shows that pro-tobacco imagery in films rated G, PG, and PG-13 could be responsible for 200,000 children each year picking up the nasty habit of smoking cigarettes, which is blamed for 64,000 Americans’ deaths annually.

Hollywood disagreed and invoked California’s anti-SLAPP statute, arguing the “Strategic Lawsuit Against Public Participation” laws were designed for cases like Forsyth’s that could restrict constitutionally protected free speech. U.S. District Judge Richard Seeborg agreed, dismissing Forsyth’s attempt to hold major film studios and theater owners legally responsible for tobacco-related health damages estimated at more than $20 million. The judge also declined to consider the request for a federal court order compelling the Motion Picture Association of America to assign a minimum R rating to films containing smoking scenes.

By failing to rate films with smoking in them appropriately, Forsyth’s suit asserted that the movie industry’s Classification and Rating Administration (CARA) engages in conduct amounting to, among other things, negligence, misrepresentation, breach of fiduciary duty, and false advertising. But the court agreed with the MPAA, which argued that CARA ratings are advisory to parents and simply suggest  what content may be appropriate for young people.

First Amendment protection

The MPAA and its co-defendants relied on the First Amendment and the California anti-SLAPP statute as their defense. They told the court that ratings are protected speech, and they and films are issues of public interest, conversations about which also merit legal protections. Seeborg strongly agreed, saying “[u]doubtedly, movie ratings are made ‘in connection with an issue of public interest’ ” as movies are made and released for public consumption. He noted that films themselves represent a protected method of free expression “and the ratings help advance that free speech by giving potential audiences an indication of a movies content or suitability.”

The judge addressed Forsyth’s assertion that the ratings should receive lesser protection as commercial speech. After discussing the ratings’ “certification mark,” filed with the U.S. Patent and Trademark Office and governed under 15 U.S.C. § 1127, the judge observed that “some certification trademarks undoubtedly are merely representations of the characteristics of products and therefore arguably only commercial speech outside the purview of anti-SLAPP and entitled to only limited First Amendment protections.” Unfortunately for Forsyth, the judge also held that “CARA’s marks serve a different purpose and arise in a different context.”

He said the ratings were merely advisory to parents, and “the underlying ‘product’ — films — are not mere commercial products, but are expressive works implicating anti-SLAPP concerns and plainly entitled to full First Amendment protection.”

The judge said Forsyth had failed to present a cause for which the court could offer relief, because he insufficiently marshaled facts or provable evidence. He had not shown that the MPAA and the other defendants had legal duties to him or his children, had created a public nuisance, or how the MPAA’s actions would be “specially injurious.”

Tobacco’s health harms

Lest leaders in Tinseltown exult excessively, however, about the court tossing Forsyth’s lawsuit, the judge said he could amend his complaint and resubmit it.

His arguments also echo those propounded by no less than the public health experts at the esteemed University of California, San Francisco medical school, which, on its web site on the issue, also details the long history of Hollywood and its glamorizing of tobacco use. The federal Centers for Disease Control and Prevention (CDC) also has given prominence to efforts to curb positive tobacco depictions in film, arguing these contribute to kids, especially, taking up smoking.

At the same time, Hollywood is under increasing pressure to increase its per-film revenues and product placements, including depictions of tobacco products, contribute significantly to the industry’s profitability.

Still, anti-tobacco advocates have fought against smoking in this country for decades. The research now is inarguable that tobacco contributes to cancers, heart disease, and an array of health harms. Smoking is on a steep decline in the United States, with the tobacco industry propped up the possibility that young people, enamored by e-cigarettes or vaping, as well as hookah use, may get hooked in the future. Even in the developing world, though, notably in the huge movie market of China, concern grows by the day about tobacco use’s health harms.

Win a battle, lose a war?