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The documentary "This Film is Not Yet Rated" raises an interesting question: At one point in the film, during an interview, leading First Amendment attorney Martin Garbus comments that he'd actually rather have a government movie rating system than that of the Motion Picture Association of America (MPAA). (Ironically, the original cut of "This Film is Not Yet Rated" received an NC-17 rating from the MPAA - due to its inclusion of sexual scenes that had caused other films to get NC-17s -- and was ultimately released in theaters, true to its title, without a rating.)

Is Garbus correct that even government labeling would be better than the MPAA's system? And would a government movie labeling system, in any event, be immediately struck down as unconstitutional?

In this column, I'll consider these questions - drawing on some of the facts revealed by "This Film Is Not Yet Rated."

A Government Film Ratings System: Why, Surprisingly, It Might Be Constitutional

It may surprise readers to learn that when the Supreme Court last addressed a type of government movie rating system, it upheld it - and fairly recently, in 1987. I'll first discuss this precedent here, and in a later section, discuss the ramifications of this case for the idea that replacing the MPAA rating system with a government rating system might actually be an improvement.

(In 1915, in Mutual Film Corp. v. Industrial Comm'n of Ohio the Court allowed outright movie censorship -films were actually banned from being shown. Only many years later, in 1952 did the Court finally recognize that movie censorship violated the First Amendment, in Joseph Burstyn Inc. v. Wilson.)

The 1987 case that upheld a government movie ratings system was Meese v. Keene, and the Court's split was 5-3 (with Justice Scalia taking no part in the case). Justice John Paul Stevens - usually more liberal than this decision indicates - not only joined the majority, he wrote on its behalf.

The federal law at issue - which cited national security considerations - encompassed films deemed "foreign political propaganda." In the case before the Court, the law was applied to Canadian films on nuclear war and acid rain - frequently-covered topics that seem to have been quite harmless. The case arose because a California State Senator wanted to exhibit the films, but did not fancy the U.S. government tagging him with the label "propagandist" in the bargain, and so he sued.

Under the statute, the distributor of a film falling under the statutory definition was required to send a copy to the U.S. Attorney General; provide the recipient (for example, the exhibitor) a prescribed disclosure statement from the Attorney General's office; and label the film itself with a similar disclosure statement.

Interestingly, the Court seemed to see the system at issue as pro-free speech: Justice Stevens's opinion went so far as to cite - seemingly with approval - the district court's view that "this kind of disclosure serves rather than disserves the First Amendment." In addition, the majority opinion described the labels at issue as merely providing "additional disclosures that would better enable the public to evaluate the import of the propaganda."

Indeed, Justice Stevens even claimed the real anti-free-speech actor here was the U.S. district court, not the Congress that had passed the federal labeling statute: "Ironically," he wrote on behalf of the majority, "it is the injunction entered by the District Court that withholds information from the public. The suppressed information is the fact that the films fall within the category of materials that Congress has judged to be 'political propaganda.'"

Would the Current Court Overrule Meese v. Keene, If Given the Chance?

Would the current Supreme Court rule differently on this type of statute, or - more relevant for our purposes - on a more general statute that required movies to be labeled with a rating a government board had provided? It's unclear, but possible.

Simply as a matter of rough head-counting, the labeling system might seem to be in trouble. Of the original Court, only Justice Stevens, the author of the Meese majority, remains. The only dissenters in Meese were three famously liberal justices: Blackmun, Brennan, and Marshall. In contrast, in the current Court, there are quite a few very strong pro-First Amendment Justices, who span the political spectrum: For example, the moderate Justice Kennedy is strongly pro-First Amendment -- as, it seems, the conservative Justice Alito may also be. (In a prior column, I discussed one of Alito's First Amendment opinions as a federal appellate judge.)

However, even with what seems to be a quite strongly pro-First Amendment modern Court, the First Amendment issue is not easily resolved- for, as Justice Stevens saw, the line between government speech and government censorship must itself be carefully policed.

The government has the right to speak to the public, and indeed, must do so in order to function. In fact, if the President so chose, he could devote his entire State of the Union to criticizing movies he disliked -- without running afoul of the First Amendment. That is true even though the resulting stigma would doubtless convince some people not to see the movies he listed (though others would surely hasten to do so).

It's true that requiring privately-made movies to bear the government's label might raise a problem of First Amendment-prohibited "compelled speech": The idea would be that forcing the filmmaker to put the government's message on his or her movie (or its posters) would be akin to forcing someone to say the Pledge of Allegiance, or put a political bumper sticker on his or her car with which he or she disagreed. But it's possible the government could get around the problem with disclaimers making clear that the rating was its speech, not the moviemakers, or simply by publicizing its ratings to the public on posters (and through trailers) separate from those advertising the movies

Let's assume, for purposes of argument, that for these reasons, a movie ratings system would be upheld by the current Court. If so, would that system be superior to the MPAA system?

The MPAA's System: Anomalous Ratings and Anonymous Raters

Some problems with the MPAA's system are well-known: It is prudish about sex, yet has a very high tolerance for violence. (In "This Film is Not Yet Rated," director Darren Aronofsky points out, as well, an anomaly within the limited regulation of film violence: The kind of bloody violence that will repulse the viewer - such as is shown in "Saving Private Ryan" -- is more likely to be censored than violence-glamorizing bloodless shooting scenes.)

In addition, the MPAA system often fails to take context into account. For instance - as director Kimberly Peirce comments in "This Film is Not Yet Rated" - the MPAA threatened Peirce's brilliant "Boys Don't Cry" with an NC-17 rating based in part on the very rape scene that is directly central to the movie. In the scene, the protagonist is raped as a brutal "punishment" for what her attackers see as her impersonation of a boy. Here, the MPAA's rating seems especially senseless: How could it hurt a sixteen-year-old's psyche to see a depiction of a brutal hate crime, presented as exactly what it is? If anything, the film is rightly educational.

There is another aspect of the MPAA system that is less-discussed, but also a major problem: No one knows who the raters are or whether they have any qualification to do what they do. Moreover, there is no formal mechanism to ensure ratings are applied fairly, rationally, or consistently over time. Former MPAA head Jack Valenti said the raters are chosen to represent the views of the "average parent" - and are all parents themselves. But other than this, the raters' identities are secret. (Only the identity of the ratings board's chairperson is known.) The reason given is to supposedly avoid "outside influence" on the raters. However, as "This Film Is Not Yet Rated" points out, the raters are often in direct personal contact, in any event, with outside persons, at studios, who would be the ones most likely to want to influence the rating for a particular film.

Filmmaker Kirby Dick addressed this secrecy in a clever and direct way in "This Film Is Not Yet Rated" -- by putting private investigators on the job, to try to figure out who the current raters are. It turns out many no longer have children under 18 - calling into question their supposed "average parent" status for the purposes of MPAA raters - which aim to protect under-18 viewers.

Also, and troublingly, it seems quite likely that there is not a single gay person on the ratings board. (I say this based on photos in the documentary of the members with their opposite-sex spouses, and based on information in the documentary that many are married, in an era where gay marriage is still exceptionally rare.) This is all the more disturbing in light of the compelling case that "This Film Is Not Yet Rated" makes that the ratings board cracks down on gay sex far more than on straight sex - paralleling very similar scenes that led to an NC-17 rating when the sex was gay, but only an R rating when the sex was straight.

(It's high time for a gay parent to try to get on the MPAA ratings board, and sue for discrimination if he or she is turned away. Though it seems also to be something of a mystery how raters are chosen, since the board's chair's name is known, sending her an application ought to suffice.)

Dick and his private investigators did the same sleuthing work for the appeals board, too. He found out that the board, far from being unbiased, is composed of movie industry insiders -- and even two priests!

To comply with constitutional due process, a government movie ratings system would, of course, have to be very different. The members of the ratings board's, and appeals board's, names would be public. Appeals board members could not have a direct financial stake in the issues upon which they voted. Industry insiders would thus be barred, rather than composing what appears to be virtually the entire appeals board.

In addition, there would have to be clear standards, and mechanisms by which the standards were enforced, and consistency was assured. (Dick interviewed two former raters who indicated that, when they worked for the MPAA, there had been no formal rater training, nor any clear set of standards.)

Ultimately, then, it's sad to say, but First Amendment attorney Martin Garbus might be right: It's possible the MPAA's system may be so bad, it's actually worse than the system we might face if the federal government went into the movie labeling business. (In contrast, if each of the 50 states were to embark upon setting up its own labeling, the result would be such a headache for all concerned, even the MPAA's system might look good in comparison.)

However, this point speaks far more to the serious problems with the MPAA's system, than to any supposed merit of, or need for, federal government rating or labeling of movies.

The Best Solution: Simply Continue to Let People, Websites, and Groups Offer Their Own Ratings and Evaluations

In my opinion, the best possible system would be for government and industry to get out of the labeling business entirely, and simply allow private organizations and persons with particular policy focuses and preferences to voice their views on particular films.

Private lists of "family-friendly" films are very easy to find as it is, and unlike MPAA ratings, these lists often provide a specific analysis of why a film might, or might not, be inappropriate for children of particular ages. What will truly serve free speech is not biased boards and secret deliberations, but open discussion and the airing of views.