Film Censorship in the USA
Waiting for a Miracle: Post-Miracle Decision Film Censorship and Ratings
In 1952, the Supreme Court of the United States declared in the so-called Miracle Decision, "expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments." Effectively applying the term art to the definition of motion pictures, this was a complete reversal of 1915 decision of the court, saying that the major studio profit-driven films are "not to be regarded as part of the press of the country or as organs of public opinion within the meaning of freedom of speech and publication."
Miraculous, indeed, the 1952 decision seems for those in favor of a less restricted film industry. One must remember, however, that the Miracle Decision is so called because the film involved in the suit was The Miracle, by Roberto Rossellini. The result of the suit is less clearly miraculous, as the industry's self-regulation was hardly more efficient and less restrictive than the state-by-state censorship laws in place before the Miracle Decision. After the institution of the Hays Code and, later, a series of successful non-approved films, the Motion Picture Association of America (MPAA) needed a miracle to put any sort of restraint of filmic representation.
What followed was the highly popular implementation of a ratings system, which would seem to be the end of the turmoil over film censorship; filmmakers could make films however they wished, then audiences would be informed on the content of the film via a rating. Jack Valenti, the head of the MPAA from the time of the institution of film ratings in 1968 until 2004, said of his new system, "adults would be at liberty to make their own movie-watching choices." Indeed, Valenti's simple description seems to be miraculously positive. In practice, the film rating system became similarly oppressive to the Production Code era and perhaps made artistic subversion even more difficult if profit or wide viewing is desired.
 “Joseph Burstyn, Inc. V. Wilson - 343 U.S. 495 (1952),” Justia US Supreme Court Center, accessed November 24, 2012, http://supreme.justia.com/cases/federal/us/343/495/case.html.
 “Mutual Film Corp. V. Industrial Comm’n of Ohio - 236 U.S. 230 (1915),” Justia US Supreme Court Center, accessed December 2, 2012, http://supreme.justia.com/cases/federal/us/236/230/case.html.
 Jack Valenti, This Time, This Place: My Life in War, the White House, and Hollywood, 1 Reprint (Three Rivers Press, 2008), 304.
The ratings system - did it save the film industry?
The MPAA provides a historical summary of the events leading up to the current ratings system. Summing up the limbo period between the abolishment of the old Hays Production Code and the establishment of the current system, the MPAA says, "the choice was simple: Return to government sensorship [sic] or come up with a system that works for all stakeholders." Indeed, government censorship had been a path traveled before with poor results.
Moreover, who would better protect film than the industry itself? These oft-used arguments are great, but only if one ignores the past.
First, a valid question to ask is whether a system that includes subversive films does not work for all stakeholders. Several films succeeded in making money and gaining popularity without the MPAA seal: Blowup (1966), Some Like it Hot (1959), Otto Preminger's The Moon is Blue (1953), The Man with the Golden Arm (1955), Anatomy of a Murder (1959), and several more.
These successes, without the approval of the Code, along with several others that received exceptions from the Code led to its demise. They showed that the movie-going public had no qualms about seeing films with more objectionable material and moreover that those same people did not see the MPAA as a reliable authority on morality or decency.
When Jack Valenti took over and undid the Production Code, he instituted a temporary system of classification that labeled offending films as "Suggested for Mature Audiences." This system largely resulted in some sort of censorship anarchy, where very little went unapproved. The Motion Picture Herald wrote of it that "everything expressly prohibited in the Production Code apparently is to be approved, one way or other."
Given the description from the MPAA, one would have expected these years to have been dismal for the film industry. Instead, before the introduction of ratings in 1968, iconic and highly-profitable films like The Jungle Book, The Graduate, Funny Girl, 2001: A Space Odyssey, Guess Who's Coming to Dinner, and Bonnie and Clyde found astounding success, making the roughly two years of time between the end of the Hays Code and the new ratings system seem highly successful, at least on par with the regulated industry previously and afterwards.
Based on overall market analyses, the industry was in a period of growth during that period which seems unimpeded by this turbulence in film censorship. Artistically speaking, several of the aforementioned films are hailed by the public as well as publications like Sight and Sound as all-time greats. Given that the industry was at worst unperturbed by a sudden lack of censorship, the reason for the implementation of ratings must have been a necessary fear of government interference.
 “How It All Began” (The Classification & Rating Administration, 2012), http://www.filmratings.com/filmRatings_Cara/#/about/.
 Leonard J. Leff and Jerold L. Simmons, The Dame in the Kimono: Hollywood, Censorship, and the Production Code (University Press of Kentucky, 2001), 270.
 Ibid., 271.
 Gerben Bakker, “The Economic History of the International Film Industry,” EH.net Encyclopedia, February 10, 2008, http://eh.net/encyclopedia/article/bakker.film.
Did Jack Valenti really save Hollywood?
Does the US government really want to censor movies?
The source of this fear is unclear. The mouthpiece for it was their chief, Jack Valenti. Even long after the implementation of the ratings system, Valenti continued to fear the government; after the Columbine shootings in 1999, he continued to paint a picture in which the film industry must protect the nation from objectionable content for fear that the government would do so otherwise. The industry, during the period between the Hays Code and the ratings system, became alarmed at minor court decisions, like Ginsburg v. New York, which allowed the government to restrict access to graphic sexual material from children and not adults.
Fearing that such cases would lead to the government keeping children out of the cinema entirely, Valenti and the MPAA pushed for the rating system as a sort of pre-emptive compromise. The Miracle Decision, which enabled the industry to regulate itself without fear of the government, never felt so miraculous due to this prevailing fear in the face of no real evidence.
While sometimes things are not as clear as a single Supreme Court decision, scholar Dotty Hamilton offers, "if you look at the Supreme Court decisions in the 1950s and 60s, there is no real threat of government censorship." First amendment lawyer Martin Garbus adds that child pornography and similarly illegal onscreen acts would be the only ones at peril for government censorship.
As time went on and opposition to the ratings increased, courts continued to rule against any suggestion that the government would get involved in rating motion pictures. In 1984, a judge ruled that the First Amendment protects the rating system from government interference while simultaneously admitting that the ratings system should have an "overhaul," a strangely evaluative comment for a judicial decision. The First Amendment seems adequate protection from government harm, given the state of judicial interpretation.
However, a ratings system is not an inherently harmful thing and therefore these arguments are moot if the system is applied in a way that is deemed fair by most parties involved.
 Lorenza Munoz, “Filmmakers Discuss Movie Violence, Censorship Concerns: [National Edition],” Los Angeles Times (Los Angeles, Calif., United States, June 6, 1999), sec. Sports; PART- NB; Metro Desk.
 Leff and Simmons, The Dame in the Kimono, 273–4.
 Kirby Dick, This Film Is Not Yet Rated Documentary, 2006.
 “Judge Upholds X Rating For Almodovar Film - New York Times,” New York Times, accessed December 3, 2012, http://www.nytimes.com/1990/07/20/movies/judge-upholds-x-rating-for-almodovar-film.html.
A crash course through film ratings (warning: some graphic content)
The reach of X-rated films
Can you recall seeing a movie that was X/NC-17 rated?
One film almost solely undermined the X, until...
The first high profile film to receive an X-rating was John Schlesinger's 1969 Midnight Cowboy. It is commonly agreed that in 1969, the ratings were too poorly understood to cripple a film. Midnight Cowboy went on to win the Best Picture at the Oscars, perhaps the most universally respected evaluative body among moviegoers and critics. The X-rating was received due to "implying a homosexual act," apparently too obscene for the fledgling ratings board.
While one must hesitate to give too much authority to the Academy Awards, it is safe to say that Midnight Cowboy was not "without any kind of artistic merit," like the MPAA rater said of X-rated films. After the smashing success in the box office and notable recognition by the Academy, the MPAA re-rated the film R. Considering the film had more or less completed its run, the move seemed puzzling. In retrospect, it seems that the MPAA did not want their ratings discredited by having a film with such popularity and proclaimed merit to be the recipient of their harshest rating.
The letter "X" can knock your film away from profitability, wide viewership
The X rating, which was hardly worth earning given the fact that films with the rating could not bear the MPAA seal, was tantamount to being unrated. With eager cooperation from NATO theaters and movie rental giants, X-rated films (later known as NC-17) have a nearly impossible time reaching a wide distribution outside of art houses. As the film ratings system solidified its hold, making an X/NC-17 film profitable has become nearly impossible.
Even some of the most ambitious efforts at wide release for these films have only reached about half the screens that a typical R release would have. Top theater chains like AMC and Cinemark have always vowed not to show X/NC-17 films, while DVD giants like Blockbuster and RedBox have always refused to carry any NC-17 films. Likewise, television and radio advertisement agencies generally refuse to promote such films.
An X/NC-17 rating from the MPAA achieves a virtual blackball from the industry, save for locations that attract a type of viewer that does not pay attention to the ratings. The MPAA gives the ratings, but it is important to note that they do not dictate to the theaters and home video distributors how to read them.
The issue is an industry one and the focus is on the MPAA primarily due to their leadership position and ability to affect change and not necessarily their sole culpability. Since the MPAA ratings are voluntary, many films that were informed that they would receive an X/NC-17 have chosen to go unrated, instead. While there remain significant hurdles to profit-making for an unrated film, organizations with anti-X policies can take the opportunity to individually review unrated films.
The X-rating immediately took on an extremely negative connotation. Unfortunately for the MPAA, they did not trademark this rating right away, despite having trademarked each of the other ratings. Some say this may have been an act of bad faith, but it has not been a train of thought that has been well-pursued. Immediately, the pornography industry appropriated the X for their own use, often one-upping themselves with the "XXX." It was not until 1990 that the MPAA changed the X to NC-17, hoping to undo some of the stigma that the pornography-X-rating association had done, which has been largely unsuccessful since NATO and advertisers have not changed the way they treat these films.
The standard, whether intended or not, became that audiences expected that X-rated films were smut. The Code and Rating Administration's (the ratings branch of the MPAA) Jacqueline Bouhoutsos viewed X-rated films as "garbage, pictures that shouldn't have been made for anybody, films without any kind of artistic merit, poor taste, disgusting, repulsive." For an organization originally meant to further the interests of the film industry and headed by a man that wanted unrestricted film choices for adults, it seems strange to attach such a negative description to the ratings it issues. On the other hand, perhaps the films that receive X-ratings would indeed be that bad and the rating would be thusly informative.
 Steven Zeitchik, “High Hopes, Low Notes for Film World’s NC-17 Rating,” Los Angeles Times, August 18, 2012, http://articles.latimes.com/2012/aug/18/entertainment/la-et-mn-ca-nc-17-20120819.
 “First Major Film With an NC-17 Rating Is Embraced by the Studio - New York Times,” New York Times, accessed December 3, 2012, http://www.nytimes.com/1995/07/21/movies/first-major-film-with-an-nc-17-rating-is-embraced-by-the-studio.html.
 Zeitchik, “High Hopes, Low Notes for Film World’s NC-17 Rating.”
 “First Major Film With an NC-17 Rating Is Embraced by the Studio - New York Times.”
 “What a Shame,” Boise Weekly, accessed December 3, 2012, http://www.boiseweekly.com/boise/what-a-shame/Content?oid=2554267.
 “Bolero evades X-rating in U.S.,” The Globe and Mail (Toronto, Ont., Canada, August 31, 1984).
 Charles E. Ramos, “Miramax Films Corp. Et Al. V. Motion Picture Association of America, Inc.” (Supreme Court of New York, July 19, 1990), FindACase, http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19900719_0049262.NY.htm/qx.
 Leff and Simmons, The Dame in the Kimono, 281.
 Ibid., 274.
 “LANDMARKS IN RATINGS DEBATE: [Home Edition],” Los Angeles Times (pre-1997 Fulltext) (Los Angeles, Calif., United States, June 21, 1990), sec. Calendar; PART-F; Entertainment Desk.
 Leff and Simmons, The Dame in the Kimono, 274.
 Russell Smith, “Ratings: `Midnight Cowboy’ to `Bad Lieutenant’,” The Salt Lake Tribune (Salt Lake City, Utah, April 1, 1994), sec. DayBreak-Calendar.
Will we see another Midnight Cowboy?
Films without R or lower ratings don't make money
From 1995 to 2012, NC-17 rated films account for 0.04% of the market share; when combined with unrated films, they reach just 0.96% of the market share, averaging a gross of around $800,000, opposed to the average $15,000,000 for R rated films and $42,000,000 for PG-13. Only 21 films in that time period have accepted the rating and one assumes that many of the 2,279 unrated films released without a rating decided to forgo the NC-17 rating. Above all else, this is the result of the routine of any profit-driven film to negotiate with the Ratings Board for an R, cutting whatever parts necessary.
 “Top-Grossing MPAA Ratings 1995 to 2012” (Nash Information Services, LLC, 2012), http://www.the-numbers.com/market/MPAARatings/.
The ratings system can prevent foreign competition, too.
One thing that the film ratings system does do especially well for investors is help prevent foreign competition. With the exception of very few international productions (The Artist, a French-produced film comes to mind, though it gave censors little to worry about), foreign films do not consult the MPAA during the production of their films because they have domestic audiences to worry about before American distribution becomes a reality. Therefore, when it comes time to ship foreign movies into the USA, their finished product better be up to par for the censors.
Pedro Almodóvar, one of Europe's finest all-time directors, faced serious issues when distributing his Tie Me Up! Tie Me Down!, which received the dreaded X-rating. When Almodóvar and his American distributor, Miramax, sued the MPAA, the judge claimed that the entire system was in need of an overhaul before resigning to the fact that the government could not pass judgment on the Ratings Board's findings.
Almodóvar's rage was not at just the standards of the MPAA, but also its inconsistency. Almodóvar aptly finds the ratings to be apparently anti-sexuality, anti-foreign, anti-independent, but more importantly pro-MPAA member studio. The pattern that began by granting Midnight Cowboy the R-rating had turned into what seemed to independents like Almodóvar and others to be a body that protected its member's interests. Of the irritating inconsistencies that one encounters when investigating the MPAA ratings, this one makes the most sense.
Of course the MPAA would give preferential treatment to its member studios, especially when the raters regularly meet with studio executives and the appeals board is composed of those studio executives. Beyond that, making significant hurdles for foreign films to reach domestic audiences makes sense. American audiences see few enough foreign films that they will likely not make great efforts to find foreign films when they are not promoted and distributed widely.
Giving X ratings to benign films like Tie Me Up! just serves to help dumb down the palates of the American audience. Judge Ramos, presiding over the Tie Me Up! case, offered very astute observations of the ratings process as a complete outsider. Before his ultimately pro-MPAA ruling, he said,
"the manner in which the MPAA rates all films, not just 'Tie Me Up! Tie Me Down!' causes this court to question the integrity of the present rating system."
On the note of the Ratings Board being far more lenient in depictions of violence than sex and how that lacks any apparent founding in the well-being of the children the MPAA says they protect, he says,
"the industry that profits from scenes of mass murder, dismemberment, and the portrayal of war as noble and glamorous apparently has no interest in the opinions of professionals, only the opinions of its consumers."
The system, according to everyone but Jack Valenti, his successor Chris Dodd, and those on MPAA payroll, is and has been broken.
 “Judge Upholds X Rating For Almodovar Film - New York Times.”
 Kevin Sandler, The Naked Truth: Why Hollywood Doesn’t Make X-rated Movies (Rutgers University Press, 2007), 101.
 Dick, This Film Is Not Yet Rated.
 Ramos, “Miramax Films Corp. Et Al. V. Motion Picture Association of America, Inc.”
Information is not dangerous or problematic. For years, parents have told research pollsters that they prefer some sort of ratings system to nothing at all. There is reason to be hesitant, however, because there is no such thing as unbiased information.
On the other hand, there can be unreasonably biased or useless information and it should not shock someone that the MPAA would be a source of the latter sort of information, given its composition. While one can shrug their shoulders and claim to be unaffected by film ratings, that is a short-sighted view.
The movies one will hear about through conventional marketing are regulated almost entirely through MPAA ratings. NC-17 or unrated films rarely find popularity outside of small groups of cinephiles or niche audiences, and this very well may have little to do with their merit. This is the difference between innocently useless information (the Catholic Church offers a rating service that one may see as a qualifier for this category) and the MPAA's manipulation of the industry through film ratings.
Judge Ramos sums it up best:
". . .the rating system's categories have been fashioned by the motion picture industry to create an illusion of concern for children, imposing censorship, yet all the while facilitating the marketing of exploitive and violent films with an industry seal of approval."
 Bob Thomas, “Guide for Parents Goal of Movie Ratings,” The Palm Beach Post (Palm Beach, June 18, 1981).
 Ramos, “Miramax Films Corp. Et Al. V. Motion Picture Association of America, Inc.”