Could Tennessee criminalize a movie theater letting a minor watch an R-rated film?

Subject

Opinion No. 13-101, Constitutionality of Criminal Statute Regarding Admission of Minors to Movies, December 6, 2013

Plain-English summary

Sen. Mark Norris asked whether Tenn. Code Ann. § 39-17-907(b) was constitutional under the First Amendment. The AG had to answer in two parts because the statute was substantially rewritten mid-question by Chapter 459 of the 2013 Public Acts.

The pre-2013 version was unconstitutional. It required theaters showing two or more films to "maintain adequate supervision of the customers to prevent minors from purchasing a ticket or admission pass" to a "G" or "PG" movie and then watching an "R" or "X" movie. Violation was a Class A misdemeanor. The defect: the statute incorporated by reference the MPAA's private, voluntary rating system, converting that private classification into a state-imposed criminal standard. Several problems followed:

• State action over a private classification. When Tennessee criminalized failure to enforce MPAA ratings, it adopted the MPAA's content judgments as government action, triggering First Amendment scrutiny. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), recognized movies as protected speech.
• Strict scrutiny applies. Because the statute imposed content-based burdens on protected speech, it had to advance a compelling interest and be narrowly tailored. Brown v. Entm't Merch. Ass'n, 131 S. Ct. 2729 (2011), invalidated California's "violent video game" labeling law on similar grounds, holding that "minors are entitled to a significant measure of First Amendment protection."
• Not narrowly tailored. Multiple federal courts had already invalidated state and local laws that adopted MPAA ratings as government standards. Swope v. Lubbers, 560 F. Supp. 1328 (W.D. Mich. 1983) ("the Motion Picture ratings may not be used as a standard for a determination of constitutional status"); Borger v. Bisciglia, 888 F. Supp. 97 (E.D. Wis. 1995); Engdahl v. City of Kenosha, 317 F. Supp. 1133 (E.D. Wis. 1970); Motion Picture Ass'n of Am. v. Specter, 315 F. Supp. 824 (E.D. Pa. 1970); DPR, Inc. v. City of Pittsburg, 953 P.2d 231 (Kan. Ct. App. 1998).
• The MPAA ratings cited in the statute were also out of date. The statute referenced "X," which the MPAA had replaced with "NC-17," and didn't mention "PG-13" at all.

The post-Chapter 459 rewrite is facially constitutional. The new § 39-17-907(b) reads:

No minor under the age of eighteen (18) years old may be admitted to a movie theatre if the movie has been found to be "harmful to minors" pursuant to § 39-17-901. It is a deceptive practice under title 47, chapter 18, part 1, to advertise or promote a motion picture as having a rating other than the rating that has been assigned to it.

This works under the First Amendment because:

• "Harmful to minors" is a legal standard tied to obscenity. Tenn. Code Ann. § 39-17-901(6) defines "harmful to minors" using the Miller v. California obscenity factors adapted for minors: prurient appeal, patent offensiveness to adult community standards for minors, and lack of serious literary, artistic, political, or scientific value for minors. The Tennessee Supreme Court read the term in Davis Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn. 1993), to require a narrowing construction that captures only material obscene as to a reasonable seventeen-year-old. Obscene speech receives no First Amendment protection.
• The advertising provision is a legitimate consumer-protection rule. Requiring that a movie advertised under one rating actually have that rating prevents fraud and confusion. SNPCO, Inc. v. City of Jefferson City, 363 S.W.3d 467, 472 (Tenn. 2012); Epstein v. State, 211 Tenn. 633, 366 S.W.2d 914 (1963). It does not regulate speech content, only deceptive promotion.

The AG limited the analysis to facial constitutionality. "As-applied" challenges (a particular movie that's allegedly not actually harmful to minors, a particular theater operator) would have to be litigated on their own facts.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Chapter 459 of the 2013 Public Acts replaced the prior version of § 39-17-907(b) outright. The current text of § 39-17-907 should be confirmed against the Tennessee Code before treating this opinion as describing operative law. The federal First Amendment doctrine and the Davis Kidd Booksellers narrowing construction remain influential.

Background and statutory framework

MPAA ratings. The MPAA is a trade association whose Classification and Ratings Administration assigns voluntary ratings (G, PG, PG-13, R, NC-17). National Association of Theater Owners members enforce them as a matter of trade practice, not legal compulsion. The system is private.

The pre-2013 statute. Tenn. Code Ann. § 39-17-907(b) (2010) effectively turned an MPAA "G/PG → R/X" ticket switch into a Class A misdemeanor for the theater operator. The opinion observed that this took a private, voluntary classification and made it state-mandated criminal liability without statutory definition of obscenity-as-to-minors.

State action doctrine. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 718 (Tenn. 1997), reaffirms that constitutional guarantees restrain government conduct, not private conduct. The pre-2013 statute imported the MPAA's private content judgment into state criminal law, making First Amendment scrutiny apply.

Strict scrutiny for content-based laws. Brown v. Entm't Merch. Ass'n (violent video games) is the closest analogy. The Supreme Court rejected a content-based ban on sale of violent video games to minors. Minors retain First Amendment protection except in narrow, well-defined circumstances (obscenity is the main exception).

"Harmful to minors" standard. Tenn. Code Ann. § 39-17-901(6): material with prurient appeal to minors, patently offensive to community standards for what is suitable for minors, and lacking serious value for minors. This matches Miller's obscenity test adjusted for the minor audience. Davis Kidd Booksellers held the Tennessee version is susceptible to a narrowing construction that aligns with constitutional obscenity-as-to-minors law.

Prior restraints. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975), notes that prior restraints on speech are presumptively unconstitutional. The post-statute punishment regime in § 39-17-907(b) (pre and post amendment) is not a prior restraint, but is still subject to strict scrutiny when content-based.

Police powers. Tennessee retains police powers to regulate businesses for the benefit of the public and to prevent fraud. SNPCO, Inc.; Epstein.

Federal/state incorporation. The First Amendment applies to states through the Fourteenth Amendment Due Process Clause. Duncan v. Louisiana, 391 U.S. 145 (1968).

Common questions

What was the actual problem with the old statute?

It told theaters: enforce the MPAA's voluntary ratings or face a state misdemeanor. The state had no constitutional way to enforce a private trade association's content judgments. If Tennessee wanted to keep minors away from certain films, it had to define the standard itself (as "harmful to minors" tied to obscenity), not adopt the MPAA's.

Can a theater still enforce MPAA ratings as a business matter?

Yes. The opinion is about whether the state can criminalize failure to enforce them. A theater (or a theater chain) can voluntarily refuse to sell tickets to minors for R or NC-17 films. That's a private business decision, not state action.

What does "harmful to minors" mean in practice?

Roughly, material that would be obscene if measured against what's suitable for minors: explicit sexual content with no serious value, etc. Davis Kidd Booksellers gives the standard a narrowing construction so that mainstream Hollywood movies wouldn't qualify even if rated R for violence or language.

Is the advertising provision really separate?

Yes. Requiring a movie advertised as "PG" to actually be PG (not really NC-17 in disguise) is a deceptive-trade-practice rule under Tenn. Code Ann. title 47, ch. 18, pt. 1. It's about consumer protection, not speech.

Can a parent take a 17-year-old to an R-rated movie under the post-2013 statute?

The post-2013 statute bars admission of minors to a movie "found to be harmful to minors." If the movie hasn't been found harmful to minors under § 39-17-901, the statute doesn't apply. The MPAA's R rating, by itself, doesn't trigger the statutory definition.

Citations

Constitutional: U.S. Const. amends. I, XIV. Statutory: Tenn. Code Ann. §§ 39-17-901, 39-17-901(6), 39-17-907(b), 39-17-907(c); title 47, ch. 18, pt. 1 (Tennessee Consumer Protection Act); 2013 Tenn. Pub. Acts ch. 459. Cases: Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); New Riveria Arts Theatre v. State ex rel. Davis, 219 Tenn. 652, 412 S.W.2d 890 (1967); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); Brown v. Entm't Merch. Ass'n, 131 S. Ct. 2729 (2011); Erznoznik v. Jacksonville, 422 U.S. 205 (1975); Stein v. Davidson Hotel Co., 945 S.W.2d 714 (Tenn. 1997); Blum v. Yaretsky, 457 U.S. 991 (1982); Naoko Ohno v. Yuko Yasuma, 723 F.3d 984 (9th Cir. 2013); Ghaith v. Rauschenberger, 778 F. Supp. 2d 787 (E.D. Mich. 2011); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994); Swope v. Lubbers, 560 F. Supp. 1328 (W.D. Mich. 1983); Borger v. Bisciglia, 888 F. Supp. 97 (E.D. Wis. 1995); Engdahl v. City of Kenosha, 317 F. Supp. 1133 (E.D. Wis. 1970); Motion Picture Ass'n of Am. v. Specter, 315 F. Supp. 824 (E.D. Pa. 1970); DPR, Inc. v. City of Pittsburg, 953 P.2d 231 (Kan. Ct. App. 1998); Davis Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn. 1993); SNPCO, Inc. v. City of Jefferson City, 363 S.W.3d 467 (Tenn. 2012); Epstein v. State, 211 Tenn. 633, 366 S.W.2d 914 (1963); Duncan v. Louisiana, 391 U.S. 145 (1968); Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009). Prior AG opinions: Op. 13-55 (July 12, 2013); Op. 99-108 (May 10, 1999).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-101.pdf

Original opinion text

December 6, 2013

Opinion No. 13-101

Constitutionality of Criminal Statute Regarding Admission of Minors to Movies

QUESTION

Does Tenn. Code Ann. § 39-17-907(b) violate the First Amendment of the United States Constitution?

OPINION

The provisions of Tenn. Code Ann. § 39-17-907(b), prior to its amendment by Chapter 459 of the 2013 Tennessee Public Acts ("Chapter 459"), are unconstitutional on First Amendment grounds. The provisions of Tenn. Code Ann. § 39-17-907(b) as amended by Chapter 459 are facially constitutionally defensible.

ANALYSIS

After receipt of this opinion request, Tenn. Code Ann. § 39-17-907(b) was deleted and replaced in its entirety by Chapter 459 of the 2013 Tennessee Public Acts. The language of Tenn. Code Ann. § 39-17-907(b) prior to this amendment stated the statute's purpose was to ensure that various operators of motion pictures maintain adequate supervision to prevent minors from purchasing a ticket to a movie designated by the Motion Picture Association of America, Inc. ("MPAA") as appropriate for minors and then proceeding to view a movie deemed inappropriate for minors by the MPAA. Tenn. Code Ann. § 39-17-907(b) (2010). The statute specifically provided as follows:

Each theater at which two (2) or more motion pictures are shown in the same building shall maintain adequate supervision of the customers to prevent minors from purchasing a ticket or admission pass to a motion picture designated by the rating board of the Motion Picture Association of America by the letter "G" for general audiences or "PG" for all ages, parental guidance advised, and then viewing a motion picture designated "R" for restricted audiences, persons under eighteen (18) years of age not admitted unless accompanied by parent or adult guardian, or "X," persons under eighteen (18) years of age not admitted.

Id. A violation of this subsection was a Class A misdemeanor. Tenn. Code Ann. § 39-17-907(c) (2010).

The 2013 amendment deleted the prior version of Tenn. Code Ann. § 39-17-907(b) and replaced it with the following language:

No minor under the age of eighteen (18) years old may be admitted to a movie theatre if the movie has been found to be "harmful to minors" pursuant to § 39-17-901. It is a deceptive practice under title 47, chapter 18, part 1, to advertise or promote a motion picture as having a rating other than the rating that has been assigned to it.

2013 Tenn. Pub. Acts ch. 459, § 1. See also Tenn. Code Ann. § 39-17-907(b) (2013 Supp.). This provision became effective on May 20, 2013, the date it was signed by the Governor. See 2013 Tenn. Pub. Acts ch. 459, § 2. The term "harmful to minors" is defined by Tenn. Code Ann. § 39-17-901 as follows:

(6) "Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse when the matter or performance:

(A) Would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful or morbid interests of minors;

(B) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and

(C) Taken as whole lacks serious literary, artistic, political or scientific values for minors.

Tenn. Code Ann. § 39-17-901(6). Violation of Tenn. Code Ann. § 39-17-907(b) as amended by Chapter 459 is a Class A misdemeanor. Tenn. Code Ann. § 39-17-907(c) (2013 Supp.).

The MPAA referenced in the prior version of Tenn. Code Ann. § 39-17-907(b) is a trade association having as members producers and distributors of motion pictures, home video, and television programs. MPAA members, together with "the overwhelming majority of filmmakers," agree to submit their theatrically released movies for rating to the Classification and Ratings Administration. Ratings are assigned by a board of parents who consider such factors as violence, sex, language and drug use and then assign a rating they believe the majority of American parents would give a movie. The ratings are as follows: "G"—General Audiences. All ages admitted; "PG"—Parental Guidance Suggested. Some material may not be suitable for children; "PG-13"—Parents Strongly Cautioned. Some material may be inappropriate for children under 13; "R"—Restricted. Children under 17 require accompanying parent or adult guardian; and "NC-17"—No one 17 and under admitted. Members of the National Association of Theater Owners, a trade association for owners and operators of motion-picture theater companies, agree to enforce the ratings by refusing to admit children to "R"-rated motion pictures unless they are accompanied by a parent or guardian and refusing to admit children to "NC-17"-rated motion pictures at all. See generally Richard M. Mosk, Motion Picture Ratings in the United States, 15 Cardozo Arts & Ent. L.J. 135 (1997).

The prior language of Tenn. Code Ann. § 39-17-907(b) in essence criminalized the failure of operators of theaters showing two or more motion pictures to adequately supervise minors to prevent those minors from viewing motion pictures deemed inappropriate under standards voluntarily adopted by the MPAA and its members. The enactment of this statute thereby converted a voluntary agreement by private individuals and entities into state action, triggering the protections of the United States Constitution. See Stein v. Davidson Hotel Co., 945 S.W.2d 714, 718 (Tenn. 1997); Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982); Naoko Ohno v. Yuko Yasuma, 723 F.3d 984, 992-94 (9th Cir. 2013); Ghaith v. Rauschenberger, 778 F. Supp. 2d 787, 791 (E.D. Mich. 2011), aff'd, 493 F. App'x. 731 (6th Cir. 2012); Tenn. Att'y Gen. Op. 13-55, at 2 (July 12, 2013).

The "liberty of expression" by means of motion pictures is protected speech under the First Amendment, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952); New Riveria Arts Theatre v. State ex rel. Davis, 219 Tenn. 652, 658-59, 412 S.W.2d 890, 893 (1967), and prior restraints on speech are presumptively unconstitutional. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975). Laws that punish after the fact, but impose restrictions on the content of protected speech, are subject to strict scrutiny. Brown v. Entm't Merch. Ass'n, 131 S. Ct. 2729, 2738 (2011). Such laws are invalid unless justified by a compelling governmental interest and drawn narrowly to serve that interest. Id. In contrast, content-neutral restrictions that impose an incidental burden on speech are subject to an intermediate level of scrutiny and will be sustained if they further an important or substantial governmental interest and do not burden substantially more speech than is necessary to further that interest. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 662 (1994).

In Brown v. Entm't Merch. Ass'n, 131 S.Ct. 2729 (2011), the Supreme Court invalidated under the First and Fourteenth Amendments to the United States Constitution a California law imposing restrictions and labeling requirements on the sale or rental of "violent video games" to minors. In so holding, the Court reaffirmed 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 materials to them." Id. at 2735-36 (quoting Erznoznik v. Jacksonville, 422 U.S. 205, 212-13 (1975)). While the Court acknowledged that states possess "legitimate power to protect children from harm," the Court stressed that such authority "does not include a free-floating power to restrict the ideas to which children may be exposed." Id. at 2736.

By criminalizing the failure of a movie theater owner to ensure that a minor who purchases a ticket to a "G" rated movie does not then view a movie deemed inappropriate for minors, the State under the prior provisions of Tenn. Code Ann. § 39-17-907(b) was indirectly regulating what the State could not directly regulate under the First Amendment. These restrictions in effect used the State criminal code to require theater owners to adequately supervise minors in order to prohibit minors from viewing a broad category of films, either entirely or only with adult supervision, subject to the evolving standards of the MPAA and its members. Such regulation of minors' access to various motion pictures is neither "narrow" nor "well-defined" as required by the First Amendment.

Several courts have invalidated under a First Amendment analysis a government's attempt to adopt and impose MPAA voluntary standards as a governmental standard for the viewing of movies. Swope v. Lubbers, 560 F. Supp. 1328, 1334 (W.D. Mich. 1983); Borger v. Bisciglia, 888 F. Supp. 97, 100 (E.D. Wis. 1995); Engdahl v. City of Kenosha, 317 F. Supp. 1133, 1136 (E.D. Wis. 1970); Motion Picture Ass'n of Am. v. Specter, 315 F. Supp. 824, 826 (E.D. Pa. 1970); DPR, Inc., v. City of Pittsburg, 953 P.2d 231, 243 (Kan. Ct. App. 1998).

Chapter 459 essentially rewrote Tenn. Code Ann. § 39-17-907(b) to preclude the admission of minors under the age of 18 years old to a movie theatre if the movie has been found "harmful to minors" pursuant to Tenn. Code Ann. § 39-17-901 and to make it "a deceptive practice under title 47, chapter 18, part 1, to advertise or promote a motion picture as having a rating that has been assigned to it." 2013 Tenn. Pub. Acts 459, § 1. Both provisions of the revised Tenn. Code Ann. § 39-17-907(b) are constitutionally defensible. The Tennessee Supreme Court has held that the term "material harmful to minors," as defined by Tenn. Code Ann. § 39-17-901(b), is readily susceptible to a constitutional narrowing construction that applies only to materials deemed "obscene" and therefore "lack[ing] serious literary, artistic, political, or scientific value for a reasonable seventeen-year old minor." Davis Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 522, 528 (Tenn. 1993). See also Tenn. Att'y Gen. Op. 99-108, at 1 (May 10, 1999). Thus, within these parameters developed by the Tennessee Supreme Court, denying admission of a minor to a movie theatre showing a movie that has been found "harmful to minors" as defined by Tenn. Code Ann. § 39-17-901(6) is facially constitutionally defensible against a First Amendment challenge. Furthermore, the General Assembly pursuant to the State's broad police powers also may constitutionally prohibit theatre owners from advertising or promoting a motion picture as having a rating other than the rating that has been assigned to it. Here, the State is arguably requiring that a movie that has been rated is promoted or advertised as rated to ensure that the public has the correct information on a movie's rating and may act appropriately based on the reliability of that information. See SNPCO, Inc. v City of Jefferson City, 363 S.W.3d 467, 472 (Tenn. 2012); Epstein v. State, 211 Tenn. 633, 639, 366 S.W.2d 914, 917 (1963).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JAMES E. GAYLORD
Assistant Attorney General

Requested by:

The Honorable Mark Norris
State Senator
9 Legislative Plaza
Nashville, TN 37243