In news from my home state, filmmakers are peeved that the Utah Film Commission, a government body that provides “professional and timely consulting” for filmmakers producing movies in Utah, is denying monetary incentives for projects with content the Commission doesn’t like.
According to the application for the incentives, filmmakers “can receive a 15% post performance rebate” for the money they spend while filming in Utah provided the production does not contain “inappropriate content” or “content that portrays Utah or Utahns in a negative way.” To determine whether the project has inappropriate content, the Commission will actually “review the script.”
The MPAA says reviewing the scripts to determine who receives the incentive may violate the First Amendment. Without addressing the vagueness issues, I think a First Amendment challenge of the Commission’s script-vetting would fail.
In National Endowment for the Arts v. Finley, the Supreme Court addressed a similar issue. In that case, the NEA, a government body, had broad discretion to award financial grants to artists who demonstrated “professional excellence.” However, before awarding the grant, the NEA was required to consider “general standards of decency and respect for the diverse beliefs and values of the American public.” A group of performance artists challenged the constitutionality of the decency criterion on the grounds that it constituted viewpoint discrimination by the government. The Court upheld the decency inquiry because it was simply a minor consideration among others in the grant-making process. Ultimately, the Court held, the requirement did little to suppress expression.
This case presents some differences. First, aside from a few administrative requirements, it appears that the Commission’s finding of “inappropriate content” is the only factor that would result in a denial of incentives. In Finley, however, the decency requirement was one consideration among many others that contributed to the grant-making process. For example, the NEA was also required to consider whether the applicant’s project promotes creativity and cultural diversity. This difference doesn’t bode well for the Utah Film Commission. The Commission’s use of one standardless criterion based wholly on subjective taste is hardly a valid application of First Amendment considerations.
Another important difference is that ultimate goal of the NEA’s grants were to produce a heightened appreciation for excellent art. But in this case, the stated purpose of the incentives are to help filmmakers produce movies on the cheap. Certainly not as noble. So this difference probably doesn’t help the filmmakers.
Finally, and I have no way of demonstrating this, but I bet the grants in Finley constituted a substantial part, if not the entire budget, for a particular artistic project. Yet the artists still lost. In comparison, the post-production rebate given by the Commission is pretty nominal. In other words, a court would likely find that the possibility of losing a 15% post-production rebate doesn’t do much to deter speech.
In the end, I just don’t see a court being persuaded that the Commission’s script-vetting constitutes suppression of free speech. After all, the filmmakers have plenty of other mediums and locations to express their position. They’re certainly not limited to filming, let alone filming in Utah. And as Scalia said in his concurrence in Finley, “[a]vant-garde artistes such as respondents remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.”
Thoughts? Is the Utah Film Commission violating the First Amendment?
Adam, I agree with your analysis – and I think that this 15% incentive might harm Utah more than help it – by driving the filmmakers to other locations.
If, on the other hand, Utah required all filmmakers who filmed in the state to adhere to decency standards, that to me would seem like it would fail a First Amendment challenge.
In a practical sense, this measure is saying that if there were two movies, one pro-Utah and one anti-Utah, the anti-Utah film would only be able to spend 85¢ to every $1 the pro-Utah film spends. And since it’s an incentive rather than a penalty, they aren’t taking away the anti-Utah filmmaker’s capability—they still have the same budget that they would have had before the program. The end result is that the same amount of anti-Utah films get made as before the establishment of the incentives, but possibly more pro-Utah films are made.
I think this is a pretty creative way for Utah to go about incentivizing pro-Utah films (probably) without violating the first amendment.
I wonder if there are any other states that have programs like this? I think Utah may be a little more image conscious than most states (understandably), so I’m doubtful if other states are willing to devote quite as many resources. But perhaps they should be. States compete for residents in other ways, such as affordability, low taxes, high standard of living, etc. Movies that portray these areas in positive ways can be great at encouraging people to look into moving there. For example, MTV’s The Real World brought noteriety and “coolness” to many cities, probably making them more attractive to young people looking for colleges and places to live after college. Perhaps that’s a stretch, but I wonder if it’s in Utah’s calculations here.