The X Rating Gets Its Day in Court : Movies: William Kunstler will argue today that the X for ‘Tie Me Up!’ violates New York law. The MPAA counters that its system thwarts government censorship.

For 22 years, the Motion Picture Assn. of America has weathered assaults leveled by filmmakers and critics against its movie ratings system. Today, the MPAA will meet one of its opponents face-to-face in a New York courtroom in a case that could determine the fate of the controversial adults-only X rating.

Famed civil rights attorney William Kunstler will appear before New York Supreme Court Judge Charles Ramos to argue that in assigning Pedro Almodovar’s “Tie Me Up! Tie Me Down!” an X rating, the MPAA violated Article 78 of New York state civil law, which prohibits public or private organizations from applying standards “arbitrarily or capriciously.”

Ramos will get an earful--and an eyeful. Kunstler intends to show excerpts from half a dozen or more R-rated films whose content, he says, is more graphic than the offending scene in “Tie Me Up! Tie Me Down!” Miramax’s suit is only the third ever brought against the MPAA ratings system, a fact that Kunstler attributes to long-held fears of the ratings board’s power.

“Everyone’s afraid of it,” Kunstler said. “But I think there is gross dissatisfaction with the ratings system. It’s a private preserve.”

The MPAA has requested a dismissal of the suit on the grounds that it asks the New York courts to determine what rating a film should receive. “The heart of the Miramax case is its demand for the creation and imposition of a state-sponsored movie rating system,” said MPAA counsel Floyd Abrams in a statement released Tuesday, arguing that such a system is inconsistent with New York law as well as the First Amendment to the Constitution.

Ratings system history is laced with controversy, but a string of X ratings given to the independent films “Tie Me Up!,” “The Cook, the Thief, His Wife and Her Lover” and “Henry: Portrait of a Serial Killer” (also the basis of a lawsuit, filed by Maljack Prod., in Washington) prompted the strongest outcry yet and helped Kunstler persuade Miramax to sue the MPAA.

More than the X is under attack. Prominent directors, critics and influential publications have called for a complete reappraisal of the ratings system and fingers have been pointed at both MPAA president Jack Valenti, for his obstinate stance against change, and to Richard D. Heffner, for his style as chairman of the MPAA’s Classification and Ratings Administration (CARA).

Amid rising cries in parts of the country for enforcement of dormant obscenity laws as they apply to art exhibitions and stage performances, the controversy over the X movie rating has awakened fears in Hollywood that the ratings board, too, has become more conservative.

“No, it has not become more conservative,” responded Valenti, who designed the current ratings system in 1968, shortly after becoming MPAA president. “There is no furor except that which has been created by four or five pictures and their publicity wizards.”

Valenti said the MPAA, the primary trade organization of the eight largest Hollywood studios, is not considering a new A rating (designating adults only) between X and R, as has been called for by the National Society of Film Critics and others. “There are no plans to add a sixth rating,” Valenti said in an interview with The Times. “The ratings system is very fragile and you can weigh it down with alphabetic chaos.”

The current five ratings, intended as national guidelines for parents, are G, PG, PG-13, R and X. The X, intended initially to restrict attendance to persons 18 and over and once assigned to such prestigious films as “Midnight Cowboy” and “Last Tango in Paris,” was long ago borrowed as a badge of salaciousness by pornographers. As a result, for more than a decade no major studio and few independents have been willing to release an X-rated movie. Most newspapers, television and radio stations will not carry advertising for X-rated films and many theaters will not play them.

Heffner, whom some directors accuse of wielding the X like a sword of Damocles, has served as chairman of CARA since being appointed by Valenti in 1974. Heffner is by some accounts “the least-known most powerful person in Hollywood,” but his job is an embattled one, buffeted on one side by angry filmmakers who view him as a meddling censor and on another by citizens’ groups who claim he and the board are too soft on violence and sex.

Heffner, 65, is a professor of communications and public policy at Rutgers University and once general manager of public television station WNET in New York. He has been a member of the board of directors of the American Civil Liberties Union, an advocate of adventurous films and an ardent defender of the First Amendment, all of which cast him as an unlikely censor. In fact, he abhors the term.

“He’s far from being a prude. He’s a very liberal man,” asserted one former CARA voting member who asked not to be identified. Heffner, she said, “pounded into (board members) not to be to harsh. He told me to lighten up.”

Yet Heffner has enraged more than a few filmmakers with what they describe as his imperious--and some say duplicitous--tendencies as an administrator of a ratings code that has no written rules.

Directors including Alan Parker, Clint Eastwood, William Friedkin and Wes Craven, among others, have complained that Heffner has abused his power, verbally belittling filmmakers with vague and arbitrary judgments based on his own taste and whims. “The letter you get which goes with your submission for rating--the wording is so arrogant,” said Parker. “These people are serving our industry, but there’s a sort of schoolteacher authority thing.”

Even the most successful directors must defer to the ratings board chairman, since he is often in a position to force them to cut their films in order to win a rating they are contractually obliged to deliver to a studio.

“I don’t want to be discussing the ratings system and speculating about my life as chairman of the ratings board in the midst of two lawsuits,” Heffner said this week. “I always appreciate the fact that people have individual axes to grind and will grind them.”

Parker, the English director of such respected pictures as “Shoot the Moon” and “Birdy,” struggled through the MPAA’s appeals process in a vain effort to get an R for his first cut of the 1987 voodoo thriller “Angel Heart,” which starred Mickey Rourke and Lisa Bonet. Parker claims Heffner charmed and misled him.

“To me, you can’t argue with Heffner,” Parker said. “He’s completely on your side, it seems, like he wants to help the movie . . . then the guy kills you. At the appeals hearing, he got up and gave a speech and the words that came out of his mouth were the opposite to the conversation we were having outside minutes before.”

“That happens not to be true,” Heffner answered. “That he has a self-serving purpose here, that’s fine. But everyone who doesn’t like what he gets cries foul. . . . I’m deeply sympathetic to anyone who says, ‘This is my vision of my film.’ But it’s the vision of the rating board what most parents will find appropriate.”

“(Heffner) is the kind of man who will not allow a certain kind of view to be expressed, period,” said Wes Craven, the director and former college professor whose independently produced youth-market horror films like “A Nightmare on Elm Street,” “The Hills Have Eyes” and the recent “Shocker” have led him into frequent confrontations with the ratings board. “He has problems with pictures that depict a certain level of rage.”

Craven said he often felt, in discussing his films with Heffner by telephone, that “I could feel the lip curling on the other end of the line.”

“He’s a bully,” charged Robert Radnitz, a producer known for such family-fare films as “Sounder” and “Cross Creek” who nevertheless butted heads with the board back in 1978 over the issue of tough language in “A Hero Ain’t Nothin’ but a Sandwich,” a movie about a ghetto youth tempted by drugs.

The 10 members of the ratings board, all Los Angeles-area parents selected by Heffner, convene five days a week at an office in Sherman Oaks to view and discuss films, often joined by Heffner’s voice via speakerphone from New York, where he works out of the MPAA’s Manhattan office. He also ventures to Los Angeles from time to time to sit-in. In the event of a tie vote among the board, he casts the tie-breaker.

If the board votes an X to a film, the producers have the option of releasing the film unrated or appealing the decision to a 22-member MPAA appeals board made up largely of theater owners and distribution executives. In 22 years, there have been 228 appeals filed; 127 ratings have been sustained, 101 overturned.

Unlike the other board members, Heffner does not see every movie submitted to the MPAA for a rating. He primarily focuses his attention on movies that pose potential ratings problems, yet he appears to be more than a tie-breaker in terms of influence.

William J. Kelber, an Ontario veterinarian who served for a year recently as a substitute board member, offered this assessment of Heffner’s role as chairman: “It didn’t take me very long to figure out what was going on. The board doesn’t have any guts. They do what he tells them to do. They talk amongst themselves about the need for a new rating (between X and R), and if it were up to them, I know it would be unanimous. It’s very frustrating to the board to have to give some of these movies an X.

“He’s always very careful to say, ‘Don’t let me influence you,’ then in the next breath, he tells you why (the film) should get a different rating than the one you gave it. It’s very insidious.”

“I can assure you that Dr. Kelber has misunderstood what the members of the board think about a rating between R and X, as it is being pushed,” Heffner replied. “That’s all I would have to say about that.”

William Friedkin, the director of “The Exorcist” and the controversial 1980 movie “Cruising,” about murders in New York gay bars, believes it was Heffner, overriding the board, who bestowed an X on the first version of “Cruising” submitted for review. “Heffner totally dictated the rating,” Friedkin said. “He saw the picture himself four or five times. He flew in from New York just to see it. He made the decision, not the board. The board was more on the fence.”

Heffner and Valenti have consistently denied that the board is engaged in censorship and play down the board’s power, pointing out that the MPAA ratings are merely guidelines offered for voluntary use by film companies. Yet, as the New York Times acknowledged in an editorial last week calling for a re-examination of the ratings system, the reality of the marketplace dictates that a film without an official MPAA rating of R or less is at a severe financial disadvantage. An X rating, the editorial argued, “can become an inadvertent form of censorship.”

Created by Valenti as a replacement for the old Motion Picture Code, whose rigid and artistically inhibiting standards had become glaringly obsolete by the 1960s, the ratings system is generally viewed as a success in terms of what it prevented: that is, federal legislation dictating what is permissible in a motion picture. Valenti’s ratings system also pre-empted the onset of hundreds of local ratings boards that might have decided, city by city, town by town, which pictures (and which versions of those pictures) could be shown in various regions of the country--a potential nightmare for Hollywood’s marketing and distribution departments.

By Valenti’s design, the ratings were never intended to be based on artistic merit but on how the board members felt most parents in the United States would want the films rated simply for incidents of nudity, sex, violence or rough language. And whatever hazy standards emerged from the board’s decisions were presumed open to change as the customs of society changed.

Yet this vaunted flexibility, free of the specific proscriptions of the old Hays Office, have made way for new problems as well: Who can say what the standards are and who is determining them? A child of the industry Establishment (the MPAA), the board has also been open to charges of discrimination against smaller independents and distributors of foreign films. As “Tie Me Up! Tie Me Down!” comes from Spain, Kunstler has requested a separate evidentiary hearing to examine this allegation anew.

As criticism of the system has mounted in recent months, so have complaints about its inconsistencies. Many in Hollywood have questioned why “Tie Me Up! Tie Me Down!,” which contains one explicit but arguably non-arousing sex scene, got an X while the extremely violent Arnold Schwarzenegger movie “Totall Recall,” replete with human mutilations, was graded R, as were such sexually explicit movies as “Blue Velvet,” “A Handmaid’s Tale” and “Pretty Woman.”

In Miramax’s pleadings today in court, sexual scenes from five R-rated movies from the last decade will be shown on cassette and compared to the sex scene from “Tie Me Up! Tie Me Down!” (Miramax did not release the names of the pictures in advance but Kunstler said they would be chosen from a list that included “The Postman Always Rings Twice,” “9 1/2 Weeks,” “Fatal Attraction,” “No Way Out,” “The Accused,” “Body Heat,’ “Lethal Weapon 2” and “Blue Velvet.”

Mark Rydell, the director of “On Golden Pond,” “The Rose” and other movies, was among those who criticized the board’s decision to hand an X to “Tie Me Up! Tie Me Down!” “We are laughed at throughout the world for our puritanism and our fear of candor,” Rydell said. “What we did to Almodovar is shameful.”

Robert Radnitz, who calls the Valenti system “a charade” and favors abolishing the ratings altogether, believes that the ratings have had the embarrassing result of actually making movies more violent and prurient. “We’ve been so brainwashed to thinking that there can’t be anything interesting in a G film,” the producer said.

It’s no secret that G has come to be shunned by studios almost as deliberately as X. Paul Maslansky, a producer of the “Police Academy” series of youth comedy films, said that many young filmgoers are put off by G because “G is the old Disney picture and sometimes that’s the kind of entertainment they’ve grown out of.” Maslansky said “Police Academy 3” (1986) was in danger of being rated G. In order to get the more desirable PG, he explained, “We put in some modest foul language on the off-screen soundtrack.”

Not everyone in Hollywood is unhappy with the ratings system. Two-time Academy Award-winning director Milos Forman said, “I have not had any bad experience so far. I’m more concerned with the cuts they make for television.”

Bob Rehme, who as the former chairman of New World Pictures was caught in the middle of the ratings dispute over Ken Russell’s 1984 film “Crimes of Passion” and later produced Paramount’s “The Hunt for Red October,” said, “I think sometime it’s arbitrary, but in the long run it works. The code has helped the movie business. If it were abolished it would be an absolute disaster, given the climate right now.”

The Directors Guild of America did not address the subject of MPAA ratings in its most recent contract negotiations with producers in January, but director Arthur Hiller, president of the DGA, said recently that he believes a new rating may be necessary because of the stigma now attached to X.

“If (the major studios) won’t make an X-rated film, they should create a new rating that would permit them to make the kinds of pictures they want to make but can’t,” Hiller said. “I would like it if the heads of the studios would sit down with the heads of the creative community and really examine this and decide if there should be some kind of change. We really need to think it through.”

Valenti, citing “overwhelming approval by parents” of the existing system, according to an annual survey conducted by the Opinion Research Corp., said he has “not had a single call” from a studio head about a need to make any changes in the system.

The last change came in 1984, when PG-13 was added in response to charges by some critics and others that a scene in Steven Spielberg’s “Indiana Jones and the Temple of Doom” was too violent for pre-teens. Valenti resisted that change but said he implemented it after the movie was in release because “exhibitors felt we needed the change.”

Valenti said if the heads of the major studios, who make up the MPAA, “came to me and said we need an A rating, I would say no.”

On the eve of the “Tie Me Up! Tie Me Down” hearing, Valenti also gave Heffner a vote of confidence. “He’s doing a good job, I think. Controversy goes with the territory.”