Idaho residents anxious to see the film Blue is the Warmest Color, the 2013 winner of the Cannes Film Festival Palme d’Or that is based on a French graphic novel, will likely have to travel out of state or wait for it to become available for home viewing. Because Boise’s sole arthouse theater has a license to serve beer and wine, and because the state’s alcoholic beverages code contains an absurdly broad list of “prohibited acts” which may not be shown in such establishments, foreign NC-17 rated films like Blue currently have almost no hope of playing on the big screen in Idaho.
Blue is the Warmest Color focuses on 15-year-old Adèle and her art student girlfriend Emma. It contains what Variety calls “the most explosively graphic lesbian sex scenes in recent memory,” but is also an unquestionably heartfelt love story. (Note that the actress who portrays Adèle is not a minor; she’s 19.) Although the Motion Picture Association of America has been accused of giving more restrictive ratings for LGBT content than for comparable heterosexual content, critics mostly agree that Blue would have received the NC-17 either way. For once the film’s rating in the U.S. also closely mirrors the ones assigned in European countries (except France, where anyone 12 and over is allowed in).
So the problem here is not so much the MPAA’s NC-17 rating, but the peculiarities of Idaho’s laws pertaining to businesses that serve alcohol. According to Statute 23-614(e), these businesses are forbidden to show movies that include
(i) Acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.
(ii) Any person being touched, caressed or fondled on the breast, buttocks, anus or genitals.
(iii) Scenes wherein a person displays the vulva or the anus or the genitals.
(iv) Scenes wherein artificial devices or inanimate objects are employed to portray any of the prohibited activities described in this section.
Because this would apply to virtually all NC-17 rated films, The Flicks theater in Boise does not risk showing them. (Penalties could include fines, jail time, and/or suspension of the beverage license.) But wait! Wouldn’t parts of (i) and (ii) also apply to a lot of movies rated R and even lower? Yes, anonymous sources from the state’s Alcohol Beverage Control Bureau told the Boise Weekly — but businesses are only investigated for violating the law if someone lodges a formal complaint.
Idaho is far from the only state that restricts expression by tying it to liquor licenses; this is why many strip clubs are “juice bars” or BYOB. But most such laws in other states either don’t mention movies at all or include a provision that exempts those judged to have “redeeming value.” In Texas, for instance, where Austin’s Alamo Drafthouse theaters offer both alcohol and NC-17 movies, the Alcoholic Beverage Code simply forbids anything found in the state’s standard obscenity law. There, we find that to meet the Texas definition of obscene, a movie would have to lack any “serious literary, artistic, political, and scientific value” (43.21 (C)). In fact, Idaho’s own obscenity law, separate from the alcohol code, contains almost identical language:
Nothing herein contained is intended to include or proscribe any matter which, when considered as a whole, and in the context in which it is used, possesses serious literary, artistic, political or scientific value.
A court would be hard put to deny that Blue or any other NC-17 rated film does indeed have artistic value, although some members of the public would doubtless disagree. (Actual pornographic films, the kind without a plot, are not usually submitted for MPAA rating at all.) So under the law, it’s perfectly OK for a theater that doesn’t have an alcohol license to show an NC-17 movie — in fact the Boise Weekly says it convinced Edwards Theatres, part of the national Regal Entertainment Group, to bring Shame to town in 2011. But because the antiquated alcoholic beverage code contains no exemption for “serious films” that happen to include sex, The Flicks is forced to choose: either serve beer and wine, or be permitted to show a broader selection of movies. It is well past time for the state legislature to revisit the law and rectify this oversight.
Maren Williams is a reference librarian who enjoys free speech and rescue dogs.