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Texas Can Deny Film Grant over Movie's Content
In a ruling certain to disappoint those who want to film B-grade action movies in Texas on the cheap, the U.S. Court of Appeals for the Fifth Circuit decided that the producers of Machete Kills don't have a First Amendment right to an incentive grant from the Texas Film Commission. Machete Productions v. Page, 15-50120.
Machete Kills is the sequel to Machete, an over-the-top action movie by Texas filmmaker Robert Rodriguez about the exploits of a renegade ex-Mexican Federal assassin portrayed by actor Danny Trejo. Machete Productions, the film company that produced Machete Kills, sought a grant under the state's Moving Image Industry Incentive Program from the Texas Film Commission, whose aim is to lure filmmakers to the Lone Star State to boost both jobs and tourism.
In 2009, producers of the original Machete film had tried to get a grant from the commission, but were denied after a political controversy broke out over their application. The commission denied the grant due to the film's “inappropriate content” that allegedly portrays “Texas or Texans in a negative fashion.” (In Machete, the protagonist is offered $150,000 to kill a corrupt Texas state senator, among other plot points.)
Machete Productions tried again to get a grant from the commission for the sequel. But they were told by then-Gov. Rick Perry's general counsel David Morales, who was leading the film commission at the time, that the movie would never receive a grant due to its perceived political nature and content. Morales was later replaced as head of the commission by Heather Page, who also denied the grant.
Machete Kills was filmed in Texas anyway. But Machete Productions later sued Morales and Page, claiming their denials of the grant violated the company's free speech rights under both the U.S. and Texas Constitutions.
The U.S. District Court for the Western District of Texas dismissed the claims for lack of subject matter jurisdiction and failure to state a claim. The film company appealed to the Fifth Circuit, which found that the trial court was correct to dismiss the film company's First Amendment claims.
“Here, Morales did not forbid Machete from filming, producing or releasing Machete Kills, but merely opted not to subsidize the film with Texas taxpayer funds,” the appeals court noted. “Accordingly, the district court did not err in dismissing this claim on the pleadings.”
The appeals court noted that Machete Productions failed to establish that the denial of an Incentive Program grant 'effectively preclude[d] or punish[ed]' Machete from or for holding particular viewpoints in Machete Kills. Nor does it appear that the grant denial effectively prohibited Machete from engaging in protected First Amendment activity 'outside the scope' of the Incentive Program. ' Despite the denial of an Incentive Program grant, Machete Kills was still filmed in Texas, produced, and released. Machete does not dispute that it was free to engage in protected First Amendment activity without the benefit of an Incentive Program grant, and in fact did engage in such activity by making the film. Machete has not shown that it is clearly established that the First Amendment requires a state which has an incentive program like this one to fund films casting the state in a negative light.”
John Council is a Senior Reporter with the Texas Lawyer, an ALM sibling of Entertainment Law & Finance.
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