In Texas, Denial of Film Subsidy Based on Content Has Implications for Game Developers

Tax breaks and other government incentives for developers are a terrific benefit to the video game industry. But, as GamePolitics has previously reported, in Texas they come with strings attached, allowing the state to withhold funding based on the content of a project.

Those strings have now reared their ugly head, at least for one filmmaker.

The Waco Tribune-Herald reports that Texas Film Commission Director Bob Hudgins has denied funding to the producers of Waco, a film project based on the 1993 shootout and subsequent standoff at the Branch Davidian compound:

Hudgins [said] he made the decision after reviewing the script and talking with journalists and law enforcement people involved in the incident.

Under the provisions of the recently enacted Texas Moving Image Industry Incentive Program, state financial incentives can’t go to film, video or video game projects that inaccurately depict the state or actual events in the state.

An earlier report suggested that the incentives were blocked due to “opposition from an unnamed state senator.” However, Hudgins denied that, saying that the decision was his.

The producers have suggested they may relocate to neighboring Louisiana, where state incentives have no such content restrictions.

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  1. 0
    Brokenscope says:

    Except you can’t offer proof that the success of A causes/or is dependent on the failure of B.

    Each application is considered on an individual basis. There is nothing on the grant application that says you have to list another applicant with whom you are being competitive with.

  2. 0
    xMrAx says:

     Again with the boat analogy. I do understand what it means and it is extremely insulting which it is supposed to be. Maybe you should shrink down your ego to normal levels and accept the fact we had a heated arguement in which we both brought up good points yet neither of us can claim to be right since neither of us, correct me if I’m wrong, are judges. 

    I am just trying to end the arguement on friendly terms while you are still trying to insult me.

  3. 0
    JDKJ says:

    Here’s how is works: we’ve reached the point where you swim away from my boat, happy to get the hook out of your mouth and the gaff out your side and I re-bait and go off in search of other more suitable fish. You continuing to swim circles alongside the boat isn’t the way the game gets played. Now, off with you. You’re free to go.  

  4. 0
    xMrAx says:

    I think this is the perfect oppurtunity to post



    "We didn’t start the flame war

    peeps were hating on it

    ‘fore we left our comment"

  5. 0
    JDKJ says:

    Thank you for finally, after hours of you running back and forth in the water, allowing me to reel you alongside, gaff you, and hoist you into the air so I can finally get a good look at what kind of fish you are. Now, if you don’t mind, can you open wide and allow me retrieve my hook from your mouth so I can return you to from whence you came? I practice catch-and-release angling.

  6. 0
    Brokenscope says:

    Oh sorry, I assumed you would understand the concept of a Zero Sum game if you were going to bandy the term about.

    "zero-sum describes a situation in which a participant’s gain or loss is exactly balanced by the losses or gains of the other participant(s). If the total gains of the participants are added up, and the total losses are subtracted, they will sum to zero."

    Who are the competitive participants?

    Please define gain and loss in this situation.

    Please explain where and how one of the participants losses contributes to the gain of his competitor(s).


  7. 0
    xMrAx says:

     Oh yeah forgot to say. GP is a media institution like all the others. Even if their past coverage has been shown to be accurate they are not infallible and you cannot make an arguement without outside research. You cannot simply say becuase it was on GP it must be true. You can argue that statement if you want and you probably will, but it is true.

    It is especially true since GP got the writing of the law from a different source.

  8. 0
    JDKJ says:

    The State’s decision-making process inherently makes the success of A dependent on the failure of B and vice versa when it takes the two depictions of the same subject matter and finds that A’s is accurate and B’s is inaccurate. In a very real sense, A wins because the State has determined that B loses and B loses because the State has determined that A wins. It’s one of only two possible outcomes, you’re either accurate or inaccurate. And they both define each other.

    But does a zero-sum game even require that the means of acquiring gains or suffering loses be interdependent? Or only that the allocation of those gains and loses among participants be interdependent?   

  9. 0
    xMrAx says:

     Really you sound like a retard. As explained above the mistake at Waco was a federal issue not a state one. Insulting people of a state is way out of line for a debate.

  10. 0
    xMrAx says:

     Replying with anger is no way to win an argument. And yes I know what the First Amendment says. There is no case law of what you are talking about. The closest I can think of is Lemon v. Kurtzman in which the govt can decide which private schools it can fund based on religion using a three test system. If the govt can discriminate funding based on religion the can definitly do it based on speech.

  11. 0
    HookemFilm says:

    Fantastic. Atleast one person on here (being you) actually understands what is going. I do not understand peoples logic sometimes. Funding is a privelage not a right.

  12. 0
    JDKJ says:

    How, pray tell, have I insulted anyone? And who said anything about Waco? I said the Alamo. I know that from a distance two burning buildings may bear a close resemblance to each other, but I certainly didn’t confuse the two. 

  13. 0
    Andrew Eisen says:

    True, but I only noticed two double posts by

    Come to think of it, I have seen Thompson do that…


  14. 0
    JDKJ says:

    There must have been some kinda technical glitch which chopped off the part of your post where you attempt to explain why it isn’t a zero sum game. It’s left you with a bare, naked, unsupported, conclusory opinion. 

  15. 0
    JDKJ says:

    Could it be that the defenders of the Alamo weren’t brave and fearless heroes? That they were actually scared shitless and pissing in their pants? Well, if you’re waiting on the State of Texas to subsidize the film which might present this alternative view of that historical event, don’t hold your breath.

  16. 0
    JDKJ says:

    In a zero sum game, there’s no difference. To suppress one is to promote the other. Think inflated sausage ballon. You squeeze one end, the other end bulges.

    And for fuck’s sake, I’m gonna call it what it obviously is: censorship.

  17. 0
    JDKJ says:

    When you state complete non sequitors like "[t]hey are not being restricted in any way, just being told the government will not help them" as if the refusal to aid the publication of a particular viewpoint isn’t inherently restrictive of that particular viewpoint, I get to feeling that’s my cue to call it a day with you. Would the particular viewpoint be more readily published with the subsidy than it would be without the subsidy? Yes, of course it would. And that it doesn’t receive the subsidy is therefore restrictive of its publication. Plain and simple.

    Did you not read and understand my explanations that the First Amendment’s prohibition of restrictions of free speech does not require that an actual movie be banned or in any other way not produced or published? It doesn’t even require that an actual movie ever have been made. Nor does it even require that a script be drafted. If the statute, rule, regulation or whatever law is under constitutional challenge by it’s language if applied would operate to restrict some hypothetical speech while promoting other hypothetical speech (which is precisely what they Texas rule does by subsidizing speech which the State finds agreeable and not subsidizing speech which it finds disagreeable), then the law is UNCONSTITUTIONAL.

    And, if we can safely rely on GP’s coverage, we don’t need the exact reason the decision was made in order to determine that the law is unconstitutional. Apparently from GP’s coverage, under Texas’ rule, if the film "inaccurately depicts the state or actual events in the state" as determind by the State, it gets no subsidy. Isn’t that what the language of the rule says? The State gets to determine when a film is not "accurately" depicting the State or events which occurred in the State and if the determination is made that your film is not an accurate depiction of the State or State events, then you get no subsidy. Which, if you stop for a minute and think about it, was precisely the concern of the Founding Fathers — who had a long and storied history of criticizing the King of England and suffering his brutal repression as a result — when they drafted the First Amendment. That criticsm or other less than favorable viewpoints of the government wouldn’t be subject to supression by the goverment. Betcha the King of England found all those "taxation without representation is tyrany" claims the colonists were making to be an "inaccurate" description of his tax policies.

    And if you get a spare moment, you should look up the difference between a parallel court’s "persuasive precedent" and a higher court’s "binding precedent." You’ll find that while the two are not of equal precedential value, it cannot be fairly said that neither holds any precedential value. And that neither should be lightly ignored by a court.     

  18. 0
    Brokenscope says:

    There is a difference between preventing something and not promoting it, I would be willing to bet that there is case law to back that distinction. This is at worst en equal protection issue.


    Please for fucks sake, stop crying censorship, you are watering down the term.

  19. 0
    xMrAx says:

     This is not a first amendment issue. This is a fiscal issue. The first amendment protects the freedom of speech not the freedom of funding. They are not being restricted in any way, just being told the government will not help them. Also prior court cases were made in other states, they do not hold precedent for Texas law. There is no law being disobeyed and no freedom being repressed. This has been carried way out of context especially sense we do not know the exact reason why the film comission made this decision. For all we know there could be something extremely obscene or falsified, both of which are not protected by the first amendment according to the Supreme Court. Finally we are luckly to have this funding for projects anyway. Almost all other states don’t have this. Technically not having the funding is normal. 


    For the last time this is not a first amendment issue. Free speech is not being restricted since the movie is not being banned from being filmed. This is a fiscal issue that should be looked into with fiscal law not the first amendment.

  20. 0
    JDKJ says:

    If you’re depending on having to read the script or see the movie to determine whether or not the movie should recieve a subsidy or funding of some other sort, then you’re doing the exact same thing which the Constitution says Texas cannot do: make a decision to grant or deny the subsidy or funding on the basis of the movie’s contents. Can’t you see how dangerous that is to free speech? It says, basically, that we the government of Texas will subsidize and fund only those movies presenting a viewpoint which we, in our ultimate wisdom, deem acceptable. Jesus Christ!! We might as well go back to the pre-Revolutionary days when the British ran around the Colonies, destroying the printing presses of those who dared to publish pamphlets critical of the King. And hanging them for treason as added entertainment.

  21. 0
    Geryon says:

    Eeeee, I agree and disagree.  I understand the argument that the government can choose not to fund a movie just like anyone else.  I think where the problem comes in is that it is the government and therefor a fundamentally different body than any business.  The fear is that if any government can easily and legally make it more difficult of a someone to create a movie, or something in a different medium, because they disagree with the message of the movie then they will continue, through legal means, to make it more difficult for people with opposing ideals to get their thoughts into the public consciousness.  In either case I think that if this law stays on the books it needs some amending because an inaccurate depiction of the state is extremely vague and could theoretically be used against any movie involving Texas, not saying the state government would do that but the possibility is there.

    Um… yes, rambling here, weeeeell in the end I think the government does not have the same rights as private industry but at the same time can not say if I think they should have blocked the movie until I have read the script or seen the movie myself.

  22. 0
    JDKJ says:

    Again, I would point you to the court cases involving advertising on municipal buses. None of the the plaintiff-advertisers in any of those cases was left without an advertising medium if the defendant-state denied them use of their buses. They could have still advertised. Their advertising wasn’t completely restricted. But that fact was of no import. What was all important was the fact that the state’s rules and regulations facially (i.e., by their terms) denied them access simply because it didn’t like the content of their advertising. And that, says the First Amendment, the State doesn’t get to do.

    Comparisons to private industry and the government are invariable misplaced and ill-founded. You should be reluctant to use them. Private industry’s money is just that: their money. They earned it, they get to do what they want with it. The government, on the other hand, hasn’t "earned" a red cent, usually. They’ve merely taxed it from those who in fact earned it: the taxpayers. The government’s nothing more than a trustee of the taxpayers’ money. And, as we often so easily forget, they are, like all trustees, beholden to the interests of their beneficiaries. No, my friend, it’s not the government’s money to do with what they choose just like private industry can. And the Constitution says they can’t use it to promote one viewpoint over another or suppress one viewpoint under another. No more than they can use it to promote one religious belief over another or suppress one religious belief under another. Nope. Just don’t work like that in these United States of America. Which includes Texas.

    And, when I refer to government "censorship," there is, for the purposes of the First Amendment, no meaningful distinction between a completed act of censorship (e.g., some civil servant sitting at a desk in the New York Times building with a black Magic Marker going to work on the parts of the early edition which the government doesn’t like) and the passage of statutes, rules, regulations, and other form of laws which effectively threaten censorship (e.g., "Section 90210: No newspaper shall cause to be published any content which the government doesn’t like and if a newspaper shall cause such content to be published, the government reserves the right to whip out its black Magic Marker and go to work."). Both are prohibited by the First Amendment. 

  23. 0
    xMrAx says:

     Again that would only be an issue if the movie was restricted completely. Its not. Government has rights too and just like in private industry they do have a right to choose whom to give their money to.

  24. 0
    JDKJ says:

    But there is a right to be free from government’s abridgement of your speech on the sole basis of your speech’s content. And you left out an important fact in your post above. "They are just saying they will not pay an incentive for the movie to be made because we think it depicts "X" in a negative or false light." There. Fixed. If that ain’t government censorship, then I have no idea what is.

  25. 0
    xMrAx says:

    As said before the fear of censorship is baseless. Texas has not censored some of the most controversial games ever and they are not censoring this. They are just saying they will not pay an incentive for the movie to be made. The movie can still be made in Texas, just not with government money. I don’t know why this is a big deal considering the government is not in the movie buisness in the first place. Incentives are a privlege not a right.

  26. 0
    JDKJ says:

    Unless you can actaully prove a causal conection between the claimed "damage" and the speech, you don’t get to censor speech. It’s what the videogame industry uses all the time to protect itself from censorship.  

  27. 0
    xMrAx says:

     A lot of these comments are based on pure opinion. First off Texas doesn’t normally ban or censor media. There could be many reasons why the film was told it could not be filmed. It was a shootout. The script in some way could have been emotionally damaging to people who had actually been there.

    Also Alyric makes a good point. They are not stopping the filming, only saying they won’t fund it. That doesn’t sound that bad to me since many other states would refuse to fund anything in the first place. 

    Finally stop trolling. The people who like to insult just because they can. This whole issue started because a question of state funding of a filmmaker. It doesn’t make sense how Texas’s political alignment, religion(which the first amendment does protect so you can stop insulting it), and "sex toys" got brought into the arguement. Its extremely hypocritical that you believe it is a violation of freedom to prevent the filming of a movie that can be potentially harmful to people and then turn around and call everyone in Texas crazy fools. Need I remind you Texas has the strongest economy in the union and fastest increasing job rates(even for poor people so don’t even start that arguement), so we must be doing something right.

    P.S. Gearbox, id software, 3D Realms(Prey and Duke Nukem) and part of Bioware are located in Texas. They all have made somewhat controversial and violent games, yet their funding wasn’t stopped so I hardly believe censorship is a danger in Texas.

  28. 0
    JDKJ says:

    Anger?! No, my clueless friend. That’s not anger. That’s more like snark. Anger would be: "Arrrrrgh!! Fuck you, you double-posting moron!!!"

    And yours has got to be one of the most misguided and twisted readings of Lemon that I’ve ever heard stated. The three-part Lemon isn’t used to determine if the government can discrimate in funding based on religion. It is used to determine the exact opposite: whether the government, in funding a religious-based organization, is violating the First Amendment’s etablishmnet clause by promoting a religious purpose or promoting a particular religion above all other religions. The Lemon test states:  

    "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, [and] finally, the statute must not foster ‘an excessive government entanglement with religion.’"

    You’ll notice that the first prong of Lemon requires that the government’s law have a secular (i.e., non-religious) purpose. You’ll also notice that the second prong of Lemon requires that the government’s law doesn’t promote or suppress religion. How could you have ever read these two elements of the Lemon test and concluded that it seeks to determine whether goverment can constitutionally discriminate between religions in making a decision to fund religion?! It does no such thing. In fact, it does the exact opposite. It says: (1) don’t serve any religious purpose with your law and (2) don’t discrimate between religions by advancing one religion over another or surpressing one religion under another with your law. If you do either of these, your law is unconstitutional.

    Is English your first language? You don’t seem to read it very well.


  29. 0
    JDKJ says:

    The competitive participants are all those who seek to receive Texas’ subsidy of their film project. Let’s call them Competitor A and Competitor B.

    Gain is the grant of the subsidy because Texas determines Competitor A’s film to satisfy the "accuracy" requirement while loss is the denial of the subsidy because Texas determines Competitor B’s film to not satisfy the "accuracy" requirement.

    Assuming that the film’s of Competitors A and B both depict State characteristic X and/or State events Y, then the gain of Competitor A perfectly offsets the loss of Competitor B and the loss of Competitor B perfectly offsets the gain of Competitor A. The gain is made at the expense of the loss and the loss is suffered at the expense of the gain. 

    And that’s a zero-sum game.

  30. 0
    xMrAx says:

     Again insulting people on their understanding of English. Yes I know what the three tests are and it can be interpreted the way I stated considering what you said is a rewording of the exact same thing. I never said it discriminated against different religions for funding. It simply states the govt can deny funding if they believe if it is going to religious purposes the govt doesn’t support. 

    In essence it is an analogy for the fact the govt can choose what to fund based on their criteria. Yes I know the govt is supposed to be secular. When the case was decided it was used to determine whether govt was funding religious activites. However, now it is used to determine whether govt should fund private schools in the first place. Laws change over time. 


    Also as I stated above this is fiscal law. Something Lemon v. Kurtzman does address. This law cannot be considered under the first amendment since there is no restriction of speech, just the govt saying they won’t help spread the message. If the movie was about overthrowing the govt and Texas refused to fund it there would not be any arguement. 

    In order to show it is restricting speech you have to prove the govt not funding the movie is detremental in the spread of the movie’s contents. By not funding the movie they are doing no such thing. There are many other alternative sources of income the movie can survive on. 

    The first amendment states "prohibiting the free exercise thereof; or abridging the freedom of speech". The govt is not prohibiting or abridging, to reduce or lessen in duration, scope, authority, etc.;, anything. They are simply saying they will not support the movie. 

    Again this is not censorship.


    Finally while this is the internet, cussing does not help you make your point.


    P.S. I said Lemon v. Kurtzman was the closest thing I could think of dealing with this subject, not that it was actual proof. You are the one who deduced that I was using it as actual proof in the matter. I was mearly using to describe how their is no prior case law to this event. 

  31. 0
    xMrAx says:

    You just insulted the people who defended the alamo even if it was a rhetorical stance. The situation you propose of a film depicting what you stated is not backed by any truth. Not only would Texas knock it down from funding, but no one would want the movie either, especially since it would be insulying the memory of good men. 



    Addressing the original comment the film they are blocking is not covering up anything in the state of Texas. The actual event was under the control of Washington, not the Texas govt. I urge you to wait for the reason the movie was not funded before making any more of these comments.

  32. 0
    Monte says:

     Sounds pretty negative saying to me =p

    I mean, "Grass" is something i’d call humble and not pretentious… "salted earth" is just useless wasteland that can not give life to anything… at least i don’t think it has a use… who comes up with some of these old sayings?

  33. 0
    DarkSaber says:

    "salt of the earth kind of folks"

    That’s a warning sign right there!


    I LIKE the fence. I get 2 groups to laugh at then.

  34. 0
    HookemFilm says:

    Advertising and marketing. You are dealing with corporations and businesses. Those wanting advertising are paying for the service themselves. If they pay for it out of their own pocket and are refused access, that is your point. This film is not paying for anything. There is no entitlement. They would be GIVEN money. No laws were broken.

  35. 0
    JDKJ says:

    If your argument was sound, then all the defendants in that long line of court cases who were found to be unconstitutionally regulating speech by refusing placement of advertising in municipal buses on the sole basis of the advertising’s content should have said," We’re not censoring or prohibiting anything. If they want to go advertise on a billboard or in the local daily newspaper, they’re free to do so." That way, they’d have been off the hook. What’s that called? The "alternative means of publication" defense? No. It’s called pure bullshit, that’s what it’s called.

    It’s not the practical effect of the law which makes it unconstitutional. It’s the language of the law. 

  36. 0
    HookemFilm says:

    Nothing is being censored or prohibited! The film can film here if it wants. The state just said it doesnt want to give money to the film, thats all. Nothing is stopping the film from being made. If they want it made here, they can do it.

  37. 0
    HookemFilm says:

    XmRax hit it exactly. "The first amendment protects the freedom of speech not the freedom of funding. They are not being restricted in any way, just being told the government will not help them." It is the states money that they are GIVING to a project. There is not tax credit but rather cash back. No law was broken in any way. People cannot expect to paid for everthing they do. If I wanted to make a film on 911 being a conspiracy (yes, very dumb) and asked the government to pay for it and they said no.. I can still spout out all I wanted. The govenment just says we arent going to pay you. No speech was prohibited at all. I can still go out and make it and cause a big fuss with no problems. Films are not entitled to money. Entitled to speech, but not entitled to money.

  38. 0
    JDKJ says:

    It has everything to do with the First Amendment. The State cannot promulgate any law which makes a distinction among speech on the basis of it’s content. That’s called a content-based regulation. Government’s content-based regulation of speech is generally, save for few and minor exceptions, unconstitutional. Moreover, it is also most likely violative of the Equal Protection Clause of the Fourteenth Amendment in that in takes two similarly situated persons (Filmaker A seeking state subsidy X and Filmaker B seeking state subsidy X) and discriminates between the two of them on the basis of their film’s content in the granting of the subsidy they both seek. Equal protection under the laws means, among other things, the right of equal access to publicly-available benefits under law free from irrational denials of access to the benefit.

  39. 0
    HookemFilm says:

    You are missing the entire point. It is not cencorship at all, and yes the state does have the right. Completely. It has noting to do with the first amendment. The State is not prohibiting the film or its message from being filmed. The state is not denying the film in any way. In fact, the film commission and state welcomes the film if it wants to be film, they just will not pay for it. It is is the states money, so they have the right to give it to who they please. "Waco" can still be filmed in Texas if they want. There is absolutely NO cencorship involved. It is just a matter of state funding.

    The new state law reads that is any film depicts the state of Texas in a negative or unfavorable way, the Film Commission has the right to not allow incentives. That is all that happened. If the film wants to be filmed in Texas, IT STILL CAN! just with no Texas based money. The talk of cencorship and the first amendment is just baseless. It has nothing to do with anything.

  40. 0
    JDKJ says:

    To quote N.W.A., those N***** with Attitude, who said it so much better than I ever can or ever will: "Espress yaself!!!" 

    You’ll notice, if you’ve taken the day and a half required to read through Rust v. Sullivan, that while the Court found the Government’s choice to fund the activity (n.b.: not the "viewpoint," but the "activity") of childbirth over that of abortion not to have violated the First Amendment, it took pains to point out that it’s decision was based on the fact that "[i]n so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another." The negative implication of this is that if the Government had indeed discriminated on the basis of viewpoint in choosing to fund the viewpoint of childbirth over that of abortion, then doing so would be violative of the First Amendment. And this prohibited discrimination on the basis of viewpoint in choosing whether or not to fund a viewpoint is precisely what the State of Texas is doing.

    "Yo, Dre! Stick to producin’" — Eric "Easy-E" Wright   

  41. 0
    JDKJ says:

    Not that it makes much of a difference to our discussion (protected speech is protected speech regardless of form) but just so the record’s clear, at issue is a film, not a game.

    Rust provides us useful guidance. Isn’t Texas’ rule doing exactly what Rust prohibits? If the State of Texas finds your film to "accurately" (whatever that term means and putting aside for now the obvious "vagueness" constitutional concerns it raises) depict the State and/or events which occurred in the State, your film gets a subsidy. There’s not much disputing, I think, that this effectively is the use of government funds to encourage publication of a view of which the State approves. If you think it isn’t, please let me know. If we can agree that it is, then we can move on to the next step which Rust requires of us and ask whether or not there is a competing view which the State discourages from being expressed. The answer to this inquiry, I believe, is "yes." It is the film which the State of Texas finds to inaccurately depict the State and/or events which occurred in the State and which, therefore, under the rule gets no subsidy, effectively discouraging its publication. Thus, Texas does precisely what Rust said it shouldn’t be doing: using the grant of government funds to encourage promotion of a particular view of which it approves while simulataneously using the denial of government funds to discourage promotion of a view of which it disapproves. If you can see where this doesn’t run afoul of Rust, please let me know.

    And I stand to applaud you *stands and claps hands together* for actually citing to a relevant Supreme Court decision. Beats the Hell out of the popular trend of substituting a repeated ad nauseum personal opinion for the Court’s opinions. Well done.


  42. 0
    Alyric says:

    The First Amendment protects your freedom to express yourself (within certain limits) without fear of government reprisal or censorship.

    The government has not censored this game. They simply are not funding it.

    Regardless of your personal interpretation of the First Amendment, their civil rights have not been violated. The few times this issue has gone up before the Supreme Court, it’s been decided narrowly (5/4) – and they’ve bounced back and forth between which side they’ve supported. So no, it’s not as simple as you make it out to be.

    For example: in Rust v Sullivan (1991) the Supreme Court ruled that – essentially – the government could use its money to encourage only certain views it approved of, so long as it didn’t try to prevent the opposing views from being expressed. And that was about a much more controversial subject.

  43. 0
    JDKJ says:

    Precisely! Which means that somewhere along the line the word "speech" as it appears in the First Amendment must have intrepreted to include some forms of specific speech but not others. This must be so because all the First Amendment says is "speech" without making any distinction among forms of speech. Is it possible that that the phrase "no law abridging" was also intrepreted? And intrepreted to include the prohibition of a State funding the promotion of a particular viewpoint? Just because the First Amendment doesn’t specifically say "X" doesn’t mean that "X" isn’t what it says.

  44. 0
    Alyric says:

    No form of speech is singled out as "protected" by the Bill of Rights.  All forms of speech are protected unless they fall under several of the specific exceptions to free speech. (Obscenity, sedition, incitement to crime, causing panic, etc).

  45. 0
    JDKJ says:

    Neither does it say that videogames are a protected form of speech. *pauses and thinks to self that Jack Thompson’s actually been right all along*

  46. 0
    Alyric says:

    I’ll be brief, because it’s late, and I’m tired. Try not to hold it against me. 😀

    Film, yup. Mind just automatically types game when I’m on this site. Go figure.

    Actually, the State of Texas is withholding money to refrain from endorsing the publication of a view that the state doesn’t approve of. It’s a subtle difference, but an important one.

    The Rust v Sullivan decision was primarily about when the government was permitted to withhold money, and for what reasons. The Supreme Court apparently didn’t believe that withholding financing constituted preventing a viewpoint from being expressed. I’m inclined to agree – certainly, you would have to seek funding elsewhere, but unless the government tried to interfere with that, I don’t see a problem with it.

  47. 0
    Alyric says:

    They aren’t saying he can’t produce it. Only that they won’t fund it. The First Amendment says "Congress shall make no law … abridging the freedom of speech."  It doesn’t say anything about funding private endeavors :)

  48. 0
    Neeneko says:

    Because lawmakers know how to get around such things?

    Generally when you see sucessful first ammendment suits, one can wager that the original law was a plublicity stunt.  A lawmaker who wants to actually get around the consitution will use something like the machinegun tax stamp.

  49. 0
    JDKJ says:

    Hmmm. State agency denies public benefit based on content of speech. And the First Amendment and Equal Protection Clause lawsuits haven’t yet been filed because . . . ? 

  50. 0
    JDKJ says:

    Technically, it’s not. It’s easy to forget that the "government" wouldn’t have a pot to piss in or a window to throw it out but for it’s ability to levy taxes on the good people of Texas. That’s who’s money it is: the taxpayers of Texas. Which is in part why government shouldn’t (putting aside the fact that, by law, it generally can’t) be able to censor a particular viewpoint on a whim. It’s profoundly unfair and inequitable to take the money of all taxpayers and use it to further a particular viewpoint. What if I, as a Texan taxpayer, happen to wholeheartedly agree with the viewpoint that’s being censored. That’s my money!!! And I wanna hear that viewpoint!!!  

  51. 0
    Wormdundee says:

     So let me get this straight. If a movie is in any way inaccurate about Texas or events in Texas it doesn’t get any subsidies?

    I guess that stops any sort of alternate history type movies. Or any sci-fi type movie that references actual events. I mean, it wouldn’t block a ton of movies from getting financial aid, but they’re just shooting themselves in the foot for no good reason.

  52. 0
    Neeneko says:

    I think the only people who care about keeping texas in the union are federal leaders… i.e. it would decrease their authority.  I doubt anyone else really cares.

  53. 0
    Zerodash says:

    Texas- where science education is thrown out in favor of religious indoctrination, sex toys are illegal, teens can’t help but get knocked up, and now this.  They really need to reconsider leaving the Union.

  54. 0
    JDKJ says:

    "[B]ring a state government in the mix, and have the item in question be a film about recent state history and suddenly, the person paying the bill has no say in the matter?"

    The answer to your question based on a stack of Supreme Court decisions is a resounding "No, they don’t." To do so is a clear content-based regulation of speech having nothing to do with a reasonable time, place, and manner regulation and which must therefore satisfy "strict scrutiny" (the law furthers a compelling government interest and is as narrowly tailored as possible to further that interest). Texas’ need for "censorship" (which is precisely what it is) can’t be a compelling government interest — even if re-cast for the naive among us as some sort of noble desire to see Truth be told. It’s precisely this sort of government "censorship" which the First Amendment seeks to prohibit.

    If the government wants to get in the business of funding or otherwise subsidizing the arts, good for them and good for the arts. But they don’t get to pick and choose on the basis of the art’s content what to fund and what not to fund. Blindly fund all or fund none.  

  55. 0
    Verbinator says:

    No reasonable person would expect a manufacturer or advertiser to pay money to a production crew to make a TV commericial that incorrectly depicted their company or product. No reasonable person would argue that the company has no say in determining what is correct, or accurate about the message in the commercial. No one would think to call it "censorship."

    But bring a state government in the mix, and have the item in question be a film about recent state history and suddenly, the person paying the bill has no say in the matter?

    As I remember what happened, the Waco Branch Davidian debacle came about because of Federal involvement and the manner in which key members of the Clinton administration handled what led up to and what happened after the tragedy. I don’t remember a lot of finger pointing at Texas state government at the time, under the late Governor Ann Richards (D). The overall political climate in state has changed since those days, so there’s a very good chance that this is about accuracy, and not about political butt-covering.

    I’d like to give some credit to the possibility that the decision maker here read the script, talked with people who were actually there, and made a judgement call about funding a movie that very easily could have put an agenda ahead of facts.

    When someone funds art, that means they have a say in the art. Doesn’t matter if it’s a government questioning the accuracy of a script, a manufacturer wanting to see their product depicted in the best light, a magazine editor who wants a cover image to sell that weeks issue, or an art director who wants game assets to be right for the game.

    Artists are free to express their opinions and visions in this country (for the most part). But they shouldn’t expect someone else to pay them to do so unless the person writing the check agrees with what is being said.


  56. 0
    Verbinator says:

    Texas is the best place I have ever lived or worked. Most of the people here in Texas, even in "Blue" places like Austin, are the salt of the earth kind of folks one doesn’t find as much as they ought to north of the Mason Dixon line. I’ll be sad if I ever have to leave here.

    Just because you disagree with someone is no excuse for name-calling and inflammatory language.


  57. 0
    axiomatic says:

    Please don’t hate all of us down here in Texas. Some of us are perfectly well adjusted people who don’t perscribe to the uber conservative agenda.

    Unfortunately our Texas politicians are still catering to the knuckle dragging, hate sustaining, bible thumping, bigoted, inbred white trash of our state instead of us normal citizens. The crazies still unfortunately outnumber the normals by at least 2 to 1 though so most of the derogatory comments here are probably warranted still.

  58. 0
    GoodRobotUs says:

    I’d love to know their definition of accurate, I wonder if ‘inaccurate’ is simply a political anagram of ‘reveals some embarassing failings in the State’s dealing with the situation’?

  59. 0
    SimonBob says:

    Sheesh.  Why couldn’t they find a violent, racist, neo-nazi propaganda piece to kill with the provision and get public support on their side?  Now we get another arguement about freedoms versus state responsibility.  I’m glad I live in Canada where we don’t — oh wait, yes we do. _-_

    The Mammon Philosophy

  60. 0
    ZippyDSMlee says:

    Ok..its public money so it should go to all educational media without question or most media without question.
    By nit picking in this manner to pad ones… cock…er….. resume of "hey looky I did this!!" defeats the propose of it….

    Also we need to rid government of bribes, free trips and lobbying.


    I am a criminal because I purchase media,I am a criminal because I use media, I am a criminal because I chose to own media..We shall remain criminals until Corporate stay’s outside our bedrooms..

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