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'Machete Kills' Loses Free Speech Suit Against Texas Film Program

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By Casey C. Sullivan, Esq. on December 30, 2015 5:58 AM

In case you missed it in the theaters, Machete Kills was the 2013 camp-action film about a Mexican vigilante who is hired by the U.S. president to kill an illegal arms dealer. It starred Danny Trejo, joined by a B movie star-studded cast that included Charlie Sheen, Lady Gaga, and Mel Gibson.

Machete Kills didn't win any Oscars, but it did inspire a First Amendment lawsuit after the Texas Film Commission denied it funding under the state's film incentive program. Machete Productions sued, arguing that the denial was unconstitutional viewpoint discrimination, an argument the Fifth Circuit rejected on Monday.

The Machete Kills "Controversy"

"Machete Kills" was the second film in the Machete franchise, which focuses on the tale of Machete Cortez, played by Danny Trejo. Cortez is an ex-Mexican Federal "with a deadly attitude and the skills to match." The movies, directed by Robert Rodriguez, are actually based on a fake trailer included in the 2007 film Grindhouse, directed by Rodriguez and Quentin Tarantino.

The films typically include high amounts of campy violence and cross-border, U.S.-Mexico conflict. Machete Kills generated controversy years before it was released, as far right groups claimed that the film "confirms fears that the film seeks to build up a racial cult figure who kills for the cause of 'illegal' immigrants." One unhinged TV host described it the "Hispanic 'Birth of a Nation'" -- which is quite a stretch for a film depicting Sofia Vergara firing gunshots from her bustier.

No Money for Machete

According to the lawsuit filed by Machete Productions, that controversy lead the Texas Film Commission to deny Machete Kills incentive grants routinely distributed to filmmakers doing business in Texas. Texas's Moving Image Industry Incentive Program provides grants to production companies that bring jobs, tourism, or other economic activity to the state. Under Texas law, the Commission may deny a grant application based on "inappropriate content or content that portrays Texas or Texans in a negative fashion."

Machete Productions claims it is one of the only production companies to be denied a grant under that provision.

Machete sued, arguing that the Incentive Program illegally discriminated against it on the basis of viewpoint. In the public forum, the government may not discriminate between speakers based on the content of their speech. But, as the Fifth Circuit pointed out, government funding is allowed to be selective in order to "encourage certain activities it believes to be in the public interest." It need not fund all viewpoints equally.

Of course, government funding provisions are not beyond constitutional review. Government funding programs cannot, for example, "effectively prohibit" a recipient from engaging in protected speech. But, in the case of Machete Kills, the Fifth Circuit ruled, there was no evidence that Machete was prohibited from making its film or that Machete had its First Amendment activity interfered with in any way.

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