How is it legal for the US miltary to decide to help a film maker based on the script?

Question

According to this article on TV Tropes and this article in The Guardian, the US military will provide facilities to film makers, as well as advice to help them get the details right. However this is on condition that the film portrays the military in a positive light.

There's a catch — a Department of Defense project officer will keep an eagle eye on the script and production phases. If they don't like the portrayal of the military in your film, they will yank the co-operation. This was a major reason for the failure of the TV series Supercarrier. Other movies DoD rejected include Forrest Gump (because the army protagonist was stupid), Mars Attacks! (because everyone was stupid), and Independence Day.

However the First Amendment prohibits the government from making such decisions based on the content of the speech.

The first amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

According to this article on Viewpoint Discrimination:

Viewpoint discrimination is a form of content discrimination particularly disfavored by the courts. When the government engages in content discrimination, it is restricting speech on a given subject matter. When it engages in viewpoint discrimination, it is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints.

Later on the article cites a particular case:

In Rosenberger, the Court held that a student religious journal at the University of Virginia was entitled to the same subsidy from student activity funds received by secular student journals. The Court concluded that the university’s policy of withholding the subsidy from student religious journals was a form of viewpoint discrimination: "[T]he University does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints..."

The DOD behaviour would seem precisely parallel to that of the University of Virginia in Rosenberger, in that it does not exclude criticism of the military as a subject matter but selects for disfavored treatment those films with critical viewpoints.

How is the selection of movies for support by the DOD not a form of viewpoint discrimination?

Edit: Government Speech Doctrine

A couple of responses have raised the government speech doctrine. This allows the government to make statements that are not content-neutral, and to pay others to do the same. The doctrine was first defined in a case where government subsidies for medical clinics included a condition that the clinics not provide advice about abortion. The Supreme Court held that since the government was paying for the doctors to give advice it could require them to say or not say anything it wanted. However this would seem to be in clear contradiction with the Rosenberger case mentioned above, where the government (through the University of Virginia) was prohibited from putting a viewpoint condition on its subsidies to student journals.

In Matal vs Tam the Supreme Court followed a three-part test to determine if a particular instance of speech is by the government or not:

1. Does the medium have a history of use to convey messages by the government? In the case of popular films where the government is not clearly identified as the maker this would seem to be false. The customary "the producers would like to thank..." at the end of the credits is insufficient to override this.

2. Does the government maintain direct control over the messages conveyed? This is a grey area; the Guardian article above seems to show the DOD having veto power over aspects of the scripts, but paradoxically the fact that the film makers could always choose to walk away and make the film without government help seems to suggest that this control is only indirect. "Direct control" would mean the DOD themselves writing a script and then hiring film makers and actors to produce it.

3. Does the public closely identify the message with the government? Again this would seem to be false. People go to a film to see a good story, not to listen to government propaganda, and the films in question do not advertise themselves as presenting the government point of view.

So the claim that a film which receives DOD assistance is thereby deemed to have been made by the government does not seem to stack up. At the very least it would be a significant expansion of the government speech doctrine.

Answer 1

This question is addressed in "Viewpoint Discrimination in the Military's Filmmaker Assistance Program and the First Amendment", Communication Law and Policy 19:3 (paywall). Support of media is enabled under a DoD policy "Assistance to Non-Government, Entertainment-Oriented Picture, Television, and Video Productions" (version available in the wild here), which states that

[W]hen cooperation of the producers with the Government results in benefitting the Department of Defense or when this would be in the best national interest, based on consideration of the following factors:

3.1.1 The production must be authentic in its portrayal of actual persons, places, military operations, and historical events. Fictional portrayals must depict a feasible interpretation of military life, operations, and policies.

3.1.2. The production is of informational value and considered to be in the best interest of public understanding of the U.S. Armed Forces and the Department of Defense.

3.1.3. The production may provide services to the general public relating to, or enhancing, the U.S. Armed Forces recruiting and retention programs.

3.1.4. The production should not appear to condone or endorse activities by private citizens or organizations when such activities are contrary to U.S. Government policy

It should be noted that the policy has not been challenged in court.

As the author observes, "[t]he military has a legitimate need to engage in advertising and public relations, as it needs to promote a positive image to attract and retain personnel for an all-volunteer military service, as well as for other purposes".

The author observes that

the Supreme Court has noted that "'judicial deference… is at its apogee' when Congress legislates under its authority to raise and support armies," which is granted to Congress in the Constitution.

that is, one should expect deference to the military by the courts. See Goldman v. Weinberger, 475 U.S. 503, which held that

The First Amendment does not prohibit the challenged regulation from being applied to petitioner, even though its effect is to restrict the wearing of the headgear required by his religious beliefs. That Amendment does not require the military to accommodate such practices as wearing a yarmulke in the face of its view that they would detract from the uniformity sought by dress regulations.

A general law prohibiting wearing of a yarmulke in public would be tossed out on 1st Amendment grounds in a heartbeat: but the military enjoys not well defined latitude to restrict expression. For example, exclusions of protests on military bases has been upheld (US v. Apel, which kicked the the First Amendment can down the road).

One possibilitiy is that the court may engage in forum analysis (Cornelius v. NAACP Leg. Def. Fund, 473 U.S. 788, see also Arkansas Ed. Television Comm'n v. Forbes, 523 U.S. 666) as

a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes

Public streets would be a public forum: the nature of military facilities is the threshold question. If a limited or nonpublic forum is involved, a restriction on speech may be valid if it is reasonable and viewpoint neutral (Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U.S. 661). Military bases fall in the nonpublic forum category. This is one prong of reasoning possible (which the author does not endorse), that in a nonpublic forum it is reasonable to consider the purpose of the underlying program.

The author observes that "[u]nder an unconstitutional conditions analysis, a court would need to find that the restriction on speech at issue -- not presenting the military in a negative light -- only applies within the confines of the program itself. Along with that, the program must allow producers to engage in such speech outside of the program. That is the case here, as producers are free to make productions that are critical of the military, or that portray it in a negative light, just without the full support provided to producers who portray the military more positively".

The court in Rust v. Sullivan, 500 U.S. 173 found that

When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles...it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as Communism and Fascism. ... when the government appropriates public funds to establish a program, it is entitled to define the limits of that program.

Under the assistance program, the military does not place "a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program" (Rust at 197). Producers can be critical of the military in their productions, but have no constitutional right to do so while being assisted by the government.

The final answer is far from obvious: perhaps someone will sue and we can get a definitive answer.

Answer 2

So the reason the military does this is they are not going to be spending tax payer dollars on the film. The film budget will compensate the military for the footage of F-22s shooting aliens and Army units backing up the superheroes. They reason they offer is that they want a feature length commercial for their bad-ass gear. But again, it's not a tax payer service. They do not profit off of it either, they send the bill for the military gear at cost (meaning the film crew just has to pay the military what they spent to get the stuff to shoot location, not the additional fees that they army will use to invest in other projects.).

When the Pentagon says "no" it's usually because of one of two things: There is a policy in place that will be violated by the protrayal (example: TV Movie "The Day After" was rejected because the film would not say who started the nuclear war that was being portrayed. The military was adament that a line saying the Soviets started it be included, but the whole point of the film was that to the survivors, it really doesn't matter who dropped the first bomb at all.), The military is made to look bad (Forest Gump isn't so much about incompetence as it is about a critical portrayal of the Army in the Vietnam War. Mars Attacks is because of utter stupidity), the film depicts something the military doesn't like to discuss (Independence Day featured Area 51 as a major plot point, but when made in the 90s, the U.S. was like "What Area 51. That doesn't exist!") or the film is not directed by Michael Bay (say what you want about Bay, but the man makes films that look like recruitment ads put out by the military anyway and tend to appeal to the 18-25 year old males who the military wants to recruit. Bay actually can be a little more critical of the Military then most film-makers who seek Pentagon Support because he's very good at giving them an overall good portrayal. Consider "The Rock", where the villains were rogue U.S. Marines and "Transformers" where all but two of the Decepticons were military vehicles. In the former, the villains motivation was because they felt special forces were not being properly compensated while in the latter, the Decepticons were portrayed as the most badass robots and would naturally seek the most badass military equipment to hide as. Additionally, both films had very positive portrals of active troops (U.S. Navy Seals and Army respectively) and unflattering portrayals of intelligence personnel (always civillians).

The other thing not discussed is that each branch of the U.S. military has it's own PR department that needs to be applied to for assistance and the U.S. Military is famously fraught with light inter-service rivalry (it's much more friendly teasing these days, but it caused some problems back in the day). So if you're getting Pentagon support from the U.S. Navy, so long as your portrayal of Navy and Marines are flattering, the Army and the Airforce can be a lot more useless or incompetent (I'd also point to the Coast Guard, but they don't normally get movies at all... and most are about saving people at that.).

As mentioned in comments, being rejected does not mean the film doesn't get made and many great films were made with rejection from the Pentagon. There are also several tricks to get around this, such as use of the movie studio's library of stock footage of films that were supported (Midway for example, used a lot of existing footage from other films where it's spiritual predecessor Torah! Torah! Torah! had support from both the U.S. military and the Japanese Self-Defense Force. The Day After used stock footage from other military backed films), use of paid experts (there are a number of companies and individuals run by former military personel that provide expertise to civillians for a fee. Perhaps the most famous is actor and retired marine drill sergeant R. Lee Emery, who was initially contracted as a consultant for Full Metal Jacket for it's boot camp scenes. Stanley Kubrick promoted him to his first on screen roll after Ermey submitted a video of him belting insults while some fellow marines pelted him tennis balls and rotten oranges, for ten minutes, and never repeated an insult. Ermey is one of the few people Kubrick ever let ad lib in his works.), and these days, CGI can make an aircraft carrier fly so you hardly need permission to shoot the real deal (Avengers was not Pentagon Approved specifically because no one really knew who the fictional S.H.I.E.L.D. agency answered to in the chain of command.). Another common tactic is not mine footage from actual training footage produced by the U.S. military as in the United States, government footage is automatically public domain and can be used by anyone.

Again, it's because the film studio will reimburse the expenses for the personnel and equipment used for shooting the film, and not the tax payer, that the Pentagon is allowed to be selective in which films they choose to offer support services too and which they do not. The Government is permitted to censor it's own speech and endorse or denounce things.