Charging prejudice against foreign films and independent distributors, Miramax Films took the Motion Picture Association of America to court yesterday in New York in a suit over the X rating given to "Tie Me Up! Tie Me Down!" Miramax, along with the Spanish film's director, Pedro Almodovar, is contending that the MPAA acted in a capricious and arbitrary fashion in assigning the rating and is requesting that it be rescinded.

New York Supreme Court Justice Charles Ramos indicated that he would rule on the case by the end of July.

The MPAA asked this week that the suit be dismissed because it asks the New York courts to determine what rating a film should receive. "The heart of the Miramax case is its demand for the creation and imposition of astate-sponsored movie rating system," said MPAA attorney Floyd Abrams in a statement released Tuesday. He also called Miramax's proposal that the MPAA adopt a new A (adult) rating "frivolous."

Attorney William Kunstler, representing Miramax and Almodovar, introduced as evidence a tape featuring excerpts from six R-rated films whose content, he said, is more graphic than the scene that earned the X rating for "Tie Me Up! Tie Me Down!" "We had the rape scene in 'The Accused,' as well as scenes from 'Blue Velvet,' '9 1/2 Weeks,' 'Fatal Attraction' and 'The Postman Always Rings Twice,' " said Kunstler. "We had 15 to choose from. All were American films with American distributors."

Kunstler, after his face-off with Abrams, said the courtroom had been jammed with reporters and lawyers: "Two titans of the law, you know."

One of Kunstler's concerns was that the X rating has been usurped by pornographers, who employ it freely in promoting their films. "The judge wanted to know why the MPAA had failed to register the X {as a trademark} when it had registered all the others {G, PG, R and later PG-13}. As a result, the pornographers took over the X.

" 'Tie Me Up! Tie Me Down!' is not the greatest film I've ever seen, but it's not pornographic," Kunstler continued. "There's a tender love scene which is far from pornographic. When I saw saw Jack Nicholson ripping off the panties of his costar in 'The Postman Always Rings Twice,' then grab her pubic region ... I was amazed at the R rating. That's not only sex, but violent sex."

Abrams, who saw 'Tie Me Up' for the first time Wednesday night, said: "I think it's a good movie. What struck me more than the sex in the film, which is prolonged and graphic, was the treatment of drugs. The heroine seemed to enjoy her drugs more than her sex. Reading the ballots of the people rating the film, the treatment of the drugs seems to have affected them more than the sex scenes."

Told that his opponent apparently likes "Tie Me Up!" a whole lot better than he does, Kunstler quipped, "Floyd Abrams is as senile as I am."

Speaking after the trial from his car phone, Abrams said: "There are always dangers when you have a system that involves ratings. There is a danger that they can be wrong, a danger that people can take them too seriously. It is to the public welfare, however, to be given some sense as to whether this is the sort of film they would want their kids to watch. My concern is not that the system may be wrong now and then; it is that there must not be any official rating system, whether imposed by the Congress or the courts.

"Mr. Kunstler acknowledged that the court had no power to {impose ratings}," said Abrams. "I argued to the court that it would violate the First Amendment for the court to require any additional ratings designations. And that now appears to be out of the case... . Miramax's main argument was that the X rating was arbitrary and capricious. I argued, since Miramax itself did not allow individuals under the age of 18 to attend the film, that it was frivolous for them to maintain that the rating board had erred in coming to a similar conclusion."

Meanwhile, Ramos either is or isn't watching the tape marked Exhibit A. "He didn't say it was received," said Kunstler, "but he didn't say it was rejected either."

Abrams had argued that "comparisons of one film to another were inappropriate in terms of deciding what rating should be given, and in any event, it would be improper and misleading for the judge simply to watch brief, highly charged sexual scenes without watching the whole movies from which they came. I also argued that for the judge to watch the movies as a whole would move him dangerously close to the role of super movie rater."

It was Kunstler who persuaded Miramax to press the case in the first place. "They didn't want to do it at first," he said, "because they had a reluctance to attack the rating system. They have no fault with the system except that it needs {an A} category."

Aside from the Spanish film "Tie Me Up!," Kunstler said he was disturbed about X ratings that were given to a string of recent films, including the British "The Cook, the Thief, His Wife and Her Lover," and the independent "Henry: Portrait of a Serial Killer." Disputing the MPAA's claim that the ratings system is primarily a service to parents, he said he believes it is "a form of private censorship. {An X-rating} cuts down on the audience and the ability to reach the audience through advertising and the ability to exhibit in theaters and, therefore, infringes upon the First Amendment rights to produce and exhibit affected films to the fullest possible audience. You can't advertise on TV, a lot of newspapers won't allow you to advertise, a lot of theaters will not play X movies."

Abrams described himself as "optimistic" about the judge's ruling. "Based upon the questions asked by the court," he theorized, "he will decline to enter the rating fray himself; therefore we are hopeful that he will refuse to second-guess and overturn the X rating."

Kunstler concluded that "the court took the case very seriously," adding that Abrams's firm of Cahill Gordon & Reindel did the same. "They left five pounds of paper on my doorstep yesterday. Even he apologized. I thought he was ecologically unsound for using all those trees."