Thursday, May 21, 2009 - The Progress & Freedom Foundation Blog

Calif. Appeals Video Game Decision to Supremes; What if They Take It?

Supreme CourtCalifornia has asked the Supreme Court to review a Ninth Circuit Court of Appeals decision holding that a California video game statute was unconstitutional. [Game has complete coverage, and there's more over at Ars and USA Today's Game Hunters blog.]

Brief background: In late February, the Ninth Circuit upheld an August 2007 ruling by a California district court decision in the case of Video Software Dealers Association v. Schwarzenegger [decision here], which struck down a California law, passed in October 2005 (A.B.1179), which would have blocked the sale of "violent" video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law. After being challenged by the Video Software Dealers Association and the Entertainment Software Association and, the district court blocked the law arguing that it violated both the First and Fourteenth Amendments to the federal Constitution.

California's decision to appeal the law up to the Supreme Court [petition is here] sets up a potential historic First Amendment decision (if they Court agrees to take the case, that is). California is asking the Court to consider two questions:

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?

2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?

California is essentially asking the Supreme Court to engage in a constitutional revolution and upset a century's worth of First Amendment jurisprudence.

The State wants the Court to equate violent media content with sexual content, which in certain limited cases can be regulated if deemed "obscene" or "harmful to minors" ("HTM"). If you thought that business was messy and hopelessly arbitrary, just wait till we let the Federal Communications Commission or state regulators open this new Pandora's Box of content regulation and go after "excessively violent" content.

I've sorted through some of those thorny issues before (1, 2, 3, 4, 5, 6) and there's just no getting around the fact that it is remarkably difficult to come up with any sort of workable test for what counts as "excessively violent" media content. And that may be one of the reasons that the courts have historically steered clear of bringing violent content under the HTM standard. As EFF noted in a filing to the FCC this week:

speech can only acquire HTM status as a result of sexual content. Courts have repeatedly held that nonsexual depictions of violence are not covered by the HTM doctrine and are just as constitutionally protected for minors (against state action) as they are for adults. A series of court decisions, for example, has repeatedly invalidated state attempts to regulate minors' access to violent video games.

I'm not an expert at reading legal tea leaves, but I really would be shocked if the Supreme Court took this case because I doubt they are eager to "unsettle" this relatively settled body of law and bring about a First Amendment revolution in the process.

The full text of the California appeal follows below.

Calif Appeal of VDSA Case to Supreme Court

posted by Adam Thierer @ 2:31 PM | Free Speech