I'm hoping to get some input from readers as I look to finish up an amicus brief for the forthcoming Schwarzenegger v. EMA video game case. (Respondent briefs are due in mid-Sept and the State of California just filed its brief with the Court today). You will recall that the Supreme Court accepted the case for review in April, meaning it will be the first major case regarding video game speech rights heard by our nation's highest court. It raises questions about the First Amendment status of games and what rights minors have to buy or play "violent" video games. One section I hope to include in the brief I'm working on deals with how other forms of media content are increasingly intertwined with video game content. In it, I explain how video games are less of a discreet category of visual entertainment than they once were. I'd welcome ideas for other examples to use relative to the ones you see below.

I begin by discussing games that were inspired by major motion pictures, such as both the recent Star Wars and Lord of the Rings movie trilogies, for example. I also note that many games were inspired by notable books, such as the LotR games being inspired by Tolkien, and The Godfather video games that were inspired by Mario Puzo's novel of the same name. I also make mention of The Terminator movies starring California Governor Arnold Schwarzenegger, which inspired a wide variety of video games, many of which featured his likeness.

More importantly, I highlight how many video games are now inspiring movies, music, books, and comics, including: Prince of Persia, Max Payne, Resident Evil, Tomb Raider, Doom, Final Fantasy, Halo, and Gears of War. The characters and storylines in the books, comics, and movies based on these games often closely track the video games that inspired them. Increasingly, therefore, games are developed along parallel tracks with these other forms of content. Thus, to regulate games under the standard California proposes in this case raises the question of whether those other types of media should be regulated in a similar fashion. Should every iteration of the original game title be regulated under the standard California has suggested if those books, comics, or movies contain violent themes?

The Supreme Court recently announced that it will review a California law regulating the sale of violently-themed video games to minors. The case under review is Schwarzenegger v. Entertainment Merchants Association. In it, the Ninth Circuit Court of Appeals struck down a California law which prohibited the sale or rental of "violent video games" to minors. I'm inclined to agree with Julie Hilden when she notes that "it seems very unlikely that the Supreme Court took this case in order to proclaim, as the Ninth Circuit panel did, that minors do indeed have First Amendment rights -- rights that extend far enough to reach 'violent' video games." I hope that we're both wrong and that the Court took the case to instead affirm the free speech rights of game creators and users (and yes, even minors), but the justices could have just left the Ninth Circuit ruling be and that would have been settled.

Anyway, let's think this through here. What if the Supremes took the Schwarzenegger case to overturn the Ninth Circuit and to uphold the right of state governments to regulate the sale of "violent" video game content, however that's defined. Let's consider such a potential holding in light of two other free speech cases handed down over the past few years.

The recession has been many things to many people. For most of us, these are trying times, to say the least. But like a newscaster or mortician who profits from some of life's worst experiences, the states see the recession somewhat more optimistically than the rest of us.

Sure, in the next fiscal year states face nearly $180 billion in budget deficits, with many in dire straits (as this somewhat hyperbolic article touches upon). Yet, letting no crisis go to waste, this has honed where many of those cash-strapped states are looking for their next meal.

The Wall Street Journal recently noted that the slump has brought back to life an idea that many of us thought had died - requiring e-retailers to collect sales tax from out-of-state customers. The state's new tool of choice? The so-called "Amazon.com tax."

It works like this.

Remote / online merchants that have "local marketing affiliates" (i.e., entities essentially operating website pointers to remote merchants) in a given state, must collect state sales taxes for customer purchases of their products - all because the "local affiliate" in that given state pointed any sale (not even the specific sale) to the out-of-state retailer. This controversial tool (now being contemplated by 6 states, and in effect in 3 others) allows states to get around constitutional requirements of physical presence in a state to collect sales taxes. It also gets around the inconvenient fact that in most states with sales taxes, customers largely ignore their obligations to pay that tax (e.g., use tax) if it isn't collected by the Internet / remote merchant.

There is an essay in the February 8th edition of Newsweek by Dahlia Lithwick in which she lauds a Justice on South Africa's Constitutional Court for taking an openly personal approach to the judicial function, and castigates our own Supreme Court Justices for aspiring to "be machines" that just "call balls and strikes." ("The View From the Bench: Why Judges Should Get Personal") I stumbled upon this article just after hearing a local news reporter interview a Super Bowl official from my area who had recently returned. In the interview, the reporter wondered how NFL officials can possibly remain impartial -- "they must," the reporter opined, "have favorite teams after all."

I don't know if Ms. Lithwick is a football fan, but she ought to think about how the NFL would operate if my local news guy was right. If, on any given Sunday, the officials operated as adjuncts to one or the other of the teams on the field, chaos would ensue. No fan of the sport could have any confidence that superior skill on the field would necessarily translate into victories, teams would have an incentive to "invest" in officials, and players could have their careers negatively or positively affected as much or more by their personalities than their athletic ability. In short, the NFL (or any contest that we expect to be decided on the merits for that matter) could not function absent neutral rules applied impartially.

It is stunning that presumably educated people such as Ms. Lithwick can have this very basic concept to slip through their mental grasp. Our fundamental freedoms and the equal protection of the law depend upon 1) the establishment of rules that apply with equal force to all similarly situated people and 2) when disputes arise regarding their application, it is arbitrated by a disinterested party who in good faith aspires to decide the dispute on the merits rather than his or her own predilections. Indeed, the first principle (neutral rules) means nothing absent the second (a neutral judge of behavior pursuant to those rules).

It is for precisely these reasons that we demand that government officials (including judges and Justices) disclose any financial or other interests that they might have that would prejudice their conduct or decision-making, and that we ask those who may have a personal interest in a case or matter to recuse themselves. People are people, after all, but we hope that we can insulate their personal interests sufficient to allow them to "call balls and strikes" impartially.

The scariest aspect of Ms. Lithwick's essay is that she not only seems to reject that model, but that she does so in the belief that somehow it would help those less powerful (the proverbial "little guy") if judges took their cases more personally. The little guy's best hope is instead a level playing field. Those who control the levers of power, if allowed to operate consistent with their own biases and interests, will do nothing but cement that power. Ms. Lithwick's model is a recipe for ensuring that the little guy is forever on the outside looking in.

The FCC has filed its brief in the remand of the Janet Jackson case. It of course describes its own path through the byzantine history of indecency regulation to justify the Commission's determination that the half-time show of a Super Bowl that took place more than five years ago was indecent. Whatever we may think of the legal arguments, one fact is becoming apparent: this case is many, many years from final resolution.

The case first worked its way to the Supreme Court on pure administrative law questions. The truly problematic nature of the Commission's decision - its insistence on applying a different and more puritanical standard to this one last little corner of the vast media universe - was left to the side. It remains there.

Now the Commission is asking the appeals court to remand the case to the Commission yet again so that it can determine whether CBS's conduct was "willful" (by which the FCC means "reckless"). If the court accedes to that request when it issues its decision later this year or in early 2010, further pleadings will have to be filed at the FCC, the Commission will presumably move at its customary costive pace, and a subsequent FCC decision limited to the new question of CBS's "scienter" can be expected perhaps by early 2011.

Given that the FCC already has made it clear that it believes CBS's conduct in this matter to have been actionably "willful," its decision in 2011 explaining that conclusion likely will be appealed. Based on the proceedings thus far, it is fair to assume that each further appeal in this process will take more than a year to be briefed, argued, and resolved. That is, we are likely to be well into 2012 by the end of the next stage of appeals.

From that point, it is harder to predict the course that the case will take, but we can be sure that it will be protracted. Like a steamed dinner, this case will not be fully cooked for quite some time. For, whichever side prevails in the inevitable next appeal, there is a fair chance that the case will go again to the Supreme Court, which could well be followed by further proceedings on remand; all still before the question of whether this whole charade is constitutional is squarely addressed.

Can we not all agree that there is something wrong with this process? The media landscape has changed dramatically, even since that fateful day in 2004 when Justin Timberlake pulled the veil from the now senescent Ms. Jackson, and it will likely be unrecognizable by the time any final conclusion in this matter is reached - which could be another ten years hence.

The problem is that the wheels of justice turn slowly while the wheels of technology propel the media markets ahead at a blistering pace. We simply can't go on pretending that broadcasting is what it was in the 1970s, 1980s, or even in the 1990s. The markets have changed, the number of program options has grown, consumers' usage patterns have become more varied and variable, new delivery platforms have evolved, and the technologies available to manage media on a personal level - especially for parents - have become ever more sophisticated. It is time the "expert" agency recognize the media revolution that has occurred and abandon its holy war on broadcasting.

My colleague, Berin Szoka, worries about 195 independent countries each regulating the Internet:

[I]t's likely to cause, at the very least, many companies to limit access to their sites or services by persons from countries with burdensome regulatory approaches. Even if those foreign laws are well-intentioned and laudable... the result could be to balkanize Internet services.

Szoka argues that Americans are better off because Congress or the federal courts can override burdensome regulation by the States. Others are worried too, and not just about the Internet. Financial regulators have long sought to harmonize regulations across borders, with the European Union leading the way. Szoka would prefer less regulation to harmonization, but if local regulators will not stay their hands voluntarily, a single set of regulations seems preferable to many overlapping, and often contradictory, regulatory regimes.

Yet the question remains of what these regulations should be. The Nobel Laureate Friedrich von Hayek argued that the perfect laws cannot be designed but must evolve over time through a process of trial and error. Americans are better off, not because the federal government can override regulation but because the States are, as Justice Louis Brandeis put it, "laboratories of democracy." Americans have the benefit of trying 50 different regulatory approaches and allowing the market to decide which approach works best.

One could easily look at the Internet today and see that the many different standards and protocols in use are wasteful and burdensome. Yet the many competing standards, and the continuous innovation that drives them, are the engine of growth in the Net economy. Picking a single standard and enforcing that standard would cause innovation to stagnate. Likewise, the burden imposed by competing regulatory regimes is outweighed by the benefits of innovation in the market for law.

Rather than creating a need for standardization in the law, globalization makes regulatory competition more effective. Some companies will choose not to offer content or services in countries with burdensome regulations but this will send a strong signal to those countries to change their regulations. Countries with effective regulations will be able to attract businesses more easily thanks to the web and other countries will have more incentive to replicate the most successful rules.

Competition is likely to lead to less burdensome regulation, so much so that many advocates for harmonization are concerned about a "race to the bottom." Competition can override the preferences of governments - websites around the world are hosted on American servers because the U.S. has stronger Free Speech protections - but not of consumers. Evidence from financial markets (subscription) has found that consumers are attracted to jurisdictions that offer strong protection of property rights: both from fraud and deceptive business practices, and from special interests who can corrupt the law to their own ends.

The Internet has, and will continue to, create new challenges for lawmakers which even the brightest economists and legal scholars will not be able to answer. As tempting as it is to assume we have all the answers, be it less regulation or better regulation, only trial and error can tell us for sure which approach is best.

Robert Corn-Revere, a partner with the law firm of Davis Wright Tremaine and one of America's greatest living defenders of the First Amendment, has a new essay up on the Media Institute website entitled "The Terminator Cometh." Corn-Revere takes on the former Terminator himself, California Gov. Arnold Schwarzenegger, who along with other Calif. lawmakers, has asked the Supreme Court to review a Ninth Circuit Court of Appeals decision holding that a California video game statute was unconstitutional. (More background in my previous post here).

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). Corn-Revere points out why this case is so important:

In seeking review, California is asking the Supreme Court to reverse 60 years of First Amendment jurisprudence and to hold that "excessively violent" material -- whatever that may be --"deserves no constitutional protection." It is also asking the Court to relieve government from actually having to demonstrate the purported harmfulness of speech it seeks to regulate, but instead to defer to "reasonable inferences" and "legislative judgments."

In other words, Corn-Revere notes, "the state is asking the Court simply to lower the bar so that protected speech may be regulated based on legislative whim." He continues:

Thus, like the Terminator, no matter how many times you kill it, the government drive that motivates these laws keeps on going and going until it achieves its programmed goal. If California is successful, it will open the door to regulate not just video games, but a wide range of speech that is currently protected under the First Amendment.

Corn-Revere is right. The ramifications of this case could be profound. As I pointed out in my previous essay on this case:

With today's historic Supreme Court decision in FCC v. Fox, I have been commenting on the logic and implications of the decision. Part 3 dealt with the majority's decision in the case, which was driven solely by procedural / admin law considerations. This installment will discuss the very interesting concurring opinion penned by Justice Thomas, which is the only one that takes a serious look at the constitutional foundations of the FCC's current regulatory regime. While I was sad to see Justice Thomas join the majority's decision upholding the FCC's radical expansion of speech regulation in recent years, he joined that majority only on straightforward procedural grounds. On the underlying constitutional issues at stake here, it is clear from his concurring statement that he is ready for the Court to hear a challenge to the previous court precedents and traditional regulatory doctrines that have long supported FCC speech and media controls.

"I write separately," Justice Thomas says "to note the questionable viability of the two precedents that support the FCC's assertion of constitutional authority to regulate the programming at issue in this case." Specifically, he addresses the two key cases upon which almost all FCC speech regulation rests: Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) and FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Thomas continues: "Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity."

BOOM! With those words, Justice Thomas has dropped the hammer and taken what will hopefully be the first swing at toppling the house of cards that is modern FCC speech regulation. Justice Thomas goes on to itemize the many problems with what I have referred to as "America's Jurisprudential Twilight Zone" when it comes to how we apply the First Amendment to media platforms in this country. He states:

As I noted earlier, the U.S. Supreme Court today handed down a historical First Amendment decision in the case of Federal Communications Commission v. Fox Television Stations. The Court ruled in the FCC's favor by a 5-4 margin. My initial general thoughts are here. In this piece, I'll talk a bit more about the majority's decision in the case.
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The most important thing to realize about the Court's 5-4 decision in FCC v. Fox is that the Court has intentionally dodged all the serious constitutional issues in play here and instead decided the case solely on procedural grounds. "We decline to address the constitutional questions at this time," the majority says. (p. 26) Writing for the majority, Justice Scalia says:

There is... no basis in the Act or this Court's opinions for a requirement that all agency change be subjected to more searching review. Although an agency must ordinarily display awareness that it is changing position... and may sometimes need to account for prior fact finding or certain reliance interests created by a prior policy, it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one. It suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change adequately indicates.

Of course, it's not entirely unusual for the Court to decide important regulatory cases by sticking to administrative law / APA issues, but what's different in this case is that we're not talking about the regulation of widgets here. We are talking about the regulation of freedom of speech and expression. Shouldn't the administrative law analysis change a bit when the issues at stake implicate profound constitutional imperatives? I think so, but the majority doesn't address that.

Like many others, I have long been troubled by the fact that the Supreme Court does not allow TV cameras or live audio coverage of the cases it hears. I know all the arguments against live video or audio coverage and I find them all quite unconvincing when weighed against the public's right to hear the oral arguments and decisions that will have such a direct bearing on their lives and liberty. We should be allowed to see, or at least hear, these arguments and decisions as they happen.

Anyway, as I was reading through an article today in Broadcasting & Cable about how "C-SPAN Seeks Oral Argument Tapes in Fox Swearing Case," I couldn't help but think about how particularly ironic it was that our nation's highest court would be considering one of the most important free speech cases in decades -- FCC v. Fox -- and it yet wouldn't be allowing any of us to listen in live when it takes place on November 4th! If we are lucky, the Court might grant C-SPAN expedited access to the tapes of the arguments, but it may be that we have to wait many weeks to hear what was said.

Seems silly to me. Worse yet, it means I will have to camp out in front of the Supreme Court the night before and freeze my butt off in the hope of getting a seat in the courtroom to hear the live argument! Which brings up the final bit of irony I always like to point out about restricting cameras and microphones from courtrooms: Why are they letting anyone in the courtroom at all if they so fear instantaneous public access to the arguments?