Schwarzenegger says “I’LL BE BACK….in court to appeal the injunction on my video game sales law”. Part 1

Posted by Liz Surette on September 15, 2008

Introduction

As you may know, on October 29^th the Video Software Dealers Association and the ECA will square off against Schwarzenegger and other California state officials in the latter’s attempt to have the injunction on his game sales restriction law terminated—er, dismissed. Most gamers opposed the law which prohibited the sale of violent games to minors because it offends the First Amendment. However, many people don’t know exactly how or why. In the coming days, I will break down the judicial process and explain how First Amendment cases of this type are decided, how those principles relate to the statute at hand, make comparisons to similar statutes from other states, give a legally-informed prediction as to the outcome of the appeal, and maybe shed light on a few other legal issues along the way.

A little background

The statute

In 2005, Schwarzenegger signed into law California Assembly Bill 1179, which prohibits the sale or rental of “violent video games” to minors. Briefly, the statute’s definition of “violent video game” is one where “the range of options available to the player includes killing, maiming, dismembering, or sexually assaulting an image of a human being”. Those acts must fall within one of two categories the meet the definition.

The first is that the acts must appear to a reasonable person to be appealing to the morbid or deviant interests of minors, must be patently (ie obviously) offensive to community standards as to what is suitable for minors, and must cause the game as a whole to lack serious literary, artistic, political, or scientific value for minors.

The other way for the game to be considered violent under the statute is if it “enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim”. The words “cruel”, “depraved”, “heinous”, “torture” and “physical abuse” are further defined. The language of the law gives the specific examples of gratuitous violence, needless mutilation, and helplessness of the victim to illustrate what could be considered cruel, heinous, etc.

The Preliminary Injunction

A preliminary injunction is a temporary court order given after a complaint (initial court document written and filed by the plaintiff explaining to the court why they are suing and what relief they are asking for) is filed. In October of 2005, the Video Game Software Dealers Association and the Entertainment Software Association filed just such a complaint and commenced Video Game Software Dealers Ass’n v. Schwarzenegger. Two days later they successfully moved for a preliminary injunction. In the context of laws that are challenged as unconstitutional, a preliminary injunction stops officials from enforcing the law and will be awarded at the discretion of the judge if certain requirements are met. In California, a party seeking a preliminary injunction must show a likelihood of success of their lawsuit on the merits of the case, a possibility of irreparable injury if the preliminary injunction is not granted, that the applicant faces more hardship than the non-moving party, and that the injunction is consistent the public interest.

The court found the plaintiffs likely to succeed on the merits of the case because video games are entitled to First Amendment protection, and any content-based restrictions on them must pass a very strict judicial test (to be discussed later). The plaintiffs have also shown potential irreparable harm because the Supreme Court has said “the loss of First Amendment freedom, for even minimal periods of time, unquestionably constitutes irreparable injury”. (See Elrod v. Burns). Compliance with California’s new law would cause substantial hardship to the game industry due to the considerable expense of implementing the new labeling and monitoring system mandated by the statute. The court also found that the public interest equally favored the plaintiffs’ right to free expression and the defendants’ right to legislate that was given to them by the people. Justice Whyte accordingly granted the preliminary injunction, which would prove to be an indication of the eventual turnout of the suit.

Coming Up

I will discuss the court’s findings during the actual trial, the Strict Scrutiny test the court applied, the result, and the California government’s present appeal

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