Schwarzenegger says “I’LL BE BACK…in court to appeal the injunction on my video game sales law”. Part 2
Posted by Liz Surette on October 27, 2008Introduction
This is (the long-delayed) Part 2 of my analysis and prediction of the outcome of Schwarzenegger’s appeal to get his video game sales restriction law reinstated. Here, I will give more background information on the proceedings in which a California Federal District Court struck down the statute. My mission for this series of articles is to give readers an understanding of exactly how a court finds a speech-restricting law unconstitutional. As such, I will start with a brief tutorial on the relevant judicial process, followed by application to this specific case.
You can find Part 1 of my analysis here.
1. Constitutional Law Crash Course (you’re welcome)
A. Strict Scrutiny
Content-based regulations of speech are presumptively unconstitutional. See RAV v. City of St. Paul. A state may limit protected speech based on content only if the regulation is narrowly tailored (uses the least restrictive means) to further a compelling state interest, and if the state demonstrates that the regulation actually does so.
B. Imminent Lawless Action Test
The most common rationale for restricting sales of video games to minors is that violent games will cause them to commit violent acts. Whenever a state wants to regulate speech on these grounds, the regulation must pass the Supreme Court’s Imminent Lawless Action Test laid down in Brandenburg v. Ohio. To show that the speech should be unprotected, the state must prove that the speech in question was directed to incite imminent, lawless action, and that it is likely to result in such action.
Although parents often fear undue influence on their children’s tender minds, minors are still entitled to a significant measure of First Amendment protection. In most circumstances (with the exception of obscenity for example), minors enjoy the same First Amendment protections that adults do when the government attempts to control the flow of information. See Erznoznik v. City of Jacksonville.
The principle of stare decisis simply means that a court will use the same rules and standards it created previously to decide similar cases presently. “Standing by the decision” is the observance of precedent. For example, the District Court here used the Supreme Court’s test from Brandenburg v. Ohio (regarding a law restricting dissemination of an unsavory philosophy) to decide that the law restricting the sale of video games in this case was unconstitutional. Occasionally, courts will depart from that practice if they feel that the prior cases were decided wrongly (see Brown v. Board of Education, overturning Plessy v. Ferguson) but we need not get into that today.
2. The Honorable Justice Whyte’s Findings
A. Video Games are Protected Speech Under Brandenberg
Although video games are a relatively new medium, federal courts rightly understand that the First Amendment protects entertainment based on its own artistic merits, the medium need not present any particular political or ideological message to be protected.
Because video games are protected, the Brandenberg test applies. Although the CA Legislature made “findings” that violent video games cause children to become aggressive or otherwise psychologically damaged, the State presented no evidence that violent video games are purposely directed to inciting imminent lawless action, or that playing them causes real-world violence. The court dismissed the state’s assertion that playing violent games increased the statistical probablility that a child will become violent, because that assertion is not sufficient to show that any lawless action would be imminent.
Although the Supreme Court has recognized that protecting the physical and mental health of minors is a compelling interest, however this statute unduly interfered with First Amendment freedoms and was not narrowly drawn to advance that interest. The state (and indeed all states in which video games sales restrictions were struck down) has failed to show a causal link between exposure to violent video games and violent acts in children under 18. The statute does not use the least restrictive means of protecting minors’ health because it makes no distinction between a 13-year-old and a 17-year-old who will turn 18 in an hour. Also, the state has not demonstrated that less restrictive measures already in place, such as the ESRB rating system combined with parental controls on consoles, do not adequately further their interests. Further, there is no evidence that the interactive nature of violent video games makes them any more dangerous to minors than violent films, music, or internet sites–all of which come from self-regulating industries analogous to the game industry.
3. Grounds For Permanent Injunction
A permanent injunction against enforcement of a law is granted when a plaintiff demonstrates success on the merits of their case, that irreperable injury will result if the injunction is not granted, that the threatened injury to the plaintiff outweighs the harm the injunction would cause the defendant, and that the injunction would not offend the public interest. Justice Whyte’s analysis of these factors was mostly identical to his assessment when he granted the preliminary injunction, except that a plaintiff must actually win based on their arguments to get a permanent injunction, rather than just show that they are likely to win.
Coming Up
I’ll make a comparison between this statute and another similar statute from another state that was struck down (only one due to time constraints), and give my prediction regarding Schwarzenegger’s present appeal.
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