VSDA v. Schwarzenegger Likely To Go All The Way Up

Posted by Liz Surette on October 29, 2008

GamePolitics reports that the parties in the California lawsuit over a statute banning the sale of violent video games to minors may have finally agreed on something….the determination of the loser to appeal to the Supreme Court. Neither side wants to give an inch. California’s Deputy Attorney General Zackery Morazzini remarked to the Tribunal: “the Supreme Court has left that door wide open” in his arguments comparing video game violence to obscenity. Justice Callahan agreed with the state that violent games are “disgusting” but warned “aren’t you just trying to be the thought police?”

The Ninth Circuit is being asked by the state to depart from a massive body of precedent and be the first one to hold that interactive violence equals obscenity, and therefore video games to not enjoy the same protections under the First Amendment as other art forms. They are right to be reserved and hesitant in doing so, and should they decide to uphold the injunction, the state will most likely petition the Supreme Court for a writ of certiorari. On the other side, the game industry’s representatives will do the same in the unlikely event that they lose. But, if reports of spectators are correct, it matters not because either way we’ll have a Supreme Court case on our hands. The Supreme Court will usually take cases in which there is a circuit split–ie. when the different federal circuits disagree on a major legal issue that must be addressed. If the Ninth Circuit finds for the state, they will be up against every circuit that has faithfully applied Brandenburg v. Ohio (see my other posts on this topic for more details). This matter is more pressing because it involves the freedom of expression that is “the indispensable condition of nearly every other form of freedom”. [1] Furthermore, video games are a question of advancing technology that the Supreme Court may wish to settle in order to create precedent involving this relatively recently contested medium.

If this case does go to the Supreme Court, I can only imagine the outcome. I want to believe that they will interpret the Brandenburg line of cases faithfully and find that video games are not directed to inciting imminent lawless action, and that they will duly apply Strict Scrutiny in its most rigid and objective form. Hopefully, the Court of Appeals will find that there is insufficient evidence for the state to establish narrow tailoring of the law to the compelling interest of protecting minors’ health. If that is the case, the game industry will have a much better chance–barring the possibility that a flood of peer-reviewed, credible studies proving a causal link between playing violent video games if one is under 18 and becoming violent emerge between now and then, or barring the possibility that the Court will ignore Brandenburg and Strict Scrutiny altogether. If I thought the Court would be perfectly objective in every way, I could tell you that they would strike down this law thanks to stare decisis. But the nine Justices are human, so unfortunately I can’t make that prediction with all my confidence.

To be honest, as swamped as I am now….I wouldn’t mind helping with an amicus brief. Hmm…

1. See Palko v. Connecticut.

Popularity: 3% [?]