As Predicted, Ninth Circuit Court Of Appeals Upholds Permanent Injunction Of CA Sales Law
Posted by Liz Surette on February 21, 2009Today, the Ninth Circuit affirmed a federal District Court’s ruling that California’s statute restricting the sale of violent video games to minors was unconstitutional.
You can find the opinion of the court here.
Here is the contested statute.
Despite the state’s best efforts, the court did not accept their proposition that violence be treated as obscenity for the purpose of restricting the access of minors. Simply put, violent video games are not obscene because they do not appeal to the prurient (sexual) interest. Therefore, violent video games are not in any category of unprotected speech, and the so court applied the Strict Scrutiny test I have discussed before.
Strict Scrutiny
Since the District Court decision, the state of California has clarified the interest that they are asserting as “preventing psychological or neurological harm to minors who play violent video games”, while dropping one of their earlier claims that they are advancing the cause of “preventing violent, aggressive, and antisocial behavior”. Although the Supreme Court has said that protecting children is a compelling government interest, the Ninth Circuit took issue with the state’s failure to prove that violent video games do in fact cause harm to minors. Even if the state’s interest had been compelling, the state did not prove that there were no alternatives to the statute that were less restrictive. The court went on to acknowledge the game industry’s enforcement of ESRB ratings, parental controls on consoles, and education campaigns as less restrictive measures that might further the state’s interest. Because the state did not show why those alternatives would be ineffective, the statute was not narrowly tailored.
Labeling
The statute also required that each video game deemed “violent” be labeled with a white, 2×2 inch “18″ on the front. This labeling provision is also unconstitutional because it is compelled speech–the state may not force anyone to espouse its opinions. The government may compel labeling of products with “purely factual and uncontroversial information” (such as a warning that a product contains mercury) if such labeling is reasonably related to a government interest. Here, a sticker with the number “18″ does not contain undisputed facts, but the state’s view that the game is not to be sold to a minor.
Appeal
GamePolitics once again reports that the losing party wants to appeal this case to the Supreme Court. For our discussion on whether the Supreme Court will take this case, go here.
As someone who has closely followed this case and a similar statute here in Massachusetts, I was very happy to read that the lower court was affirmed. However, the matter is not completely resolved. I look forward to bringing you any news and analysis of the appeal.
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I for one would love to see this be appealed and granted cert. A SCOTUS decision putting this issue to rest once and for all would be a huge boon to the industry’s advocacy agencies, being able to say “Sorry , you can’t pass that bill due to the Supreme Court’s decision in Schwarzenegger v. VSDA.” (Presumably that’d be the new name if it were brought up to SCOTUS)
At the same time, I applaud the Ninth Circuit for their decision not only to protect video games as a form of speech entitled the highest levels of constitutional scrutiny, but also to protect them from compelled speech on behalf of the state.
The Ninth Circuit’s predictable but nevertheless bizarre and absurd ruling is based upon its adoption of the notion that there is no causual link between violent game play by teens and behavior changes. The American Psychological Association has found that there is such a causal link, not a mere correlation as the court asserts.
So, how dumb are most federal judges. Answer: Very. But don’t worry, my Utah bill avoids all of this. Sweet!
Jack Thompson
Actually, Jack, your Utah bill doesn’t avoid it, since it’s still based on restricting sales based on content. So it’s still unconstitutional under the First and Fourteenth Amendments. And unconstitutionally broad(it’s possible under it that a sale of a T-rated game to someone under 13 would be illegal under the bill) and vague at the same time. Besides that, you’re still basing it on what amounts to less than 1% of all video game sales.
The APA itself has even said that there isn’t a “causal” link. Get it right. And that now makes ten or eleven court decisions that have rejected that flawed junk science research you claim as “proof”.
Count your lucky stars that Utah’s even hearing that pile of garbage you call a bill, considering that all that bill’s really going to do, if it’s even ruled constitutional, is force the retailers to drop their ID policies, since you can’t advertise what you don’t have.
Practice what you preach: Grow up and get a life.
Awww, how cute, Thompson still believes the toilet tissue he wrote on will still pass.
Hey John Bruce,
I thought you said that the California law was unconstitutional. I remember you said that many times during the original trial. You even said you contacted Yee about it unconstitutionality. Now you are saying that those idiot judges share your very own view on the law. What does that say about you?
@EZK:
Nothing good, that’s for sure.
@JT
You keep saying the APA found this supposed “causal” link between violence and video games. Since I’m doing my Senior Project on video games and violence, why don’t you post the PROOF they found so I can add it in? Or does it not exist? If it doesn’t, stop saying it does. And if it does, as I said, Show it to us.
Just as planned, eh, Jackie?
Yes the APA put out a press release about videogame violence. On the panel was Craig Anderson and lots of people who have coauthored papers with Anderson. The judge specifically calls Anderson out for bad science. So I guess he isn’t as dumb as some disbarred people think.
One thing Jacko’s Utah bill will also avoid is actually doing anything. So I guess there is a lot of similarity between that bill and the one in California that has been thrown out…
actually Jack, the ruling was based on the quote “The government may not restrict speech in order to control a minor’s thoughts…”
seems like you can dish out the “thought police” card but you can’t take it.
Jack,
Why is it that 10 different courts have found the “science” lacking? If there was a true, proven causal link between video games and violence, don’t you think ONE court in this country would uphold a law restricting sales? The problem is, your reading comprehension skills are dirt poor and you see only that which you wish to see in these scientific studies while failing to read all the caveats to the studies. That’s why the laws are failing and will continue to fail.
And your Utah law? It does nothing. It will actually HURT the cause you’ve been advocating as stores will simply not advertise or claim that they won’t sell to minors. It’s hardly irony that a guy who was a complete failure as a lawyer would draft a bill as utterly toothless and meaningless as this one. Revel in your “victory,” though I still wouldn’t be shocked if it got thrown out in court.
It’s still unconstitutional under the First and Fourteenth Amendments. And unconstitutionally broad(it’s possible under it that a sale of a T-rated game to someone under 13 would be illegal under the bill) and vague at the same time.
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