California appeals VSDA v. Schwarzenegger to SCOTUS
Posted by Dan on May 20, 2009The State of California has appealed their loss in the VSDA case to the U.S. Supreme Court, asking for a grant of writ of certiorari on the following questions:
1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?
2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?
(see pet. for cert. here in .pdf format)
In response, the EMA (formerly the VSDA) had this press release:
Statement of Sean Bersell, Vice President – Public Affairs, Entertainment Merchants Association (formerly Video Software Dealers Association), on the decision of the state of California to ask for U.S. Supreme Court review of the court ruling finding California’s video game restriction law unconstitutional:
“It boggles the mind that, on a day when the state of California finds itself in the worst fiscal crisis it has ever faced and is considering massive layoffs of teachers and cuts to public services, the state would choose to waste tens of thousands of dollars on pursuing this frivolous appeal.
“This law was found by two lower courts, relying on long-established legal precedents, to be unconstitutional as an infringement of the First Amendment. There have been eight similar laws enacted around the nation this decade and every single one has been found unconstitutional on similar grounds. There is no reason to expect a different outcome in the Supreme Court.
“So far, this case has cost the state of California approximately $400,000 just in legal fees and court costs that it has had to pay the plaintiffs. This doesn’t even include the state’s legal fees and costs. And if this appeal is unsuccessful, as it will be in all likelihood, the state will owe the plaintiffs even more in legal fees and court costs.
“The taxpayers of California should demand that their elected officials stop wasting precious tax dollars on this quixotic quest.”
For background on the VSDA v. Schwarzenegger case, please see http://www.entmerch.org/schwarzenneger.html.
I’m putting my money on the court either denying cert, or granting for a summary decision. Neither of the questions are substantial points of law that SCOTUS should need to make a decision on; they’re both well settled in VSDA/EMA’s favor, under SCOTUS precedent. Furthermore, there are to my knowledge no circuit splits on the questions that would prompt SCOTUS to make a ruling. Finally, even if they did, the second question in the petition is partially irrelevant to the outcome because even if no direct causal link was required, the law was facially unable to meet strict scrutiny anyway. For these reasons, I’m willing to bet that the court will either deny cert, or summarily uphold the 9th Circuit’s decision. We’ll keep you updated as we hear more.
Popularity: 14% [?]
I already said this on GamePolitics, but I’ll repeat my answers to the two questions here.
1)Yes, the First Amendment does indeed bar legislation against selling “violent” video games to minors.
2)Yes, the state is required to provide a “direct causal link”. Since you are directly contradicting a constitutional amendment(even with the “yelling ‘FIRE!’ in the crowded theater” argument), you need absolute proof that the speech in question is “harmful”. It’s never been done, and never will be.
Besides that, not only is the evidence against California, the statistics are against California as well, since M-rated game sales to minors only represent less tham 1% of all video game sales, making their argument ludicrous.
It’s really pathetic on California’s part to make a longshot appeal on this clearly unconstitutional pile of crap with the state being $21 billion in the hole.
The second issue borders on frivolous. All that deference-to-the-legislature language from Turner in CA’s petition is lifted from the Court’s application of INTERMEDIATE SCRUTINY to a content-neutral law that required cable companies to carry local broadcasts, not a law that explicitly restricts speech based on violent content.
I don’t see anywhere that the 1st Amendment bar legislation against selling “violent” video games to minors. Pornographic magazines are bar from selling to minors so CA does have a case.
With that said the majority are now originalist so strict scrutiny favor the video game industry.
jdun: are you serious?
@ Dan,
Yeah some people are blind to judicial precedence. Just like arnold and the California DA.
@ jdun
Supreme Court precedent says that “indecency” and “obscenity” only applies to sexual material, so yes, the First Amendment does indeed bar legislation against “violent” video games.
Well, Yee and the eagle forum just cemented the video game law’s petition to be denied
It’s funny how the cases thus far have included only sex, but not violence, under the definition of obscenity.
That’s because the obscenity as a term of legal art has a special relationship with sex. From Blacks Law Dictionary: Obscenity: “the characteristic or state of being morally abhorrent or socially taboo, esp[ecially] as a result of referring to or depicting sexual or excretory functions.”
Add A Comment