Pending Supreme Court Case US v. Stevens Has Implications for the Game Industry
Posted by Liz Surette on October 19, 2009Most attempts by state legislatures to censor the game industry involve statutes which prohibit the distribution of ”violent video games” to minors. However, these statutes have invariably been stricken down by federal courts because they sought to restrict distribution of games, the contents of which fell into a category of speech (violence) that is protected under the First Amendment and the respective states could not show the requisite danger of imminent lawless action that the First Amendment requires in order to restrict speech that is protected(1). Very recently in VSDA v. Schwarzenegger, the Ninth Circuit struck down one such statute for that reason(2). Through this and other examples, we see that courts are loathe to create new categories of unprotected speech, or to expand the categories that are already unprotected(3). On October 6th, the Supreme Court heard oral argument in US v. Stevens, which challenges the Constitutional validity of a federal statute that prohibits the creation, sale, and possession of depictions animal cruelty. Due to the insight into the new Court roster’s attitudes on First Amendment issues that Stevens will offer, we are watching closely. Hit the jump for an in-depth analysis.
The statute(4) at issue in US v. Stevensprohibits the creation, sale, and possession of “depictions of animal cruelty” with the intention of placing such depictions into interstate or foreign commerce for commercial gain. “Depictions of animal cruelty” are defined as those in which “a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the state in which the creation, sale, or possession takes place…” Additionally, the statute contains a safe harbor provision which is nearly identical to those seen in statutes that restrict obscenity, which is an unprotected category of speech. In any content-restrictive statute in any state, the safe harbor provision will hold exempt from restriction depictions of obscenity which have serious political, religious, literary, scientific, educational, or artistic value. This is the general gist of the safe harbor provision in the animal cruelty depiction statute, albeit w ith slightly different wording. However, we have seen that if a statute invalidly restricts the content of a protected category of speech, even a safe harbor cannot save it(5).
Though seemingly unrelated to the game industry, US v. Stevenswill no doubt be a landmark First Amendment case–the outcome of which will have lasting effects on state and federal attempts to regulate the content of games for years to come. After being convicted under the statute at issue for selling dog-fighting videos, the defendant Robert Stevens challenged the statute on its face, arguing that it is an unconstitutional infringement on the freedom of speech. The U.S. Court of Appeals for the Third Circuit agreed, declining to adopt the government’s reasoning that depictions of animal cruelty are akin to child pornography, and holding that such depictions are protected speech because they do not fall within any of the narrowly defined categories of unprotected speech. Regular readers of GamesLaw will recall that when a statute restricts the content of speech, it must be narrowly tailored to advance a compelling government interest and use the least restrictive means to do so(6). The Third Circuit held that though animal protection may be a noble moral interest, it is not sufficiently compelling as to “trump an individual’s free speech rights”(7). Further, the government failed to prove that the harms caused by cruelty to animals followed directly from the depictions of such(8). As for the safe harbor provision, if that alone were to render an otherwise unconstitutional statute valid, then there would be no limit to the speech that government could regulate(9).
You can find the Third Circuit’s opinion here.
Should the Supreme Court affirm the Third Circuit, this will have positive implications for the game industry. Because the states attempt to regulate the distribution of games based on content by analogizing violence to obscenity, to affirm US v. Stevens would strengthen the argument that this is not acceptable due to a lack of compatibility with the very narrowly drawn categories of unprotected speech. Reviewing courts have recognized time and again that a safe harbor provision (such as the one in the California statute stricken down for the unconstitutional restriction of depictions of violence in video games by the Ninth Circuit in VSDA v. Schwarzenegger) does not save an unconstitutional content-based restriction of speech(10). If the Court continues to do so and agrees with the Third Circuit, then the argument that the safe harbor clause in California statute does not render it valid will be easier still.
As we reported some time ago, California is appealing VSDA v. Schwarzenegger to the Supreme Court. Should the Court issue an opinion, it will become the leading case in First Amendment law as it relates to the game industry. Because states attempt to regulate the artistic content of video games by attempting to withhold Constitutional protection from depictions of violence, the industry can only benefit from the Court’s refusal to create new categories of unprotected speech.
Though very interesting and robust, the oral argument alone cannot be a predictor of the Supreme Court’s decision. We look forward to bringing you future developments and analysis.
No doubt what I have written tonight will cause a few sparks to fly, particularly among those who would support the statute at issue in Stevens. So I will leave you with the thought that no matter what morals we have, no matter our beliefs, the greatest test of our commitment to upholding, embracing, and appreciating the freedom of expression is our willingness to protect even the speech that we hate.
1. See Brandenburg v. Ohio, 399 US 444 (1969)
2. See VSDA v. Schwarzenegger, 556 F.3d 950 (2009)
3. For an example, see Ashcroft v. Free Speech Coalition, 535 US 234 (2002), in which the Supreme Court held that while child pornography is outside of First Amendment protection, it refused to expand the prohibition to that pornography which lacks actual children.
4. 18 U.S.C. 48 (1999) http://www.law.cornell.edu/uscode/18/usc_sec_18_00000048—-000-.html
5. VSDA v. Schwarzenegger, 556 F.3d 950 (2009)
6. Brandenburg, 399 US 444 (1969)
7. US v. Stevens, 533 F.3d 218, 226 (2008)
8. Id at 228
9. Id at 232
10. See VSDA v. Schwarzenegger for one example
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Could the similarities of VSDA(EMA) v. Schwarzenegger to U.S. v. Stevens be why the Supreme Court has not taken action on California’s appeal yet?
The last action taken on California’s appeal was being on the Sept. 29th long conference.
Unless the Stevens decision ends up so broad that it applies to fictional depictions of animal cruelty, I fail to see how a decision against Stevens would end up harming the game industry. Even if the court decides against Stevens, as long as the decision is narrowly tailored such that content producers must somehow be complicit in real-life animal abuse to be found guilty under the law the game industry will be fine.
The Court will take action eventually, whether it is to grant or deny cert. It will just take awhile longer.
Adrian, if they were to rule against Stevens and hold that the statute is constitutional, then that would mean they are willing to create new categories of unprotected speech. The reason that content-based restrictions on video game sales to minors have failed to pass muster so far is because “violent” material is not unprotected by the First Amendment, and therefore it’s much harder for a state or the federal government to show that the statute does not offend the First Amendment. As for your point about fictional/simulated vs. actual depictions, adult obscenity (which states like CA try to analogize extreme violence to) does not require that the depictions involve actual people.
The law at issue in Stevens mentions “a living animal … intentionally maimed, mutilated, tortured, wounded, or killed”. The question, then, is whether the law should be interpreted as applying to the speech itself (where the mere depiction is enough to satisfy the law, whether or not actual abuse took place) or as applying only to dealing in materials derived from real-life abuse, and whether it should or should not apply to those who are not themselves responsible for the animal abuse but are instead only dealing in materials that others have created.
As always, the ultimate implications depend on how careful the judges are in choosing their language. Since the law in question involves living animals, I doubt it will have much impact on video games.
I spoke with Leland Yee’s Office. They claim (believably so) to have no knowledge as to why California’s Petition has gone into limbo but speculate that the Court awaits its own decision in another First Amendment case (the name of which they couldn’t recall off the head-top but which I presume is U.S. v. Stevens).
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