Please find the statute at issue in EMA v. Schwarzenegger here.

If you need some background info on VSDA / EMA v. Schwarzenegger, you can find information here and here.

1. Why the Court did not create a new category of unprotected speech, and why they probably will not do so in EMA either.

For those not familiar, First Amendment jurisprudence recognizes specific categories of speech that are minimally protected or not protected at all. If the speech restricted by the government, most often by statute in First Amendment cases, is outside of those specific, narrowly drawn categories, the court will apply the Strict Scrutiny test. In order to pass Strict Scrutiny, a content-based restriction on speech must be narrowly tailored to serve a compelling government interest and use the least restrictive means to do so—more on that later.

Here, the Government argues that even without historical precedent, new categories of unprotected speech can still be created if a weighing of the “value of the speech against its societal costs” falls more heavily on the latter. Because of New York v. Ferber (discussed below), the Government suggests that such a balancing test can be used to create new categories of unprotected speech all of the time.

As Chief Justice Roberts pointed out in the 8-1 majority opinion, to use this “balancing test” that the government relies on would put at risk of censorship a great amount, if not the vast majority, of the ordinary speech we make to each other every day because much of we say in ordinary conversation has little or no “religious, political, scientific, educational, journalistic, historical, or artistic” value. It is an alarming proposition that the states, municipalities, and the federal government could ban speech that they found objectionable “simply on the basis that some speech is not worth it” He goes on to acknowledge that while certain categories of speech, such as child pornography, have been described as having such slight or nonexistent value as to be outweighed by societal interests, those descriptions are just…well, “descriptions” and not the actual rationale behind the holdings.

In New York v. Ferber, the Supreme Court carved out a relatively new category of unprotected speech—child pornography. In the Stevens opinion, the Court made it quite clear that Ferber was very exceptional and that states will not be successful in analogizing just anything to it in order to create new exceptions to First Amendment protection. In Ferber, the state had a compelling interest in protecting children from abuse and the Court further found that the market for child pornography is intrinsically related to actual child abuse. While it could be argued that the market for crush videos is intrinsically related to animal cruelty, the Court in Stevens did not say that preventing animal cruelty was a compelling state interest. (More on that later, too.) I read Stevens’ interpretation of Ferber to mean that both a compelling state interest and an intrinsic relation between the prohibited conduct and the restricted speech (which could also inform a narrow tailoring analysis) are required at the very least to create a new category. If we were to apply that to the statute at issue in EMA, we may have a compelling interest in protecting children from psychological harm, but we find no causal relationship between video game violence and psychological harm to children, let alone an intrinsic relation between depictions of violence in games and violence in reality. I wonder if the Court would even go as far as I just did, given that it considers Ferber to be very, very, unique.

The balancing test that has been adopted was done so by the people in our social contract with our government by virtue of the First Amendment is as follows: the benefits of restricting the government itself, in this case its ability to regulate and restrict speech, outweigh the costs. Though crush videos are disgusting, and some video game violence is outright gratuitous and excessive, the government cannot simply decide that it wants to prohibit certain types of speech based on its own whims as to what it finds valuable and what if finds harmful. That is why the Court will probably not decide that virtual depictions of “killing, maiming, dismembering, or sexually assaulting an image of a human being” are unprotected speech in EMA v. Schwarzenegger.

2. Overbreadth—why the “safe harbor” exception won’t save the EMA law.

Overbreadth is a common cause of the downfall of statutes, particularly in the First Amendment context. To put it plainly, a statute will be adjudged overbroad, and therefore invalid, if it just so happens to sweep in speech that the government has no right to restrict (even if the government did not intend it to), as well as speech that it can. The rationale behind invalidating a statute for this reason is that a person will decline to exercise their right to free speech for fear of running afoul of the law—thereby resulting in the dreaded chilling effect.

Many statutes of all kinds have “safe harbor” provisions—exceptions that are written in as an attempt to protect citizens against unintended applications of the law. For example, it is well settled (see Miller v. California) that a law restricting obscenity must have a safe harbor because we acknowledge that oftentimes patently offensive depictions of sex should be permitted and are often necessary for literary, artistic, educational, or scientific purposes, even if the work they are contained in appeals to the prurient interest when taken as a whole. The safe harbor protects such works if they exhibit serious value, and so the local bookstore can sell erotic literature without fear of prosecution even if it cannot sell Hustler.

The law at issue in Stevens contains such a clause, which the Government argues should save it. Any depiction that has “serious religious, political, scientific, educational, journalistic, historical, or artistic value” is immune from prohibition. However, the safe harbor was not enough to alleviate the statute’s overbreadth because the word “serious” itself actually restricts the amount of protection that the safe harbor would give to speech that is outside of the crush videos, animal fighting (except Spanish bullfighting), or other extreme depictions of animal cruelty that the law was intended to prohibit. In addition to the high standard that the word “serious” implies, there is the problem that much speech that is usually protected (by default, I might add) simply does not have serious religious, political, scientific, educational, journalistic, historical, or artistic value. The Court uses recreational hunting videos as an example of how speech that should ordinarily be protected would not fall under the safe harbor because it is merely “recreational.” Also, the Government failed to justify its characterization of Spanish bullfighting videos as having inherent value and reconcile that with its notion that Japanese dog-fighting videos (one of which was one of the grounds for Stevens’ conviction) do not. In short, no reading of the safe harbor results in the government banning only the speech that it has specifically intended to and that is why it is overbroad and invalid.

We could easily apply these ideas to the safe harbor clause in California’s law restricting the sale of violent video games to minors. The statute exempts from its definition of “violent video game” (and therefore from the prohibition of sale to minors) games that do not “as a whole lack serious literary, artistic, political, or scientific value for minors.” Again, we can see the burden that the word “serious” imposes. All games have artistic value, but whether that value is “serious” could be debatable in some cases depending on what any legislature’s definition of “serious” is. Also, as above, video games are without question “recreational”, and the vast majority of recreational speech is protected under the First Amendment by default. Even if a game does not have serious artistic value, it would still be entitled to First Amendment protection if it is not obscene (or if depictions of graphic violence are not an unprotected category of speech, following our assumptions above). However, the safe harbor would not protect such games from restriction and therefore would not be sufficient to preserve the statute’s validity.

3. Conclusion and an observation

In case you skimmed or skipped the wall of text (understandable), in sum, the statute at issue in EMA v. Schwarzenegger is analogous to the one in US v. Stevens and will probably be stricken down because the Court is loathe to create new categories of unprotected speech except in very extreme circumstances, and that the statute restricts speech that is protected, even if it also regulates speech that is unprotected.

I mentioned Strict Scrutiny way back up there in the second paragraph of section (chapter?) 1. It is interesting to note that the 3^rd Circuit below upheld the striking down of the statute in US v. Stevens because it did not pass Strict Scrutiny—it found that the interest in preventing cruelty to animals was not compelling, that the statute was not narrowly tailored to serve that interest, and that it did not use the least restrictive means of doing so. Although the Supreme Court opinion struck the law down on the basis of overbreadth, the only time that overbreadth is mentioned in the 3^rd Circuit opinion is in a footnote in which it notes that the law only “might” be overbroad. What I find most fascinating is that, aside from a summary of procedural history, there was no mention of Strict Scrutiny in the entire majority opinion. But all’s well that ends well, I suppose.

The Court might choose to address Strict Scrutiny in EMA v. Schwarzenegger and maybe even overbreadth and vagueness. Not to mention the variable obscenity issue that would apply if the Court found that graphic violence is an unprotected category of speech. Time will tell.

A Closer Look at the Parallels Between US v. Stevens and EMA v. Schwarzenegger is a post from: gameslaw.net

Now, to be fair, the hordes of fanbois on internet forums that rage about their First Amendment rights being violated when their posts are deleted (or they get banned) probably didn’t even know about the company town exception to the state action requirement of the First Amendment. Just the same though, this predictable decision puts a fairly solid nail in their coffin.

Eric Goldman has an interesting opinion on the decision:

Nevertheless, this case could have significant import for academic discourse about the virtual worlds. I believe this is the first ruling to squarely conclude that an online game/virtual world isn’t a company town. As a result, this opinion emphatically rejects a meme that has become pretty popular among virtual world exceptionalists. Some exceptionalists have favored the company town analogy because it enable virtual world customers to reduce an operator’s ability to run its business capriciously.

At the same time, as I explain in my 2005 article, importing constitutional doctrines into paying vendor-customer relationships could have untold detrimental effects on the entire online industry. This efficient ruling will hardly be the last word in that debate, but it should take a little wind out of the sails of the virtual-world-as-company-town meme that gets invoked so frequently in virtual world exceptionalist circles.

Playstation Network: Not a Company Town is a post from: gameslaw.net

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.

California appeals VSDA v. Schwarzenegger to SCOTUS is a post from: gameslaw.net

Congress has a legitimate interest in complying with the terms of the Berne Convention. The Berne Convention, however, affords each member nation discretion to restore the copyrights of foreign authors in a manner consistent with that member nation’s own body of copyright law. In the United States, that body of law includes the bedrock principle that works in the public domain remain in the public domain. Removing works from the public domain violated

Plaintiffs’ vested First Amendment interests. In light of the discretion afforded it by the Berne Convention, Congress could have complied with the Convention without interfering with Plaintiffs’ protected speech. Accordingly–to the extent Section 514 suppresses the right of reliance parties to use works they exploited while the works were in the public domain–Section 514 is substantially broader than necessary to achieve the Government’s interest.

On the basis of the record before the Court, I conclude no evidence exists showing whether the Government’s two additional justifications for implementing Section 514–Section 514 helps protect the copyright interests of United States authors abroad; and Section 514 corrects for historic inequities wrought on foreign authors who lost their United States copyrights through no fault of their own–constitute important Government interests, or whether Section 514 is narrowly tailored to meet those interests.

By the way, if the case sounds familiar but something about the name seems off, you may remember this particular case from Golan v. Ashcroft and Golan v. Gonzales, dating back to 2001. It’s the same case, on remand. The full decision can be read at the above link in text format. For the official PDF (courtesy of Stanford University’s Cyberlaw site), check here.

The case is sure to get some major law review coverage, because it raises all sorts of amazing conflicts-of-law issues between the Constitution and international treaty, and it opens up a new line of attack on copyright power beyond what the Supreme Court has defined in Eldred v. Ashcroft.

So why is this important to gamers? Most games are nowhere close to the terms of their copyright protection running out. Where this becomes important to gamers is the stories involved. For example, J.R.R. Tolkien works were covered in this series of cases, as were those by H.G. Wells.

Lawrence Lessig, getting some justice after losing on Eldred, had this to say:

I am very happy and very very proud to report a big victory in Golan v. Holder. As you may recall, Golan was filed at the time Eldred v. Ashcroft was in the Supreme Court. The case challenged the URAA, which restored the copyright to works in the public domain. We lost in the district court, but then the CA10 reversed that decision, holding (for the first time ever) that the First Amendment restrained Congress when it changed the “traditional contours of copyright” beyond those explicitly mentioned in Eldred (idea/expression dichotomy and fair use). The CA10 sent the case back down to the district court, and Friday, Judge Babcock granted our motion for summary judgment, holding that the URAA violated the First Amendment to the extent it restored copyright against parties who had relied on works in the public domain.

We’ll keep this covered for the inevitable appeal, as it is highly likely that the U.S. government will appeal this up to SCOTUS if necessary.

Colorado District Court: Copyright Act Violates First Amendment (Golan v. Holder) is a post from: gameslaw.net