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

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

Pending Supreme Court Case US v. Stevens Has Implications for the Game Industry 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

The video is split into 4 parts, the first of which can be found here. Note that the 2nd part is mislabeled “part 1″ as well, but differs in that it has Tom Buscaglia in the first frame (the actual part 1 has myself and Ross Dannenberg in the first frame). Parts 3 and 4 are labeled as normal.

Link: Part 1

GamesLaw Video Footage: Legal Issues in Contemporary Games is a post from: gameslaw.net

FOR IMMEDIATE RELEASE

February 20, 2009

CONTACTS:             Dan Hewitt, 202.223.2400, dhewitt@theESA.com
Sean Bersell, 818.728,8663, sbersell@entmerch.org

Video Game Publishers and Retailers Respond to Court Ruling Overturning California Video Game Restriction Law

U.S. Ninth Circuit Sides with Groups in Challenge to 2005 Law

ENCINO, CA and WASHINGTON, DC – February 20, 2009 – Following are statements of Bo Andersen, President and CEO of the Entertainment Merchants Association (EMA) and Michael D. Gallagher, President and CEO of the Entertainment Software Association (ESA), in response to today’s ruling by the U.S. Court of Appeals in the case of Video Software Dealers Association v. Schwarzenegger (#07-16620), which held a 2005 video game restriction law enacted by the state of California to be an unconstitutional violation of the First Amendment’s guarantee of freedom of speech.

Statement of Bo Andersen: “We are extremely gratified by the court’s rejection of video game censorship by the state of California. The ruling vindicates what we have said since the bill that became this law was introduced: ratings education, retailer ratings enforcement, and control of game play by parents are the appropriate responses to concerns about video game content.

“Retailers are committed to assisting parents in assuring that children do not purchase games that are not appropriate for their age. Independent surveys show that retailers are doing a very good job in this area, with an 80% enforcement rate, and retailers will continue to work to increase enforcement rates even further. The court has correctly noted that the state cannot simply dismiss these efforts.

“I understand that some government officials will push for the state to ask the U.S. Supreme Court to review this decision. The state should not acquiesce in this demand, particularly in light of its budget difficulties. The state has already wasted too many tax dollars, at least $283,000 at last count, on this ill-advised, and ultimately doomed, attempt at state-sponsored nannyism.”

Statement of Michael D. Gallagher: “This is a win for California’s citizens. This is a clear signal that in California and across the country, the reckless pursuit of anti-video game legislation like this is an exercise in wasting taxpayer money, government time, and state resources. In the end, common sense prevailed with the court determining that, after exhaustive review, video games do not cause psychological or neurological harm to minors. And, that the ESRB rating system, educational campaigns and parental controls are the best tools for parents to help control what their children play.”

Background:

In 2005, the state of California enacted a law to restrict the sale or rental to anyone under the age of 18 of computer and video games that are classified as “violent video games” if the depictions of violence in the games are offensive to the community or if the violence depicted is committed in an “especially heinous, cruel, or depraved” manner. The law was scheduled to go into effect on January 1, 2006.

Prior to the law taking effect, the Video Software Dealers Association (now the Entertainment Merchants Association) and the Entertainment Software Association filed suit against California Governor Arnold Schwarzenegger and others to prevent its enforcement. The plaintiffs asserted that the law’s restriction on the sale or rental of certain violent video games violates their rights under the First and Fourteenth Amendments to the U.S. Constitution to freedom of expression and equal protection of the laws and is unconstitutionally vague.

In August 2007, a federal district court judge granted summary judgment in favor of the plaintiffs and permanently barred enforcement of California’s video game law. In doing so, the judge ruled that video games are protected by the First Amendment, the law is unduly restrictive and uses overly broad definitions, and the state failed to show that the limitations on violent video games would actually protect children.

The state of California appealed the summary judgment ruling to the U.S. Court of Appeals for the Ninth Circuit. The three-judge panel of the Ninth Circuit heard oral arguments on the appeal on October 29, 2008 at a special sitting at McGeorge School of Law in Sacramento, CA.

Additional information and links to case documents are at:
http://www.entmerch.org/schwarzenneger.html

The Entertainment Merchants Association is the not-for-profit international trade association dedicated to advancing the interests of the $33 billion home entertainment industry. EMA represents approximately 600 companies throughout the United States, Canada, and other nations. Its members operate approximately 20,000 retail outlets in the U.S. that sell and/or rent DVDs and computer and console video games and digitally distributed versions of these products. Membership comprises the full spectrum of retailers (from single-store specialists to multi-line mass merchants, and both brick and mortar and online stores), distributors, the home video divisions of major and independent motion picture studios, and other related businesses that constitute and support the home entertainment industry. EMA was established in April 2006 through the merger of the Video Software Dealers Association (VSDA) and the Interactive Entertainment Merchants Association (IEMA).

The Entertainment Software Association is the U.S. association dedicated to serving the business and public affairs needs of companies publishing interactive games for video game consoles, handheld devices, personal computers and the Internet. The ESA offers services to interactive entertainment software publishers including a global anti-piracy program, owning the E3 Media & Business Summit, business and consumer research, federal and state government relations, First Amendment and intellectual property protection efforts. For more information, please visit www.theESA.com.

###

Press Release on VSDA v. Schwarzenegger is a post from: gameslaw.net

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.

As Predicted, Ninth Circuit Court Of Appeals Upholds Permanent Injunction Of CA Sales Law is a post from: gameslaw.net

Having listened to it a few times, I have concluded that other than the judges’ wonderful discourse, there isn’t much new material for me to go over in an academic sense. I’ve already covered much of the legal analysis that the attorneys brought up in the recording, but I’m happy to answer any questions you may have about the cases, constitutional law concepts, background, or anything else. Please comment if you have questions or…well, comments.

Oh, and here’s my Law Practice Tip of the Day. When in doubt, use the slippery slope argument.

GamePolitics Posts Recording of VSDA v. Schwarzenegger Oral Arguments is a post from: gameslaw.net

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.

VSDA v. Schwarzenegger Likely To Go All The Way Up is a post from: gameslaw.net

This is the third installment of my series on California’s statute which bars the sale of violent video games to minors. In Parts 1 and 2, I gave background information on the substance and procedure that led Justice Whyte of the US District Court for the Norther District of California, San Jose Division to strike it down.  As you may know, the federal Court of Appeals for the Ninth Circuit will hear the state’s appeal of the permanent injunction of the law in question this Wednesday. Therefore, I will be offering my prediction of the outcome based on judicial precedent.

Part 1
Part 2

When a Court of Appeals must decide whether a statute is constitutional, and they do not have an example to follow from their own case law, they will look to the other federal courts for guidance. However, the Ninth Circuit encompasses the District Courts of California and Washington, and both of those jurisdictions have failed video game sales restrictions. Washington’s statute forbade the sale to a minor of any video game that contained images of violence against law enforcement personnel, and was struck down due to a lack of evidence that those images cause minors to become more violent.  Although this precedent is promising and will be persuasive on the court, the Justices will also look to the other Circuits and their underlying District Courts to see how they decided similar cases, and to determine whether or not they agree.

Comparison to the Failed Louisiana Statute
By way of example, the statute at issue here is particularly analogous to Louisiana’s game sales restriction law that was similarly barred from enforcement. Both laws forbid the dissemination of violent video games that are harmful to minors, and both contain nearly identical definitions of what makes a game so. Under both statutes, a video game containing explicit violence shall not be disseminated to a minor without parental consent if the game, considered as a whole:

-Appeals to the “morbid interest” of minors, which the LA statute goes on to describe as an interest in asocial, agressive behavior,
-Is patently offensive to contemporary local community standards (of adults) as to what is suitable for minors, and
-Lacks serious literary, artistic, political, educational, or scientific value for minors.

The US District Court for the Middle District of Louisiana issued a preliminary injunction barring enforcement of that statute for essentially the same reasons Justice Whyte enjoined the California statute. Similar laws in other states have also been struck down, see below. But suffice it to say there is much precedent for the Ninth Circuit to observe which would persuade it to find the CA law unconstitutional.

Conclusion
To put it plainly, Schwarzenegger’s law restricting the sale of violent video games to minors will most likely fail. Even though a few states have laws regulating video game sales that have passed constitutional muster, those valid laws are very narrowly drawn. Laws requiring in-store displays of rating information or forbidding the sale of pornographic video games to minors are a far cry from those that groundlessly restrict the sale of violent video games based on unsubstantiated allegations of psychological harm. So, I’m cautiously optimistic that the Ninth Circuit’s judgement will herald the “End Of Days” for California Civil Code section 1746-1746.5.

Brief Listing of Some Other Failed Laws
-An Indianapolis ordinance requiring parental presence in order to play violent arcade games was struck down because violent video games cannot be categorized as obscenity.
-A St. Louis County ordinance prohibiting the sale of violent video games to minors was unconstitutional because there was no substantial evidence demonstrated a link between video game violence and aggressive thoughts and behavior.
-A Minnesota state statute prohibited anyone under age 17 to rent or sell an AO- or M-rated game to anyone under 18 was struck down because there was no evidence that such a regulation would serve the state’s interest in protecting minors’ health.
-A Michigan statute prohibitting the sale of “ultra-violent explicit video games” to minors was unconstitutional because the state failed to prove the causal link between video game violence and aggression. The court also noted that such a regulation would have a chilling effect on the free expression of the game industry because they would feel compelled to create games that fell outside of the statutory definition of “ultra-violent”.
-The Illinois state law criminalizing the sale or rental of violent video games to minors was struck down based on a similar lack of evidence.

Personal Notes
Of course my main objection to the statute is the restriction on the game industry’s freedom of expression. No matter how violent a game is, it will never lack artistic value. Even if a game has no political, scientific, literary, or educational material, the decision to omit such elements is necessarily an artistic choice. Because a game can never lack artistic value for adults, I fail to see how it can lack artistic value for minors. Even the most gratuitously violent games involve visual design, musical composition, animation, etc. It would be very interesting to see a court address the question of how artistic value can be different for an 18-year-old than for a 16-year-old, but I would more than likely still stand by my convictions.
Massachusetts House Bill 1423 was argued before the legislature earlier this year, and looks almost exactly like California’s law except for some language relating to sexual content that the drafters inserted in a sly attempt to have video games regulated under obscenity laws. So far there is no word on whether it will pass. I have a feeling that it will (this is Massachusetts after all), but I’m also optimistic that those who have the game industry’s best interests at heart and the resources to intercede will do so. As a Boston resident and lifelong gamer, I look forward to keeping you all posted on any developments.

Schwarzenegger says “I’LL BE BACK…in court to appeal the injunction on my video game sales law”. Part 3 is a post from: gameslaw.net

This is (the long-delayed) Part 2 of my analysis and prediction of the outcome of Schwarzenegger’s appeal to get his video game sales restriction law reinstated. Here, I will give more background information on the proceedings in which a California Federal District Court struck down the statute. My mission for this series of articles is to give readers an understanding of exactly how a court finds a speech-restricting law unconstitutional. As such, I will start with a brief tutorial on the relevant judicial process, followed by application to this specific case.

You can find Part 1 of my analysis here.

1. Constitutional Law Crash Course (you’re welcome)

A. Strict Scrutiny
Content-based regulations of speech are presumptively unconstitutional. See RAV v. City of St. Paul. A state may limit protected speech based on content only if the regulation is narrowly tailored (uses the least restrictive means) to further a compelling state interest, and if the state demonstrates that the regulation actually does so.

B. Imminent Lawless Action Test
The most common rationale for restricting sales of video games to minors is that violent games will cause them to commit violent acts. Whenever a state wants to regulate speech on these grounds, the regulation must pass the Supreme Court’s Imminent Lawless Action Test laid down in Brandenburg v. Ohio. To show that the speech should be unprotected, the state must prove that the speech in question was directed to incite imminent, lawless action, and that it is likely to result in such action.

3. Grounds For Permanent Injunction

A permanent injunction against enforcement of a law is granted when a plaintiff demonstrates success on the merits of their case, that irreperable injury will result if the injunction is not granted, that the threatened injury to the plaintiff outweighs the harm the injunction would cause the defendant, and that the injunction would not offend the public interest. Justice Whyte’s analysis of these factors was mostly identical to his assessment when he granted the preliminary injunction, except that a plaintiff must actually win based on their arguments to get a permanent injunction, rather than just show that they are likely to win.

Coming Up
I’ll make a comparison between this statute and another similar statute from another state that was struck down (only one due to time constraints), and give my prediction regarding Schwarzenegger’s present appeal.

Schwarzenegger says “I’LL BE BACK…in court to appeal the injunction on my video game sales law”. Part 2 is a post from: gameslaw.net