Court seems eager to tackle violent video games

Tuesday, April 27, 2010

WASHINGTON — When the Supreme Court agrees to hear a new case, it almost always does so to resolve a dispute among lower courts over the issue at stake.

But there must have been another reason behind the Court’s decision yesterday to take up Schwarzenegger v. Entertainment Merchants Association, a dispute over California’s 2005 law banning the sale of violent video games to minors.

Why? Because, as even the state of California acknowledged in its petition to the Court, there was no disagreement among the nine lower courts that have looked at similar laws in the past. Each law, California acknowledged, had “suffered the same fate”; all, including California’s, have been struck down. But still, the state said, the justices should grant review, to extend the Supreme Court’s 40-year-old doctrine governing the sale of sexual material to minors to the sale of violent video games, as a way to “help states meet a new, modern threat to children.”

The Supreme Court went along with California’s plea, in effect adding the improbable category of “too much circuit court agreement” to the traditional criterion of “circuit conflict” as a reason for reviewing a case.

And that is not the only sign that at least some of the justices appear eager, despite usual rules, to resolve the issue through a full-blown examination of violent video games and the First Amendment.

The California petition was filed with the Court last May 19, and was first scheduled for consideration by the Court at a private conference last September. The Court usually disposes of a case soon after it comes up for conference, but instead the California case was held until yesterday — less than a week after the Supreme Court’s decision in United States v. Stevens, striking down the federal law criminalizing sale or possession of certain depictions of animal cruelty.

That timing suggests that the justices originally thought the Stevens decision would contain language that would also resolve the violent-video-game case. The Court often holds related cases for that reason. Then, once the other decision is issued, it sends the held case back to lower courts for further consideration under the new ruling.

But that did not occur in this instance, possibly because some of the justices felt that the animal-cruelty law was a more clear-cut violation of the First Amendment, while the video-game issue could be handled, as California hoped, by extending existing First Amendment doctrine to allow the California law to stand.

All these procedural clues, however, don’t mean the outcome of the case is a certainty.

Represented by Paul Smith of Jenner & Block, a veteran Supreme Court advocate, the video-game industry will fight back. And judging from a statement issued yesterday by Michael Gallagher, president of the Entertainment Software Association, the industry’s chief weapon may be last week’s 8-1 decision in Stevens. Gallagher’s statement:

“Courts throughout the country have ruled consistently that content-based regulation of computer and video games is unconstitutional. Research shows that the public agrees, video games should be provided the same protections as books, movies and music.

“As the Court recognized last week in the U.S. v. Stevens case, the First Amendment protects all speech other than just a few ‘historic and traditional categories’ that are ‘well-defined and narrowly limited.’ We are hopeful that the Court will reject California’s invitation to break from these settled principles by treating depictions of violence, especially those in creative works, as unprotected by the First Amendment.”

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