What’s taking so long in the violent video-game case?

Wednesday, June 22, 2011

We’re still waiting.

First Amendment observers await with bated breath a U.S. Supreme Court ruling in the violent video-game case, Brown (formerly Schwarzenegger) v. Entertainment Merchants Association. Amy Howe of SCOTUSblog has called the long wait the “Violent Video Game Vigil.”

The parties argued the case before the Court on Nov. 2. It’s the oldest case left on the Court’s docket in terms of oral-argument date. In fact, it’s the only case remaining from this October 2010 term that was argued in 2010.

The case involves a California law that imposes restrictions and a labeling requirement on the sale or rental of “violent video games” to minors. The stakes are high. As I wrote in a previous commentary, the Court could explain whether the concept of obscenity can be extended from sex to violence.

What’s taking so long? It’s impossible to know for sure, but there are some theories.

Erwin Chemerinsky, dean of University of California-Irvine Law School and a First Amendment advocate who has argued before the Court, offered a few possibilities in an e-mail to the First Amendment Center Online:

“It may be apparent when the decision comes down (i.e., extraordinary length, a proliferation of many different opinions, a groundbreaking approach to the First Amendment issue),” he wrote.

Robert Corn-Revere, another First Amendment expert who has argued free-speech cases before the Court, said: “Controversial cases often are released at the very end of the Court’s term. This happens for various reasons. It may signal a fractured decision with multiple opinions, there may be negotiations about proposed changes in a draft majority opinion that could result in a Justice deciding to write a separate opinion, or, in rare cases, a change in the vote.”

Robert O’Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, had this to say:

“If (as some of us surmise) Snyder [the funeral-protest case of Snyder v. Phelps] was meant as a signal on one side of core First Amendment jurisprudence, perhaps [Brown] will drop the other shoe, and will recognize or create a long-feared exception for “violence” parallel to cross-burning under Black [the cross-burning case of Virginia v. Black].

“The other theory is that the Court is essentially split three ways and thus can’t come to a majority view on this issue – which in some ways would be merciful,” O’Neil said.

We may know the answer as soon as tomorrow, as the Court is scheduled to release more opinions.

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