First Amendment Carve-Out for Violent Video Games?

Posted in Clairvoyance by Mike Sacks on April 26, 2010

The Supreme Court today granted certiorari in Schwarzenegger v. Video Software Dealers Association, which asks whether a California regulation banning the sale to minors of violent video games must meet “strict scrutiny” to pass constitutional muster, if such a regulation is permitted at all under the First Amendment.  The Court has been sitting on this petition since its first conference of the term back in September.

The Ninth Circuit struck down California’s law in February 2009:

Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled
speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion.

California justified its law with an appeal to the Court’s obscenity jurisprudence, but the Ninth Circuit slapped this reasoning down, pointing out that the Seventh, Eighth, Second, and Sixth Circuits have all refused to expand obscenity beyond sexual expression into violent expression.

The Supreme Court has never spoken on this issue, but came close last week in U.S. v. Stevens, when it struck down a federal statute banning depictions of animal cruelty by trying to sweep such depictions inside the Court’s obscenity carve-out under the First Amendment.

But Stevens did not concern the sale of violent content to minors.  Nevertheless, the Court has also been quite stingy in recent years on restrictions on indecent or obscene speech for minors, twice striking down federal regulations aimed at protecting children from such content on the Internet.

Despite what the New York Times might have said about the Ninth Circuit and its reputation for getting reversed by the Supreme Court, expect the Court to affirm its decision in Schwarzenegger v. Video Software Dealers Association next term.

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