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June 28, 2011, Alert No. 2,250.
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Supreme Court Holds First Amendment Protects Video Games

6/27. The Supreme Court issued its opinion in Brown v. EMA & ESA, a case regarding whether states can mandate that sellers label violent video games without violating the First Amendment free speech rights of game publishers. (This case was previously known as Schwartzenegger v. EMA.)

The Supreme Court held that video games are speech protected by the First Amendment. A state can only restrict video games content if the restriction satisfies the Supreme Court's stringent strict scrutiny test. It must be "justified by a compelling government interest and is narrowly drawn to serve that interest". The Court held that the California statute did not meet this test for many reasons, and hence, is unconstitutional. Moreover, under this opinion, it is unlikely that any content based state statute regulating the sale of video games would pass constitutional muster.

This is a huge victory for the video game industry. This case also demonstrates that the Supreme Court continues to apply old free expression principles to new information technology based platforms.

Nominally, this is a 7-2 outcome. Seven justices votes to affirm the judgment of the Court of Appeals, which enjoined the state statute. However, the holding of the Court is based on a fragile 5-4 split, with three of the older justices in that tenuous majority -- Scalia, Kennedy and Ginsburg. That is, five justices joined in the opinion that video games are protected free speech, strict scrutiny analysis applies, and that the California fails under the strict scrutiny standard.

However, two of the seven rejected this broad holding, and merely concurred in judgment on the very narrow grounds that California's statute is void for vagueness. That is, under this analysis, California and other states could draft a statute that regulates video game sales, and pass constitutional muster. In addition, the remaining two, Breyer and Thomas, would have upheld the California statute.

If one of the five member majority were to retire, the free speech landscape for video games, and/or other new information technologies, could change overnight.

Statute. In 2005, the California legislature enacted, and the governor signed, an act that regulates the sale of a "violent video game", which is defined as games that include "killing, maiming, dismembering, or sexually assaulting an image of a human being".

It prohibits certain sales to minors, and provides fines for sellers who violate the statute.

The act also imposes a labeling requirement on sellers -- a two inch by two inch black and white label on the front of the game's packaging. This act is codified at California Civil Code §§ 1746-1746.5.

Proceedings Below. The Video Software Dealers Association (VSDA), which is now the Entertainment Merchant Association (EMA), and the Entertainment Software Association (ESA) filed a complaint in the U.S. District Court (NDCal) against Arnold Schwarzenegger, in his capacity of Governor of California, and others, challenging the constitutionality of the act. Edmund Brown is now the Governor, and hence, the case now bears his name.

The District Court held the act unconstitutional. California appealed. The Court of Appeals affirmed. See, story titled "9th Circuit Holds California Video Games Statute Unconstitutional" in TLJ Daily E-Mail Alert No. 1,902, February 23, 2009.

It held that the act is a "presumptively invalid content-based restriction on speech", and that it subject to the "strict scrutiny" standard of review, rather than the "variable obscenity" standard articulated by the Supreme Court in its 1968 opinion in Ginsberg v. New York, 390 U.S. 629.

The Court of Appeals held 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."

It also held 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."

The Court of Appeals did not rule on other grounds for challenging the statute, including void for vagueness and equal protection.

Supreme Court. California petitioned the Supreme Court for writ of certiorari. The Supreme Court granted certiorari on April 26, 2010. See, story titled "Supreme Court Grants Cert in Video Game 1st Amendment Case" in TLJ Daily E-Mail Alert No. 2,081, April 30, 2010.

Justice Antonin Scalia wrote the opinion of the Court, affirming the judgment of the Court of Appeals, in which Justices Kennedy, Ginsburg, Sotomayor and Kagan joined. Justice Alito wrote an opinion concurring in judgment, in which Chief Justice Roberts joined. Justices Thomas and Breyer both wrote dissenting opinions.

Scalia's opinion, at PDF pages 3-20, begins with the statement that "video games qualify for First Amendment protection."

Moreover, "Like the protected books, plays, and movies that preceded them, video games communicate ideas -- and even social messages -- through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection." (Parentheses in original.)

Also, "whatever the challenges of applying the Constitution to ever-advancing technology, ``the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary´´ when a new and different medium for communications appears."

"Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny -- that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest."

The statute failed the test because it did not "show a direct causal link between violent video games and harm to minors".

It also failed because of underinclusiveness. The opinion notes that violence has long been a part of education and child raising, citing such works as the Grimm Brothers fairy tales, Disney's movies, great literary works from classical antiquity, Dante's Inferno, and Saturday morning television cartoons. California regulates none of these.

The opinion states that "The consequence is that its regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it. Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint. ... Here, California has singled out the purveyors of video games for disfavored treatment -- at least when compared to booksellers, cartoonists, and movie producers -- and has given no persuasive reason why."

The opinion also concludes that the statute is underinclusive because it allows children to play violent video games with a parent's approval. "The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the handsof children so long as one parent (or even an aunt or uncle) says it’s OK. And there are not even any requirements as to how this parental or avuncular relationship is to be verified; apparently the child’s or putative parent’s, aunt’s, or uncle’s say-so suffices. That is not how one addresses a serious social problem." (Parentheses in original.)

The opinion also addresses industry ratings systems. "The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games. ... This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned-parents’ control can hardly be a compelling state interest."

In conclusion, the opinion states that "California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive. ... As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal isnot cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny."

Alito's and Roberts' Concurrence. Alito's opinion, which Roberts joined, is at pages 21-37. It concurs in judgment.

First, he cautioned about applying old First Amendment principles to new technologies. "In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar."

Second, he rejected the majority's analysis, and concluded that the California statute must be enjoined on the narrow grounds that it is "impermissibly vague".

Breyer's Dissent. Breyer's dissenting opinion, at pages 58-92, applies the Supreme Court's traditional analysis, but concludes, unlike the majority, the the California statute meets the strict scrutiny test. No other justices joined in this opinion, or reached the same conclusion.

Breyer wrote that the California statute "imposes a restriction on speech that is modest at most. That restriction is justified by a compelling interest (supplementing parents’ efforts to prevent their children from purchasing potentially harmful violent, interactive material). And there is no equally effective, less restrictive alternative. California’s statute is consequently constitutional on its face -- though litigants remain free to challenge the statute as applied in particular instances, including any effort by the State to apply it to minors aged 17." (Parentheses in original.)

He added that "playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show"

Thomas' Dissent. Thomas' opinion, at pages 38-57, confusedly mixes several elements, including constitutional originalism, the wisdom of Jean Jacques Rousseau, and good parenting.

Thomas argues that the Court should implement "the original public understanding of the First Amendment" as it applied to state regulation of parenting and education. That is, the Court should follow the "practices and beliefs of the founding generation", or the "most likely public understanding ... at the time it was adopted."

He concludes that this original understanding "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians". (Parentheses in original.)

Thomas asserts that the original understanding was the the First Amendment did not protect "speech to minor children bypassing their parents". Also, "The founding generation would not have considered it an abridgment of ``the freedom of speech´´ to support parental authority by restricting speech that bypasses minors’ parents."

There are other members of the Court who advocate original understanding as the best theory of constitutional interpretation. However, only Thomas mentioned original understanding in his opinion. There may be reasons for this. First, the original understanding of the First Amendment was that it restricted the federal government, but not state governments. That is why it begins, "Congress shall make no law ..." Application of the First Amendment to the states is based upon the 14th Amendment, a post Civil War addition to the Constitution. Moreover, it was not until the Supreme Court's development of the incorporation doctrine in the 20th Century that provisions of the Bill of Rights were extended to the states.

Second, the statute in question relates to parenting and education. The original understanding of the Constitution was that it gave only enumerated powers to the Congress. The Constitution enumerated no federal powers related to parenting or education. Hence, for the purposes of this case, there was no relevant original understanding.

Next, Thomas sites works on the extent of parental control over the raising of their children in 17th Century America. He concludes that back then parents "exercised significant authority over their children, including control over the books that children read. And laws at the time continued to reflect strong support for parental authority and the sense that children were not fit to govern themselves."

"Based on these views of childhood, the founding generation understood parents to have a right and duty to govern their children's growth." But then Thomas makes a jump. He asserts that the California statute is inconsistent with this understanding.

Yet, the California statute regulates only retail sellers of video games. It provides that a "person may not sell or rent a video game that has been labeled as a violent video game to a minor". It regulates sellers, and provides for fines of sellers. The plaintiffs are sellers. The statute does not regulate parents. The majority opinion of the Supreme Court does not regulate parents; it limits state authority to regulate sellers. Nevertheless, Thomas has offered an analysis that would apply to a statute restricting parents' authority to stop their children from using certain video games, or a court opinion that restricts parental authority.

But, that is not the end of Thomas' analysis. He then proceeds with the argument that "The works of John Locke and Jean-Jacques Rousseau were a driving force behind the changed understanding of children and childhood." He outlines the theory of child rearing and education advanced by Rousseau in his book [Amazon] titled Emile. "Locke's and Rousseau's writings fostered a new conception of childhood" in colonial America.

The method by which judges and lawyers ordinarily argue that a particular work or writer influenced the original understanding is to cite references to that work or writer in legislative debates, judicial opinions, published treatises, and other records from the relevant time period. However, Thomas cites no 18th Century American references to Emile, or indeed, to any work of Rousseau.

One reason that judges have not heretofore relied upon Rousseau as an exemplar -- then or now -- on parenting and education, is that he wrote another book titled Confessions in which he addressed his own parenting practices. He bragged that he fathered five children out of wedlock, and abandoned all to the barbaric orphanages of 18th Century France.

Rousseau wrote that "My third child was accordingly taken to the Foundling Hospital, like the other two. The two next were disposed of in the same manner, for I had five altogether. This arrangement appeared to me so admirable, so rational, and so legitimate, that, if I did not openly boast of it, this was solely out of regard for the mother". Rousseau also asserted that "I thought that I was behaving like a citizen and a father, and considered myself a member of Plato's Republic." (Both quotations are from page 89 of Edmond Hedouin's 1896 translation of Confessions, which is available in Google Books.)

The British philosopher, Bertrand Russell, wrote in his 1946 book [Amazon] titled A History of Western Philosophy that in about 1745 Rousseau "took up with Therese le Vasseur, who was a servant at his hotel in Paris. He lived with her for the rest of his life (not to the exclusion of other affairs); he had five children by her, all of whom he took to the Foundling Hospital." (Parentheses in original. See, Book Three, Chapter XIX, titled "Rousseau".)

Reaction. Representatives of the video game industry, and technology related groups, praised the majority opinion.

Michael GallagherMichael Gallagher (at left), head of the ESA, the victor in this case, stated in a release that "This is a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere. Today, the Supreme Court affirmed what we have always known -- that free speech protections apply every bit as much to video games as they do to other forms of creative expression like books, movies and music".

Gallagher added that "The Court declared forcefully that content-based restrictions on games are unconstitutional; and that parents, not government bureaucrats, have the right to decide what is appropriate for their children."

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "We are encouraged that the Supreme Court declined to endorse government regulation of speech in the form on interactive computer games. Every new form of expression, including motion pictures, comic books, television and the Internet, has been threatened by the eager hand of the censor. Instead of succumbing to the techno-panic du jour, the Court reaffirmed more than 200 years of First Amendment principles, reminding us that neither the states nor the federal government have the 'freedom to disregard these traditional limitations' on the regulation of speech."

John Morris, General Counsel of the Center for Democracy and Technology (CDT), stated in a release that "We are very pleased that the Supreme Court has embraced the idea that voluntary ratings systems are one of the best ways to assist parents in determining what kinds of content their children can view".

Morris added that "The video game industry continues to develop user empowerment tools that will help parents achieve this goal in a much more effective -- and constitutional -- way than the California law."

Berin Szoka, head of the TechFreedom, stated in a release that "The Supreme Court has affirmed that the First Amendment applies equally to all media, including videogames and other interactive media. This ensures that free speech will continue to be protected even as technology evolves in ways scarcely imaginable today."

The ACLU's Steven Shapiro stated in a release that "This is a Court that takes an expansive view of the First Amendment. It is particularly sensitive to any claim that the government is using its power to censor unpopular speakers or unpopular speech".

This case is Edmund Brown, et al. v. Entertainment Merchants Association, et al., Supreme Court of the U.S., Sup. Ct. No. 08-1448, on petition for writ certiorari to the U.S. Court of Appeals for the 9th Circuit. The Court of Appeals, App. Ct. No. 07-16620, heard an appeal from the U.S. District Court for the Northern District of California, D.C. No. CV-05-04188-RMW.

In This Issue
This issue contains the following items:
 • Supreme Court Holds First Amendment Protects Video Games
Washington Tech Calendar
New items are highlighted in red.
Monday, June 27

The House will be in recess the week of Monday, June 27 through Friday, July 1.

The Senate will meet at 2:00 PM.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [52 pages in PDF] regarding retransmission consent negotiations. The FCC adopted and released this NPRM on March 3, 2011. It is FCC 11-31 in MB Docket No. 10-71. See, notice in the Federal Register, March 28, 2011, Vol. 76, No. 59, at Pages 17071-17088.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [17 pages in PDF] regarding Terrestrial Trunked Radio, or TETRA, technology. The FCC adopted this item on April 18, 2011, and released the text on April 26, 2011. It is FCC 11-63 in WT Docket No. 11-69 and ET Docket No. 09-234. See, notice in the Federal Register, Vol. 76, No. 91, Wednesday, May 11, 2011, at Pages 27296-27300.

Tuesday, June 28

The Senate will meet at 10:00 AM.

9:00 AM - 12:00 NOON. The Department of State's (DOS) Advisory Committee on International Communications and Information Policy (ACICIP) will meet. This meeting will address "upcoming international telecommunications meetings and conferences, ...bilateral and multilateral meetings that have taken place recently", and "ICT aspects of international disaster response". Phil Verveer (DOS, Coordinator for International Communications and Information Policy) and Thomas Wheeler (Core Capital Partners) will preside. See, notice in the Federal Register, Vol. 76, No. 96, Wednesday, May 18, 2011, at Pages 28843-28844. The deadline to request permission to attend is 5:00 PM on June 24. Location: DOS, Loy Henderson Auditorium, Truman Building, 2201 C St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding amending its aviation service regulations regarding audio visual warning systems (AVWS). This FCC adopted this item on February 22, 2011, and released the text on March 4, 2011. It is FCC 11-25 in WT Docket No. 10-61. See, notice in the Federal Register, March 30, 2011, Vol. 76, No. 61, at Pages 17613-17615.

Wednesday, June 29

The Senate will meet at 9:30 AM. It will resume consideration of S 679 [LOC | WW], the "Presidential Appointment Efficiency and Streamlining Act of 2011".

9:00 - 11:30 AM. The Heritage Foundation (HF) will host an event titled "The China Challenge: Mixing Economics and Security". The speakers will include Sen. Jon Cornyn (R-TX). See, notice. Location: HF, 214 Massachusetts Ave., NE.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Privacy and Data Security: Protecting Consumers in the Modern World". The witnesses will be Julie Brill (FTC Commissioner), Cameron Kerry (Department of Commerce), Austan Schlick (FCC General Counsel), Scott Taylor (HP), Stuart Pratt (Consumer Data Industry Association), Ioana Rusu (Consumers Union), Tim Schaaff (Sony Network Entertainment International), and Thomas Lenard (Technology Policy Institute). See, notice. Location: Room 253, Russell Building.

10:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Barriers to Justice and Accountability: How the Supreme Court’s Recent Rulings will Affect Corporate Behavior". See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

5:30 - 6:45 PM. The New America Foundation (NAF) will host a discussion of the promotional brochure [47 pages in PDF] titled "The Power of Open". It pertains to the Creative Commons license. The speakers will be Cathy Casserly (Creative Commons), Heather LaGarde, Rebecca MacKinnon (NAF), and Tom Glaisyer (NAF). See, notice. Location: NAF,  Suite 400, 1899 L St., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) following its June 1, 2011, hearing regarding its ex parte and inter partes reexamination proceedings. See, notice in the Federal Register, April 25, 2011, Vol. 76, No. 79, at Pages 22854-22861. See also, story titled "USPTO to Hold Hearing on Inter Partes Reexamination Proceedings" in TLJ Daily E-Mail Alert No. 2,226, April 26, 2011.

Thursday, June 30

There will be no weekly executive business meeting of the Senate Judiciary Committee (SJC).

12:00 NOON - 1:30 PM. The American Enterprise Institute (AEI) will host an event titled "The Pending Free Trade Agreements and Trade Adjustment Assistance". The keynote speaker will be Sen. Orrin Hatch (R-UT), ranking Republican on the Senate Finance Committee (SFC). The other speakers will be Sallie James (Cato), Howard Rosen (Peterson Institute for International Economics), and Claude Barfield (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Friday, July 1

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-57 Part 1 Revision 3 [143 pages in PDF] titled "Recommendation for Key Management: Part 1: General".

Monday, July 4

Independence Day.

This is a federal holiday. See, OPM list of 2011 federal holidays.

The House will not meet.

Tuesday, July 5

The House will not meet.

EXTENDED TO AUGUST 4. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [46 pages in PDF] regarding how its rules and policies could be modified to provide greater economic, market entry, communication adoption opportunities, and incentives for Native Nations. This notice is FCC 11-30 in CG Docket No. 11-41. The FCC adopted it on March 3, 2011, and released the text on March 4, 2011. See, notice in the Federal Register: April 5, 2011, Vol. 76, No. 65, at Pages 18759-18761. See also, extension notice (DA 11-873).

Wednesday, July 6

10:00 AM - 12:00 NOON. The Heritage Foundation (HF) will host an event titled "Supreme Court's 2010 - 2011 Term". The speakers will include Neal Katyal (Principal Deputy Solicitor General). See, notice. Location: HF, 214 Massachusetts Ave., NE

2:00 PM. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations will hold a hearing titled "Federal Government Spectrum Use". See, notice. Location: Room 2123, Rayburn Building.

Thursday, July 7

10:30 AM. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations will hold a hearing titled "The Views of the Independent Agencies on Regulatory Reform". See, notice. Location: Room 2322, Rayburn Building.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its 4th Further Notice of Proposed Rulemaking (NPRM) [16 pages in PDF] regarding out of band emission limits for mobile Broadband Radio Service (BRS) and Educational Broadband Service (EBS) devices operating in the 2496-2690 MHz band. This item is FCC 11-81 in WT Docket No. 03-66 and RM-11614. The FCC adopted this FNPRM on May 24, 2011, and released the text on May 27, 2011. See, notice in the Federal Register, Vol. 76, No. 109, Tuesday, June 7, 2011, at Pages 32901-32906.

Friday, July 8

10:00 AM. The House Homeland Security Committee's (HHSC) Subcommittee on Emergency Preparedness, Response and Communications will hold a hearing titled "Communicating With the Public During Emergencies: An Update on Federal Alert and Warning Efforts". See, notice. Location: Room 311, Cannon Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Inquiry (FNOI) requesting information to assist it in preparing its annual reports to the Congress on the status of competition in markets for the delivery of video programming. 47 U.S.C. § 548(g) mandates that these reports be prepared annually. However, the FCC does not comply with this statute. See, notice in the Federal Register, May 4, 2011, Vol. 76, No. 86, at Pages 25345-25352. This FNOI is FCC 11-65 in MB Docket No. 07-269.

Deadline to submit comments to the Federal Trade Commission (FTC) in connection with June 21 event titled "Patent Standards Workshop". See, notice in the Federal Register, Vol. 76, No. 93, Friday, May 13, 2011, at Pages 28036-28038, and FTC release of May 9, 2011. See also, story titled "FTC to Hold Workshop on Standard Setting and Patents" in TLJ Daily E-Mail Alert No. 2,242, May 16, 2011.

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