TLJ News from June 26-30, 2011

People and Appointments

6/30. The Senate had been scheduled to go on recess next week. Senate Republicans urged the Senate to stay in session and address the federal budget. Senate leaders agreed to meet in pro forma session on Friday, July 1, take off Monday, July 4 (Independence Day), and return for legislative business on Tuesday, July 5. Whether the Senate nominally stays in session and holds only pro forma sessions, as in did around Memorial Day, or remains in session for legislative business, a consequence of not recessing is that President Obama is again denied the opportunity to make recess appointments of executive branch officials and judges.

6/30. The Public Knowledge (PK) hired Clarissa Ramon as Outreach and Government Affairs Associate, and Martyn Griffenis as Government Affairs Associate. Ramon previously worked by Rep. Charles Gonzalez (D-TX) and for the Congressional Hispanic Caucus. She started on June 27, 2011. Griffenis previously worked for former Rep. Vic Snyder (D-AR). He will start on July 5, 2011.

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6/30. The Copyright Office published a notice in the Federal Register that announces that the CO "is extending for one year the interim rule relating to fees for special handling of registration claims that have been pending for at least six months. Currently, the interim rule is set to expire on July 1, 2011, and this extension will change the expiration date to July 1, 2012." See, Federal Register, Vol. 76, No. 126, Thursday, June 30, 2011, at Page 38306.

FRB Governor Addresses Mobile Communications and Banking

6/29. Federal Reserved Board Governor Sarah Raskin gave a speech in Washington DC titled "Economic and Financial Inclusion in 2011".

She discussed the use of new mobile communications technologies in financial services, the potential of new technologies for extending "financial inclusion" to those who have no bank accounts or who are "underbanked", and looming regulatory issues for mobile banking.

Sarah RaskinRaskin (at right) noted that "technology is absolutely central" to the lives of teenagers. She said that their "familiarity and comfort with online interaction, combined with their expectation of immediate, continuous, and universally accessible service, will likely inspire changes to traditional models of financial service delivery."

She said that "Traditional financial service providers that fail to keep pace with the latest technological innovations risk losing market share to innovators in this area. Signs that younger Americans are more tenuously attached to the traditional financial system are already apparent and it is important for policymakers to understand the implications of this trend for the financial futures of the next generation."

Raskin also stated that "the financial crisis has left many lower- and moderate-income Americans in danger. With fewer assets to rely upon and deteriorating credit, many people find it harder to enter, or stay in, the financial mainstream."

But, she added, "New technology, such as recent advancements in mobile financial services and the prepaid card industry, are spurring financial product and service innovation in the private sector. For example, mobile tools promoting ways to improve the financial capabilities of, and providing new products and services for, the underbanked are being developed."

"It may, in fact, turn out to be that the innovations in financial services outside the traditional banking system will best address the needs of lower-income Americans", said Raskin.

She then discussed the role of government regulation. She argued that "it is incumbent upon regulators to ensure that these products and services are safe, affordable, transparent, and easy to understand, regardless of the provider. In some cases, regulators may need to ban products that are inherently unfair or deceptive."

"In all cases, regulators must ensure that consumers are afforded meaningful protections with respect to any products that are offered in the financial marketplace. Finally, regulators must also actively monitor the consumer financial market to guard against developments that might threaten the stability of the overall economy."

She spoke of "regulators", without identifying which regulatory agencies would be involved in such regulation, or whether any new statutory authority should be extended to any agency.

Raskin spoke at an event hosted by the New America Foundation (NAF) titled "Rebuilding the Road to Financial Stability: Understanding and Addressing the Savings and Credit Needs of Lower-Income Americans". There is an archived video of her speech in the NAF web site.

OECD Releases Recommendations for Internet Laws, Policies and Practices

6/29. The Organisation for Economic Co-operation and Development (OECD) adopted and released a short statement [6 pages in PDF] titled "Communique on Principles for Internet Policy-Making" on June 29, 2011.

It is a wide ranging enumeration of recommended objectives for government policy makers and participants in the internet economy. See also, OECD release.

It recommends that policy makers preserve the "openness of the Internet", protect "privacy, security, children online, and intellectual property", reinforce "trust in the Internet", promote "ubiquitous access to and use of broadband Internet networks", provide government subsidies "in particular in rural and remote areas, attempt to increase demand for and usage of broadband networks, respect "human rights and the rule of law", and support the "free flow of information and knowledge, the freedom of expression, association and assembly, the protection of individual liberties".

The recommendations in most areas are sufficiently broad and qualified as not to incur opposition from OECD members nations, internet businesses, or other affected groups. Although, the intellectual property related recommendations are specific enough to have drawn criticism from some interest groups.

Free Speech. This document advocates "promoting the free flow of information". But then, the OECD members are only those nations that do allow for considerable free speech online -- European nations, plus the U.S., Japan, Korea, Canada, Australia and a few others.

Nations that engage in systematic internet censorship are not members of the OECD.

Privacy. It addresses privacy issues in broad and vague terms. "Privacy rules should be based on globally recognised principles, such as the OECD privacy guidelines, and governments should work to achieve global interoperability by extending mutual recognition of laws that achieve the same objectives."

Also, "Cross-border enforcement co-operation will further protect privacy and promote innovation. Privacy rules should also consider the fundamental rights of others in society including rights to freedom of speech, freedom of the press, and an open and transparent government."

Free Trade. It also addresses trade issues in non-specific language. "Suppliers should have the ability to supply services over the Internet on a cross-border and technologically neutral basis in a manner that promotes interoperability of services and technologies, where appropriate."

And, "other barriers to the location, access and use of cross-border data facilities and functions should be minimised, providing that appropriate data protection and security measures are implemented in a manner consistent with the relevant OECD Guidelines ..."

Cyber Security. This statement touches on cyber security. "Policies to address security threats and reduce vulnerabilities are important".

"Policies to enhance online security should not disrupt the framework conditions that enable the Internet to operate as a global open platform for innovation, economic growth, and social progress and should not be used as pretence for protectionism. Policies should also aim to enhance individual and collective efforts for self-protection and promote trust and confidence."

Surveillance. The OECD statement does not expressly address law enforcement or intelligence agency surveillance, searches, data retention mandates, or equipment and system design mandates.

However, the statement contains several vague references. For example, it alludes to "the need of governments to enforce applicable law", and the role played by "Internet intermediaries" in "deterring illegal activity".

In addition, "Sufficient government enforcement resources and industry co-operation should also be available to ensure that Internet-based activities comply with law".

Finally, it states that "co-operation on cross-border investigations and enforcement actions should be improved."

Leslie Harris, head of the Center for Democracy and Technology (CDT), another Washington DC based interest group, wrote in a short piece that governments "are seeking additional control over the design of networks to facilitate their surveillance". However, she did not object to any specific language in this OECD document.

Intellectual Property. This document provides more detail on intellectual property related laws and business practices. It begins with the statement that "Intellectual property protection is a fundamental tool for the advancement of innovation and creativity on the Internet."

"New and complementary approaches balanced to ensure effective protection of intellectual property should also be encouraged where necessary, and should also ensure protection of legitimate competition and fundamental principles such as freedom of expression, access to lawful content and Internet services and technologies, fair process, and privacy."

It continues that "Sound Internet policy should encompass norms of responsibility that enable private sector voluntary co-operation for the protection of intellectual property. Appropriate measures include lawful steps to address and deter infringement, and accord full respect to user and stakeholder rights and fair process. In keeping with the multi-stakeholder processes set out in this document, all parties have a role to play, including individuals, providers, intermediaries, and judicial authorities."

In a related discussion, this document advocates limitations on liability of internet intermediaries. It states that "Appropriate limitations of liability for Internet intermediaries have, and continue to play, a fundamental role, in particular with regard to third party content. Internet intermediaries, like other stakeholders, can and do play an important role by addressing and deterring illegal activity, fraud and misleading and unfair practices conducted over their networks and services as well as advancing economic growth. Limitations play an important role in promoting innovation and creativity, the free flow of information, and in providing the incentives for co-operation between stakeholders."

It continues that "Within this context governments may choose to convene stakeholders in a transparent, multi-stakeholder process to identify the appropriate circumstances under which Internet intermediaries could take steps to educate users, assist rights holders in enforcing their rights or reduce illegal content, while minimising burdens on intermediaries and ensuring legal certainty for them, respecting fair process, and more generally employing the principles identified in this document."

Rashmi Rangnath of the Public Knowledge (PK), a Washington DC based interest group, wrote a short piece published in the PK web site that criticizes the OECD statement, mainly for its "emphasis on protecting intellectual property", but also for its failure "to mention the importance of net neutrality or common carriage".

Rashmi Rangnath
Rashmi Rangnath
Copyright PK

Rangnath (at right) wrote that the OECD statement encourages "Internet Service Providers (ISPs) to act as private policemen of the Internet, allowing companies to make their own rules for filtering content outside of the safeguards of judicial process that governments would then enforce."

She argued that "allowing industry participants to make ``private law´´ enforced by governments without some sort of public accountability and due process is so contrary to the fundamental principles of democracy".

She also wrote that "encouraging government's involvement in industry processes introduces an element of coercion. ISPs may not be free to reject mechanisms such as blocking when governments are involved and encourage such mechanisms. Plus, private industry action would not be subject to safeguards that government action would be."

For example, "in the U.S., government actions can be challenged as violations of citizen’s due process or first amendment rights. However, if ISPs and rights holders were to develop mechanisms such as blocking content or cutting off user's Internet access, users are likely to find it harder to challenge these actions as violations of their fundamental rights."

The CDT's Harris wrote that this document "contains some troubling phrasing that could be interpreted in highly problematic ways".

For example, "In what appears to be an effort to address the legitimate concerns of the content industry, several of the principles include broad, ambiguous language about the responsibilities of Internet intermediaries generally, and access providers in particular. We fear that these provisions will be read by some as justifying various forms of government regulation and the imposition on intermediaries of liability for various kinds of content.  That interpretation of the principles would be dangerous to the open, decentralized, user-controlled Internet."

Ten Senate Democrats Write Regarding Effort to Defund FCC Enforcement of Its BIAS Rules

6/29. Sen. John Kerry (D-MA), and ten other Democratic Senators, sent a letter to Sen. Daniel Inouye (D-HI) and Sen. Thad Cochran (R-MS), the Chairman and ranking Republican on the Senate Appropriations Committee (SAC), objecting to language in the SAC's appropriations bill that provides funding for the Federal Communications Commission (FCC) for FY 2012 that would prevent the FCC from using any appropriated funds to enforce its rules for the regulation of broadband internet access service (BIAS) providers.

The ten Senators who signed the letter are Sen. Kerry, Sen. Jay Rockefeller (D-WV), Sen. Al Franken (D-MN), Sen. Maria Cantwell (D-WA), Sen. Tom Udall (D-NM), Sen. Richard Blumenthal (D-CT), Sen. Mark Udall (D-CO), and Sen. Ron Wyden (D-OR), Sen. Bernard Sanders (D-VT), and Sen. Mark Begich (D-AK).

They wrote that "We side with the agency of expertise and supporters of the rule and urge you to reject any proposals that will prevent the FCC from implementing or enforcing its net neutrality rules."

The FCC promulgated its BIAS rules in its huge Report and Order (R&O) [194 pages in PDF] of late December, 2011.

The FCC adopted the R&O on December 21, 2010, and released the text on December 23, 2010. It is FCC 10-201 in GN Docket No. 09-191 and WC Docket No. 07-52. See also, stories in TLJ Daily E-Mail Alert No. 2,186, December 22, 2010, and TLJ Daily E-Mail Alert No. 2,188, December 24, 2010.

On April 8, 2011, the House passed HJRes 37, a resolution disapproving the FCC's BIAS rules by a vote of 240-179. See, story titled "House Passes Resolution Disapproving the FCC's BIAS Rules" in TLJ Daily E-Mail Alert No. 2,220, April 11, 2011.

The Free Press's Joel Kelsey stated in a release that "We applaud these senators for standing up against this brazen attempt to hand over the keys of the open Internet to AT&T, Comcast and Verizon. This amendment is a poorly disguised play to hijack the budget process in order to prolong a political grudge against the FCC. We hope the Appropriations Committee heeds the advice of the senators on this letter and leaves this amendment where it belongs -- on the cutting room floor."

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6/29. The Department of Justice's (DOJ) Antitrust Division and state plaintiffs filed a certificate of compliance with the Tunney Act in the U.S. District Court (DC) in USA v. Comcast and NBCU. Back in January, the DOJ approved, with conditions, the merger of Comcast and NBCU. On January 18, 2011, the DOJ and several states filed, and simultaneously settled, a complaint in the District Court. See also, proposed final judgment.

Update on US Korea Free Trade Agreement

6/28. Sen. Max Baucus (D-MT), the Chairman of the Senate Finance Committee (SFC), issued a release on June 28, 2011, that states that the SFC "will hold a ``mock´´ markup of the draft implementing bills for the South Korea, Colombia, and Panama Free Trade Agreements (FTAs) that includes an extension of Trade Adjustment Assistance (TAA) this Thursday, June 30".

This release adds that the SFC "will consider the draft implementing bills during a ``mock´´ markup because Congress cannot offer amendments to the final implementing bills submitted by the Administration under the Trade Promotion Authority Act".

President Obama also issued a statement regarding the pending free trade agreements between the U.S. and Korea, Panama and Columbia. See, White House news office release.

Sen. Orrin Hatch (R-UT), the ranking Republican on the SFC stated in a release that "This highly-partisan decision to include TAA in the South Korean FTA implementing bill risks support for this critical job-creating trade pact in the name of a welfare program of questionable benefit at a time when our nation is broke."

Sen. Hatch continued that "This is a clear breach of Trade Promotion Authority and threatens the ability of American exporters and job creators who stand to benefit from the largest bilateral trade agreement in more than a decade. TAA should move through the Congress on its own merit and should stand up to rigorous Senate debate. President Obama should send up our pending trade agreements with Colombia, Panama, and Korea and allow for a clean vote."

On June 28, 2011, Sen. Robert Casey (D-PA) and Sen. Sherrod Brown (D-OH) introduced S 1286 [LOC | WW], another bill pertaining to TAA.

These FTAs also address intellectual property, telecommunications and e-commerce. See for example, text of the the US Korea FTA, and its sections regarding telecommunications [17 pages in PDF], electronic commerce [4 pages in PDF], and intellectual property rights [35 pages in PDF].

Steve Metalitz released a statement on behalf of the International Intellectual Property Alliance (IIPA) on June 29, 2011. "We commend the Finance Committee, under the leadership of Senator Baucus, for this significant milestone toward the ratification of the Korea, Colombia, and Panama Free Trade Agreements. These three historic Agreements are major steps forward for U.S. jobs and exports, including for the vital industry sectors that depend on copyright protection. The Agreements contain critical protections for copyright in the digital age"

He wrote that "We urge both the Senate and the House of Representatives to act swiftly in the weeks to come to bring these critical Agreements into force as soon as possible."

Greg Frazier, of the Motion Picture Association of America (MPAA), stated in a release that "We applaud Chairman Baucus for his leadership in moving ahead on the Korea, Colombia and Panama FTAs. These agreements include crucial safeguards against copyright theft that plagues the motion picture industry’s viability overseas and inflicts untold damage on our creative community and workers at home. They will also help open these markets to U.S. filmed entertainment and the jobs the increased exports create."

The US and Korea concluded their original FTA in 2007. See, story titled "US and Korea Announce FTA" in TLJ Daily E-Mail Alert No. 1,559, April 2, 2007. However, Congressional Democrats blocked approval. The US and Korea renegotiated this FTA late last year, making changes affecting automobiles and other matters. See, stories titled "US Korea Free Trade Agreement" in TLJ Daily E-Mail Alert No. 2,150, November 8, 2010; "US and Korea Fail to Reach Agreement on Free Trade" in TLJ Daily E-Mail Alert No. 2,155, November 14, 2010; and "OUSTR Announces Progress on US Korea FTA" in TLJ Daily E-Mail Alert No. 2,171, December 7, 2010.

Senate Confirms David Cole for DAG

David Cole6/28. The Senate confirmed David Cole to be the Deputy Attorney General, the second ranking position at the Department of Justice (DOJ), by a vote of 55-42. See, Roll Call No. 97.

It was a nearly straight party line vote. Five Republicans voted yes: Sen. Roy Blunt (R-MO), Sen. Scott Brown (R-MA), Sen. Susan Collins (R-ME), Sen. Jon Kyl (R-AZ), and Sen. Richard Lugar (R-IN). Three Democrats did not vote: Sen. Herb Kohl (D-WI), Sen. Joe Manchin (D-WV), and Sen. Tom Udall (D-NM).

Republicans had been filibustering this nomination. A vote to end this filibuster, which requires 60 votes, failed in May. See also, story titled "Senate Rejects Cloture on Nomination of James Cole to be Deputy Attorney General" in TLJ Daily E-Mail Alert No. 2,238, May 11, 2011.

However, Republicans ended the filibuster, and allowed this vote on confirmation, which requires 50 votes.

Sen. Charles Grassley (R-IA), a senior member of the Senate Judiciary Committee (SJC), explained that the filibuster was tied the the DOJ's failure "to respond to legitimate oversight requests" from Sen. Grassley and Sen. Saxbe Chambliss (R-GA), but that the DOJ has recently reached agreements with the two Senators regarding access to information.

Senate Confirms Seitz for OLC

Virginia Seitz6/28. The Senate confirmed Virginia Seitz (at right) to be the Assistant Attorney General (AAG) in charge of the Department of Justice's (DOJ) Office of Legal Counsel (OLC). See, Congressional Record, June 28, 2011, at Page S4164.

She was previously a partner in the Washington DC office of the law firm of Sidley Austin. President Obama nominated her in January. See, story titled "Obama Picks Seitz for OLC" in TLJ Daily E-Mail Alert No. 2,194, January 6, 2011.

She is the first OLC AAG since 2004. The Senate has not confirmed nominees for this inherently controversial position for almost a decade. The unit has been run by acting AAGs.

Like many DOJ units, the OLC drafts legal opinions. However, it is assigned many of the most important issues, including those in which two or more federal agencies are in conflict, and those which implicate major policy goals of the President.

People and Appointments

6/28. The Senate confirmed Lisa Monaco to be the Assistant Attorney General in charge of the Department of Justice's (DOJ) National Security Division (NSD). See, Congressional Record, June 28, 2011, at Page S4164.

6/28. President Obama nominated David Nuffer to be a Judge of the U.S. District Court for the District of Utah. He is currently a U.S. Magistrate Judge. See, White House news office release and release.

6/28. President Obama nominated Owen Ross to be a Judge of the U.S. District Court for the Eastern District of Washington. He is long time Assistant U.S. Attorney. See, White House news office release and release.

More News

6/28. The Department of Agriculture's (DOA) Rural Utilities Service (RUS) published a notice in the Federal Register that announces the availability of $325,663,157 in loan funds for the Rural Broadband Access Loans and Loan Guarantees Program for fiscal year 2011. It adds that applications under this notice of funds availability (NOFA) "will be accepted immediately". See, Federal Register, Vol. 76, No. 124, Tuesday, June 28, 2011, at Page 37779. The DOA previously published a notice in the Federal Register containing a notice of solicitation of applications (NOSA) prior to the passage of a final appropriations bill identifying a definite funding amount. See, Federal Register, March 14, 2011, Vol. 76, No. 49, at Page 13797.

6/28. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft SP 800-63 Revision 1 [110 pages in PDF] titled "Electronic Authentication Guideline". The deadline to submit comments is July 29, 2011.

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 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 is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny."

Alito 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.

More News

6/27. The  Federal Trade Commission (FTC) published a notice in the Federal Register requesting comments regarding the proposed self-regulatory guidelines submitted to the FTC by Aristotle International, Inc. under the safe harbor provision of the Children's Online Privacy Protection Act (COPPA) Rule. The deadline to submit comments to the FTC is August 8, 2011. See, Federal Register, Vol. 76, No. 123, Monday, June 27, 2011, at Pages 37290-37291.

6/27. Wayne Chih-Wei Shu was sentenced by the U.S. District Court (WDWash) to served three years in prison and to pay  $687,633 in restitution following his plea of guilty to mail fraud, trafficking in counterfeit goods, trafficking in illicit labels, and tax charges in connection with a scheme to profit from selling counterfeit Microsoft software. See, Department of Justice release.

6/27. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces, describes, recites, and requests comments on its proposed changes to certain patent fee amounts for FY 2012 to reflect fluctuations in the Consumer Price Index (CPI). The deadline to submit comments is July 27, 2011. See, Federal Register, Vol. 76, No. 123, Monday, June 27, 2011, at Pages 37296-37300.

Go to News from June 21-25, 2011.