Silha lecturer Paul Smith urges justices to find state law unconstitutional
On October 18, 2010, Paul Smith, a veteran of more than a dozen Supreme Court oral arguments, spoke to an overflow crowd at the University of Minnesota's Cowles Auditorium for the 25th Annual Silha Lecture about another case that he was about to argue before the Court. In that case, Schwarzenegger v. Electronic Merchants Ass'n, No. 08-1448 (2010), Smith argued against the State of California, which he said "tried to take the doctrine of obscenity for minors ... and apply it to violence in video games." Smith argued that the Court should not create a new exception to the First Amendment allowing states to prohibit the sale of violent video games.
Currently a partner with Jenner & Block's Washington, D.C. office, Smith specializes in commercial and telecommunications litigation, intellectual property, and election law. Among his best-known Supreme Court cases are Lawrence v. Texas, 539 U.S. 558 (2003) and United States v. American Library Ass'n, 539 U.S. 194 (2003). Smith clerked for U.S. Supreme Court Justice Lewis Powell in 1980-1981. In 2010 he was named one of National Law Journal's "40 Most Influential Lawyers of the Decade."
Smith's most recent Supreme Court case was prompted by California's 2005 passage of California Civil Code § 1746, which prohibited the sale of violent video games to any person under the age of 18. The statute had a two-part definition for "violent video game." First, the game must be one "in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being." Second, those options must be portrayed in the game in a way such that "[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors ... is patently offensive to prevailing standards in the community as to what is suitable for minors ... [and] as a whole, lack[s] serious literary, artistic, political, or scientific value for minors." The definition in the California statute is a reformulation of the rule of law announced in the landmark U.S. Supreme Court case Ginsberg v. New York, 390 U.S. 629 (1968) which upheld a New York statute prohibiting the sale of adult magazines to minors. The Ginsberg test is identical in every respect to the test in §1746, except that Ginsberg bans works that "appeal[ed] to . . . prurient interests," not "deviant or morbid interests of minors." Under the California law, stores which sell prohibited video games to minors would be subject to fines of up to $1,000.
Trade groups representing video game developers challenged the California law in federal district court as facially unconstitutional, and sought a preliminary injunction to prevent its enforcement, arguing that video games are a protected form of expression under the First Amendment. In a 2005 ruling, United States District Judge Ronald Whyte found, as a threshold matter, that "[n]either the Supreme Court nor the Ninth Circuit has ever extended the Ginsberg analysis beyond sexually-obscene material." The state argued that Ginsberg should apply to § 1746 because the rationale in Ginsberg--protecting children from harm that exposure to the material would cause-- also applied to violent video games. For example, Whyte wrote, the state argued that it "could regulate a minor's access to games about embezzling, bomb building, and shoplifting, without violating the First Amendment, if a causal connection with harm to children could be established." Video Software Dealers Ass'n v. Schwarzenegger, 401 F. Supp. 2d 1034 (N.D. Cal. 2005)
Whyte rejected the state's arguments, writing that "[n]o court has previously endorsed such a limited view of minors' First Amendment right," and that therefore § 1746 was a content-based restriction on protected First Amendment expression to which strict scrutiny applied. Under a strict scrutiny analysis, a content-based restriction on expression is constitutional only if the state can justify the regulation by a "compelling state interest" and that the regulation is the "least restrictive means" of achieving that interest. Whyte issued a temporary injunction blocking enforcement of the law until the issue of its constitutionality could be determined.
Two years later, Whyte heard arguments on whether the law withstood strict scrutiny. Whyte found that "prevent[ion of] violent, aggressive and antisocial behavior by minors who play video games," are compelling state interests "except to the extent they intend merely to control a minor's thoughts." Whyte acknowledged that whether these harms are truly compelling is subject to debate. For example, Whyte noted that in the case American Amusement Machine Ass'n v. Kendrick, 244 F.3d 572 (7th Cir. 2001), 7th U.S. Circuit Court of Appeals Judge Richard Posner argued that "[t]o shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it." Nevertheless, Whyte found that "the government has a compelling interest in protecting the physical and psychological well-being of minors." Video Software Dealers Ass'n v. Schwarzenegger, 2007 U.S. Dist. LEXIS 57472 (N.D. Cal. 2007)
However, Whyte found that § 1746 was not the least restrictive means of achieving those interests. Whyte wrote that the definition of "violent video game" in the statute "has no exception for material with some redeeming value, and is therefore too broad. The definition could literally apply to some classic literature if put in the form of a video game." Whyte noted that in borrowing language from Ginsberg in drafting the language of the statute, "there is some precedent for finding the definition sufficiently narrow to meet constitutional standards." But Whyte found that the statute was nonetheless not the least restrictive means because studies submitted to the court showed that early adolescents might react to violent imagery differently than older adolescents. Therefore, Whyte concluded, because the act applies to all people under 18, and not only those who would be adversely affected by violence depicted in video games, the law was not narrowly tailored. Finding that the law failed to pass strict scrutiny, Whyte permanently enjoined the state from enforcing the law.
The state appealed to a panel of the 9th U.S. Circuit Court of Appeals. The Court noted that the state's attempt to apply Ginsberg's standard outside the bounds of sexually prurient materials was "an invitation to reconsider the boundaries of the legal concept of 'obscenity' under the First Amendment." The appellate panel found that "Ginsberg is specifically rooted in the [Supreme] Court's First Amendment obscenity jurisprudence," which has "consistently addressed obscenity with reference to sex-based material" and not violence-based material. Therefore, the panel "decline[d] the State's invitation to apply the Ginsberg rationale to materials depicting violence, and hold that strict scrutiny remains the applicable review standard." Video Software Dealers Ass'n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009)
The panel wrote that although the state submitted myriad psychological testimony on the purported adverse effects of violent video games on children, "[n]one of the research establishes or suggests a causal link between minors playing video games and actual psychological or neurological harm ... [i]n fact, some of the studies caution against inferring causation." Therefore, "although [the panel] does not require the State to demonstrate a 'scientific certainty,' the State must come forward with more than it has." Concluding that the state had not met its burden, the panel affirmed Whyte, and held the law unconstitutional.
Despite losing twice in lower courts, the State of California appealed § 1746's constitutionality to the U.S. Supreme Court, which granted certiorari on the question of "whether a state regulation for displaying offensive, harmful images to children is invalid if it fails to satisfy the exacting 'strict scrutiny' standard of review."
In addition to the merit briefs in the case, which largely reiterated arguments made in the district and appeals court, several media law advocacy groups filed an amicus brief on behalf of the Electronic Merchants Association. The groups filing the brief included, among others, the Reporters Committee for Freedom of the Press, The First Amendment Center, and the Society of Professional Journalists. The brief argued that creating a First Amendment exception for the government to prohibit violent speech is the edge of a dangerous slippery slope towards chilling other protected speech. Reporters may be less apt to report in detail on news stories involving violence out of fear that they would open themselves up to sanctions by the government, the brief argued.
In the November 2 oral arguments, many of the Court's questions to State Assistant Attorney General Zackery Morazzini focused on why the state singled out video games for regulation when other forms of expression also include violent content. Associate Justice Sonia Sotomayor asked Morazzini "Could you get rid of rap music? Have you heard some of the lyrics of some of the rap music ... that have been sung about killing people and about other violence directed to them?" Similarly, Chief Justice John Roberts and Associate Justice Ruth Bader Ginsburg asked why not also ban violent movies, books, or music. Morazzini replied that studies have shown negative psychological effects of video games, which is what prompted the law in the first place, whereas the negative effects of rap music, books, or movies have not been proven. Justice Elena Kagan then asked whether, if a new study came out demonstrating the negative effects of violent movies on children, the state could ban those movies. Morazzini declined to answer Kagan's question directly.
Justice Antonin Scalia's questions probed Morazzini on the historical role of violence in Western culture. "Some of the Grimm's fairy tales are quite grim to tell you the truth," Scalia said, "are you going to ban them too?" "Not at all, your honor," Morazzini replied. Later in the argument Scalia expressed concerns about creating a new category of unprotected, violent speech. "I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. ... It has never been understood that the freedom of speech did not include portrayals of violence. What's next after violence? Drinking? Smoking? Movies that show smoking can't be shown to children?" Scalia asked. Before Morazzini could respond, Justice Samuel Alito, poking fun at Scalia's notorious adherence to constitutional originalism, interjected with a question that prompted laughter from the audience: "I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?" Scalia replied, "No, I want to know what James Madison thought about violence. Was there any indication that anybody thought, when the First Amendment was adopted, that there ... was an exception to it for speech regarding violence? Anybody?" Morazzini did not offer an answer.
During Smith's argument, the Court focused on whether harm to children might result from exposure to violent video games. Roberts pointed out that in Ginsberg, there was also competing psychological testimony on both sides of the case, and that therefore the Court could rely on its "common sense" as much as on expert testimony in assessing the harm to children. Roberts also asked whether the level of violence depicted in some video games is greater than the kind historically permitted in children's movies, books, and songs. "We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they'll beg [for] mercy, being merciless and decapitating them, shooting people in the leg so they fall down," Roberts said. "We protect children from that." Smith responded by noting that it had been parents, not the government, that historically shielded children from that level of violence, and that "[t]he question before this Court is whether you are going to create an entirely new exception under the First Amendment, whether parents need to have such a new exception created, and whether or not if you are going to do it you could possibly figure out what the scope of that exception is."
Smith's arguments before the Supreme Court reflected points made two weeks earlier in his Silha Lecture. In the lecture, Smith said that research that is supposed to support restricting violence in video games does not provide enough evidence to "draw a law that is workable." He added that it is important for the law to distinguish between sexual materials and violent materials, and that there is a principled First Amendment basis for restricting speech based on the former and not the latter. "[Violence] is a part of minors' lives in a way that explicit sexuality is not a part of their lives," Smith said, "and so it is, because of that reality, difficult to figure out how you could draw a statute that says [the films] 'Star Wars' and 'Lord of the Rings' are over here, but [the game] 'Grand Theft Auto' is over here."
In his lecture, Smith did not speculate on how he believed the justices would be inclined to vote, but said that he was optimistic about his chances because of strong First Amendment values on the current Court. Although the Court has become more conservative in the past 15 years, Smith said, it has not "done much cutting back on First Amendment rights." He added that in at least one recent free speech case, United States v. Stevens, 130 S.Ct. 1577 (2010), the majority opinion, written by conservative Chief Justice Roberts "could've easily been written by Justice Brennan, the famous advocate of First Amendment rights." For more on the Stevens Case, see "Supreme Court Strikes Down Law Banning Depictions of Animal Cruelty, Citing 'Alarming Breadth' of Statute" in the Winter/Spring 2010 issue of the Silha Bulletin. A ruling in Schwarzenegger v. Electronic Merchants Ass'n is expected by late June or early July 2011.
The annual Silha Lecture is supported by a generous endowment from the late Otto Silha and his wife, Helen. Video of the lecture is available on the Silha Center's Web site at http://silha.umn.edu/events.
- Geoff Pipoly
Silha Research Assistant