"Grand Theft First Amendment" (h/t Slate)

And Also: No major voting decisions for me today except for a term limit provision I rejected. [It won.] Had to fill in ovals three times, since the first two sheets were rejected by the scanner because the paper was torn on the bottom. Also, wrote in a protest candidate for a local judicial race, since I never heard of these people.

It is a tad ironic that the current governor of California is the named plaintiff in case heard in front of the U.S. Supreme Court today concerning violent video games. Minors, particularly teens, are after all a major audience for his violent movies, many of which inspired violent video games. I don't know his opinion on the matter, but as seen in the same sex marriage case, just because a governor (or executive in general) is named in the case, s/he is not necessarily a big fan of the legislation. Right, Obama?

The matter has received a lot of attention from some of my favorite haunts (see, e.g., here and here, plus Slate, Volokh Conspiracy and surely other places). The immediate issues:

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?

2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of violent video games to minors?

As with a law against crush videos, video games bring the Supremes into new areas, raising various questions involving the virtual world. The Supreme Court already dealt with "virtual porn," protecting virtual expression that depicts things that might be illegal if done by real actors. It struck down this attempt to go beyond obscenity. This includes a law with some protection of minors aspect, if not regarding what they themselves watch. Expanding the forbidden zone to violent video games would do something disfavored by if left open by the crush video case.

As the opening links suggest, children are exposed to violence in any number of contexts, particularly in various types of literature which are deemed "classics" by many people. Why should video games be deemed so different to warrant a prohibition? Now, it is pretty unclear that a majority will decide that they can't be regulated. One area that I think it very well overturn the lower courts is in regards to the (compelled) labeling provision. Labeling of music was a big controversy back in the day because it is inherently subjective and a sort of mark of Cain that can lead to stores not selling them. But, who knows what the majority, including Breyer and Kagan, will decide there. [After reading analysis, seems a majority is against the law as a whole.]

The case is also about standard of review. The lower court opinion suggests (as does the Julie Hilden essay) that not requiring the "direct" link would in effect be a matter of overturning precedent. If they didn't want to do that, why take the case? Reading the tea leaves is a messy proposition. Breyer likes precedent. Kennedy is a pretty strong First Amendment guy, but does think children are different. Kagan is soemthing of a question mark -- this case can serve as a way to get her on record. And, though the pickings look a bit thin, will the evidence be enough to convince a majority to uphold the law? Analysis of the orals suggest a majority wants to provide something for those who support regulation here.

The state hopes that the "variable obscenity" rule applied to minors in respect to sex will now be applied for violence. The law itself is patterned after the three part test for obscenity, minors style. This underlines the problem with the expansion of one more verboten area -- the rules there are already so vague. What does "deviant or morbid interest of minors" mean, exactly? The rules clearly aren't the same for children and adults (keeping certain non-sexual books out of a children's library is acceptable, less so for the adult section) but the lower court opinions and so forth provide good analysis on why this shouldn't save the law. The double standard leaves something to be desired, even though for good or ill it reflects our society's sentiments, but evenhanded censorship in this case shouldn't be the solution.

Still, the Court might suggest certain regulations might be legitimate here for children (the district court suggested a very narrow law against really realistic games, perhaps if was for those under 13 or again maybe some sort of labeling law). The Slate article said the law was "pretty precise," but it also potentially covers a lot of ground -- many games involve maiming and killing people, including combat type games. Will an accurate "war on terror" game be covered? The "common sense" (to quote Justice Breyer during orals) thing is to recognize that children will have many ways to access this material, including online.

I suspect the Court will allow some additional regulation, perhaps labeling, but find restriction of sale pursuant to this law overbroad. There might also be concurrences that provide different perspectives, though I would not be surprised if a united Court would collect around a relatively narrow ruling.