Flash back to 2005. In those heady days, Leland Yee was an Assemblyman who got a big piece of legislation passed and signed by the Governor. The legislation prevented the sale and rental of violent video games that depict serious injury to human beings in a manner that is especially heinous, atrocious, or cruel, to consumers who are under 18 years old.
The legislation was eventually struck down under the First Amendment by the 9th Circuit Court of Appeals in Schwarzenegger v. Video Software Dealers Association. Now that case is heading up to the big-time, as the Supreme Court has granted writ of certiorari on the case. It will be heard in the next term:
Schwarzenegger said he was pleased the high court will review that decision. “We have a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions, just as we already do with movies,” the governor said. …
Michael D. Gallagher, president of the Entertainment Software Association, said video games should get the same First Amendment protections as the court reaffirmed last week for videos.
Given last week’s ruling, “we are hopeful that the court will reject California’s invitation to break from these settled principles by treating depictions of violence, especially those in creative works, as unprotected by the First Amendment,” he said.
Leland Yee, the California state senator who wrote the video game ban, said the Supreme Court obviously doesn’t think the animal cruelty video ban and the violent video game ban are comparable. If they thought that, he said, the justices would not be reviewing the Ninth Circuit’s decision to throw out the video game ban. (WaPo)
Now, the big story here is that just last week the Court came out with a decision that struck down a law that banned the sale of so-called “crushing” videos as overbroad and not narrowly tailored. Yee and the state will be arguing that this law is sufficiently narrow and different from that case (Stevens) that this law should be upheld.
While it isn’t all that common to see multiple cases on similar issues being taken up so frequently, it is possible that at least 4 justices on the court see an opportunity to futher define the counters of First Amendment jurisprudence with this case. Which side of the line the video game law resides on is the $64,000 question, and we won’t get an answer on that for a while now.