Given the recent first amendment jurisprudence, especially this doozy of a decision protecting the rights of corporations to doctors’ individual prescription history, the decision to strike down California’s violent video game legislation should come as no surprise.  Yet, I’m sure that won’t soothe Sen. Yee (the author of the legislation) all that much.

The Supreme Court on Monday struck down California’s ban on the sale of violent video games to minors.

In a ruling closely watched by other states and the entertainment industry, the court in what amounts to a 7-2 ruling determined that California’s 2005 violent video game restrictions violated free speech rights protected by the First Amendment.

“Even where the protection of children is the object, the constitutional limits on governmental action apply,” Justice Antonin Scalia wrote for the majority. (SacBee)

While I do admit to being a nerd, I’m not all that much of a gamer.  Yet, I was never a huge fan of this legislation.  Penalties were rather harsh, but a strong argument could be made on both sides.  Sen. Yee and Gov. Brown, however, did support the measure quite strongly.  Brown, as Attorney General, pressed the case to the Supreme Court.  And now, well, we lost.  That’s not necessarily a bad thing on this particular issue, but it raises other questions.

So what have we learned from this episode? Well, it certainly confirmed that the Supreme Court believes that the First Amendment is really First. It has become monumental in its authority.  It now controls political funding to medical data, “speech” that the founders would never have envisioned at their time of the drafting of the Constitution.  I do not really care to psycho-analyze Madison and Hamilton, the Court already has that covered far too well, but how are we really to address the issues of the nation if we have a view of the Constitution that is so inflexible for modern times.

Perhaps you like this decision, or perhaps you don’t.  But when speech related issues come before the Legislature again, you can bet they will be chastened by this decision.

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.

This article written by: Former Assemblymember Hannah-Beth Jackson of Speak out California

It’s quite amazing how the Constitution of our country seems to come through—even to skeptics who think it’s an antiquated or unrealistic set of principles. While those who don’t support its freedoms try  numerous tricks and subterfuge to undermine it (unfortunately, with some success), it nonetheless remains an extraordinary living and breathing document.  The most precarious of these principles, particularly “in time of war” is the First Amendment, dealing with the right of free speech. That’s the one that reads,

  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

It seems that we have recently seen so many challenges to our rights and freedom in this country by the very people who are in charge of its government and are supposed to be preserving and protecting those very rights as defined by our constitution. They are often the very people who do not want the voices of the people to be raised in free and open exchange of ideas or criticism. Consider: All Saints Church in Pasadena, where its Pastor spoke openly against the war in Iraq and the IRS tried to challenge its tax-exempt status. Just this week, the IRS announced it was withdrawing its coercive effort. Then there is Erwin Chemerinsky,  the highly regarded constitutional scholar who was chosen to be the Dean of the newly created U.C. Irvine Law School, only to see his apppointment withdrawn by the Chancellor of the University in response to right-wingers who disagree with Chemerinsky’s  interpretation of the Constitution. But freedom of speech prevailed and after great public outcry, that appointment was properly restored.

And then we have the contrived assault on an organization that dared to challenge the accuracy of a report to Congress about the Iraqi War from its general in charge. By playing off of General Patreus’ name, MoveOn.org questioned whether or not he should be called General “Betray us”, given his less than straight-forward or candid assessment of what is truly going on in Iraq.  Did MoveOn have the right to say what it did? Absolutely. Was it controversial and perhaps in “bad taste”.  Was the young man who challenged Senator Kerry in Florida slightly obnoxious? While many of us might find the comments and behavior to be distasteful and wouldn’t have approached the discussion in similar fashion, where in the Constitution does it say you have to be polite in the exercise of one’s right to speak?  But this is all obfuscation and distraction from the real issue here: The Truth.

Was the information in Move-On’s article accurate? Was the challenge to Patreus’ claims legitimate? Did MoveOn have the constitutional right to do what it did? The answer is an unequivocal yes. Remember, this ad was simple speech, well-documented allegations and challenges to a stone-deaf administration that refuses to listen to the American people or acknowledge what the rest of the world has long known: This war has been a complete failure

Did their ad rise to the level of a Congressional rebuke? Absolutely not. But it would be hard to challenge the facts that they so studiously included . So, in keeping with the way the Bush administration and its apologists respond whenever they are caught with their hands in the cookie jar, they attacked the messenger, since they can’t attack the message because it is true. Think of Richard Holbrook, Joe Wilson (and Valerie Plame), just to name a few who have been vilified for speaking the truth about this administration’s lies and deceptions.

Shouldn’t we be focused instead on the CONTENT of the objection, rather than either the messenger, in MoveOn’s case (a liberal group)or the delivery of that message? The answer for MoveOn’s supporters is clearly “yes” and we are likely to see more, rather than fewer attacks on the administration’s orchestrated misinformation in the days and weeks ahead.

But for proof of the real success and genius of this country’s set of principles, as embodied by Article One of the Bill of Rights we need only to  look to the response to Iran’s President Mahmoud Ahmadinejad’s remarks at Columbia University yesterday. Clearly, the man is a loose cannon. His claims and statements are not credible and he did not serve his cause well. But isn’t it better to let him speak, to allow the people to see for themselves just who and what this divisive and out-of-touch demagogue really is? Shouldn’t we be trusting that the people can decide for themselves after hearing all points-of-view? Ahmadinejad may be a madman, but he’s also the leader of a very significant player in the Middle East. Isn’t it better to know the enemy, see how he thinks and thus be better equipped to deal with him? Or is it just for the “decider” to know—since we can surely trust his judgment and understanding of what motivates this hostile regime to do what it does and threatens to do?

And isn’t this exactly what America has stood for in the world–a place where people can come and express their differences in a peaceful yet passionate way, without fear of reprisal or sanction?  We can differ, and we must often agree to disagree, but one thing we should not disagree about is the power and sanctity of the First Amendment to our Constitution. We are a nation with a proud tradition of openness. We understand that speech is basically the articulation of ideas and opinions. It is why we let people speak when their hearts are full of hate and anger; why we allow people to stand on soap boxes and express opinions that are neither logical or coherent; It is, after all, what we are fighting for when we call out to protect liberty and freedom.

We must remember, however, that the fight for those freedoms begins first at home. Let us not forget that this right is what sets us apart from countries like Iran where there is no such freedom to dissent. It is our glorious tradition of openness and candor  that is among our greatest contributions to the world. With that freedom we have been able to discuss, debate and disagree our way into greatness of purpose and action. This is the gift our Founding Fathers gave us. This is the great tradition that nations have tried either to squelch through dictatorship or emulate through democracy. We are its bastion and its protector. We must rejoice in the debate and not allow those in power to destroy it. Otherwise, we become like the nations we so reject–where there is no freedom and no opportunity for  dissent, nations like Iran. We are better and must be better. Let us honor the tradition of openness in America. It has always served us well.

The California Supreme Court handed down their decision in Barrett v. Rosenthal(PDF) today. (H/t to Kos.)  Basically, the court says that the Communications Decency Act of 1996 protects website operators from liability for defamatory statements made by others and for statements that the website owner merely reproduces.  In those cases, the defamed party only has a cause of action against the original author of the statement.

We granted review to decide whether section 230 confers immunity on “distributors.”  Because this case involves the liability of an individual rather than a service provider, we asked the parties to address the definition of the statutory term “user.”  We also requested briefing on whether the immunity analysis is affected if a user engages in active rather than passive conduct.  We conclude that  section 230 prohibits “distributor” liability for Internet publications.  We further hold that section 230(c)(1) immunizes individual “users” of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use.  Accordingly, we reverse the Court of Appeal’s judgment.

We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences.  Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.

Sweet! Any of you readers care to make some defamatory statements?  It ain’t my problem.  But on a more serious note, this is a great victory for the Internet.  Whether this reading of the CDA holds up nationally is a different question, though.