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.

In what was a victory for the Video Game industry, Judge Ronald Whyte struck down the ban against selling or renting M-Rated games to minors. Attorney General Jerry Brown has vowed to appeal the decision to the 9th Circuit.  In overturning the law, Judge Whyte found that the state did have a compelling interest in regulating video games due to studies indicating violent games can harm children. 

As for me, I was never a huge fan of this law as I was troubled by the First Amendment concerns raised in this decision. If the decision stands, one would expect Sen. Yee to work on crafting a new bill quickly. Press release over the flip.

Federal Court Leaves Children at Risk of Violent Video Games

Yee Responds to Overturn of Violent Video Game Law

SACRAMENTO – United States District Court Judge Ronald Whyte today struck down Assembly Bill 1179, the violent video game law authored by then Assemblyman and now Senator Leland Yee (D-San Francisco/San Mateo) and signed by Governor Arnold Schwarzenegger (R-Los Angeles), from taking effect. Senator Yee expressed deep concern with decision and urged the Governor and Attorney General to immediacy appeal to a higher court.

“I am shocked that the Court struck down this common-sense law” said Senator Yee. “AB 1179 worked to empower parents by giving them the ultimate decision over whether or not their children should be playing in a world of violence and murder.”

Assembly Bill (AB) 1179 was intended to prevent 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, by persons who are under 18 years of age. Retailers who violated the act would be liable in an amount up to $1,000 for each violation.

Judge Whyte’s 17-page opinion stated that “neither the legislative findings nor the evidence submitted by defendants suggest that the expression in violent video games is directed to inciting or producing imminent lawless action” and that language within the Act is “broad”. Judge Whyte also stated that the State must prove that the video game industry’s rating system does “not equally address the state’s interest in protecting the physical and psychological well-being of children.”

Recent Federal Trade Commission studies suggest that the video game industry’s rating system is not working. In fact, more than half of the children under age of 17 were able to purchase M-rated games which are designed for adults.

Despite the setback for child advocates, this case was deliberated for over a year and was the first time a court recognized the state’s compelling interest to intercede in the video game industry. Judge Whyte stated “The desire to regulate the exposure of minors to senseless violent acts is understandable and, perhaps, more important than regulating exposure to obscenity…Most parents hope that their children will grow up to be non-violent. If exposing minors to depictions of violence in video games makes them experience feelings of aggression and exhibit violent anti-social or aggressive behavior, the state could have a compelling interest in restricting minors’ access to such material.”

“The $31 billion video game industry has fought any attempt at regulation every step of the way,” said Senator Yee. “They fought efforts to publicize their rating system because they thought it would impact sales, and now they’re again putting their profit margins over the rights of parents and the well-being of children.”

According to the National Institute for Media and the Family, eighty-seven percent of children play video or computer games, and approximately sixty percent of their favorite games are rated M for Mature. Mature-rated games are the fastest growing segment of the video game industry; in fact the top selling games reward players for killing police officers, maiming elderly persons, running over pedestrians and committing despicable acts of murder and torture upon women and racial minorities.

In drafting this legislation, Yee worked with constitutional experts to differentiate AB 1179 from that of legislation in other states that have been unsuccessful in the courts, by establishing a state interest in regulating video games based on known detrimental effects and the likely harm these products may cause.

“The deliberations in this case took over a year, which shows that the ever-growing body of evidence that violent video games are harmful to children is getting harder and harder to ignore,” said Yee, who is also a child psychologist. “The medical data clearly indicates that these ultra-violent video games have harmful effects on kids, and thus we have a state interest to protect them.”

“We simply cannot trust the industry to regulate itself,” said Yee. “I strongly urge the Governor and the Attorney General to appeal this decision to a higher court and to the Supreme Court if necessary until our children are protected from excessively violent video games.”