Consumer Class Actions and Mass Torts : Class Action Lawyer & Attorney : J. Russell Jackson : Skadden Law Firm : Complex Class Actions : Consumer Class Actions & Mass Torts Law Blog

February 29, 2012 will go down as a red-letter day in First Amendment history.  It was the day that U.S. District Judge Richard J. Leon struck down regulations in which the federal government tried to force product manufacturers to publish the government's opinions about their products.  See R.J. Reynolds Tobacco Co. v. United States Food and Drug Administration, Civ. Case No. 11-1482 (RJL) (D.D.C. Feb. 29, 2012).

Last November, Judge Leon had granted a preliminary injunction against the regulations.  R.J. Reynolds Tobacco Co. v. FDA, 2011 WL 5307391 (D.D.C. Nov. 7, 2011).  Subsequently both sides had moved for summary judgment.  Yesterday, Judge Leon granted summary judgment for the tobacco industry and denied the government's summary judgment motion.

In response to Congress's mandate in the Family Smoking Prevention and Tobacco Control Act of 2009, the FDA issued a final rule requiring certain "warnings" on cigarette packs.  These "warnings" included 9 textual warnings, and ten graphic images.  The graphic images include:  a man blowing smoke through his tracheotomy hole, a cloud of smoke enveloping a baby being kissed by his mother, a pair of diseased lungs next to healthy lungs, a mouth with lesions, a man with an oxygen mask, a post-autopsy cadaver with chest staples, a weeping woman, a man wearing a t-shirt with the no-smoking symbol and the words "I QUIT," and a cartoon baby in an incubator.  Each graphic displays "1-800-QUIT-NOW."  These graphics are to take up 50% of the front and back panels of cigarette packages, and 20% of all printed advertising.

In publishing the final rule, FDA acknowledged that the graphic "warnings" are estimated to reduce smoking rates by 0.088%.  Slip op. at n.7.  Yes, that 88 thousandths of a percent.  And that's the estimate of the anti-smoking zealots who are imposing the new rule.  FDA conceded that such a reduction is "in general not statistically distinguishable from zero."  Slip op. at 5-6.

Let's be absolutely clear about what the government was trying to do here.  It hijacked 50% of the manufacturers' packages (and 20% of their print advertising) to force the manufacturers -- against their will -- to convey messages explicitly designed by the government's experts to manipulate people's emotions into preventing them from buying the manufacturers' lawful products.  This was forced speech, plain and simple.  Somebody call the ACLU!

The First Amendment, of course, does not allow the government to put opinions in your mouth and force you to repeat them.  Such rules typically merit strict scrutiny.  There was a fight in this case over whether strict scrutiny should apply.  The government argued that it shouldn't because it was "commercial speech" that deserved less constitutional protection, and purportedly involved merely government-mandated informational disclosures designed to prevent consumer confusion or deception.  See Zauderer v. Office of Disciplinary Counsel of Sup. Ct. of Ohio, 471 U.S. 626, 651 (1985). 

Horsefeathers!  These graphic images are not "purely factual" or "uncontroversial disclosures."  As the court recognized, "the graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking."  Slip op. at 11.  Indeed, the court cited the Institute of Medicine report, which clearly stated:

It is time to state unequivocally that the primary objective of tobacco regulation is not to promote informed choice but rather to discourage consumption of tobacco products, especially by children and youths, as a means of reducing tobacco-related death and disease.

Slip op. at 11.  Because the FDA's mandated "warnings" were not factual statements designed to inform or educate, but instead were opinions that smoking is bad and people should quit smoking, the regulations were subject to strict scrutiny.

To withstand strict scrutiny, a regulation must be narrowly tailored to achieve a compelling government interest.

Judge Leon concluded that the government had not introduced proof of a compelling government interest:  "Although an interest in informing or educating the public about the dangers of smoking might be compelling, an interest in simply advocating that the public not purchase a legal product is not."  Slip op. at 16.  Indeed, the court even noted that a study showed people already know and overestimate the health risks of smoking, which is why the use of even the graphic images proposed by the FDA was not going to appreciably change actual behavior.  Id. at n.15.

Moreover, Judge Leon held that the restrictions were far from narrowly tailored.  Notably, the court said, "there is no evidence that Congress even considered the First Amendment implications when drafting the Act."  Slip op. at 17.  And there were plenty of less speech-restrictive and burdensome alternatives than hijacking 50% of the manufacturers' packaging to achieve any legitimate government objective.  For example, "the Government could disseminate its anti-smoking message itself" through a media campaign.   It could have changed the display requirements to be less burdensome, such as reducing the "warnings" to 20% of only the front or the back of the package.  It also could have selected graphics that conveyed only factual information, rather than playing on viewers' emotions.  And it could improve law enforcement efforts to prevent unlawful sales to minors.  As the court observed, "because Congress did not consider the First Amendment implications of this legislation, it did not concern itself with how the regulations could be narrowly tailored to avoid unintentionally compelling commercial speech."  Slip op. at 19.

Villanizing tobacco companies is in vogue these days.  But their products are lawful and are enjoyed by millions of Americans.  Judge Leon understood that if the government is allowed to force these product manufacturers, however unpopular, to trumpet government opinions critical of their products, then before long it will do the same thing with other lawful products, like medicines or mobile phones.  Government is a behemoth that already has in its arsenal many, many ways to make its opinions known and discourage the use of products that it opposes.  It should not be allowed to conscript into its service manufacturers of lawful products and dictate that they speak against their own products.  Thankfully, the First Amendment requires much more before the government can compel speech from its citizens.

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Increasingly product sellers are challenging government regulations that seek to restrict or prescribe how sellers speak about their products.  Commercial speech is still speech that is protected by the First Amendment to the Constitution.  And the government must meet some pretty stringent elements to restrict a seller's truthful speech about its product.  Under the test articulated more than 30 years ago in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), the proponent of a government restriction on speech bears the burden of establishing (1) whether the expression is protected by the First Amendment (i.e., is not misleading and concerns lawful activity), (2) that the government has a substantial interest in the restriction, (3) that the restriction directly advances the asserted governmental interest, and (4) that the restriction is not more extensive than necessary to serve that interest.

Recently, a licensed importer of wine, liquor and certain brewed products successfully challenged some longstanding regulations that had been propounded by the Texas Alcoholic Beverage Commission.  See Authentic Beverages Co. v. Texas Alcoholic Beverage Commission, Case No. A-10-CA-710-SS, Slip op. (W.D. Tex. Dec. 19, 2011). 

Alcohol is a product with a long history of regulation in the United States.  After Prohibition, most states set up a series of rules and regulations establishing a "three-tiered system" of licensed alcohol producers, distributors, and retailers.  One of the primary goals of this system was to prevent anyone from controlling the entire distribution chain in so-called "tied houses".  Thus, producers generally must be separate from distributors, distributors must be separate from retailers, and producers generally cannot control retailers.  There are lots of regulations to enforce this separation.  A relatively common one is that a producer or distributor cannot give "something of value" to a retailer.  Some states view statements that a particular product is available at a particular retail outlet as advertising that is something of value to the retailer.  Accordingly, in some states, a producer may be proscribed from disclosing to the public where its product is sold.

Alcohol regulations also often have "temperance" as a goal; the state may seek to prohibit speech that it views as encouraging alcohol consumption.  Thus, some states may prevent a producer from labeling its product with a disclosure of the product's alcohol content.

In Authentic Beverages, the producer brought First Amendment challenges against three basic regulations.  First, Texas's Alcohol Beverage Code prevented producers and distributors from naming specific retailers who carried their products in advertisements.  Texas wineries, however, were exempt from these restrictions, and could list retail outlets carrying their products so long as no money changed hands in exchange for such an advertisement.

Second, the TABC defined "beer" and "ale" by alcohol content in a way that was inconsistent with popular understanding and brewing industry usage.  This, according to Authentic Beverages, made labeling confusing and misleading in Texas.  Beer, it explained, refers to the entire category of malt beverages, while "ale" is a particular style of beer made via warm fermentation with a certain kind of yeast.  The TABC, on the other hand, categorized malt beverages under 4% ABV as beer, and those over 4% as "ale," regardless of how they were made.

Third, the TABC prevented producers from advertising the alcohol content of malt beverages or using any statements comparing their "strength" to other beverages.  (Distilled spirits, by contrast, are required by the TABC to include alcohol content in advertising.)  Producers of malt beverages are required, however, to include the alcohol content on the label of the product.  Authentic Beverages argued that these restrictions were inconsistent and nonsensical.

The district court agreed with Authentic Beverages on all three of its First Amendment challenges to the Texas regulations.  With respect to the first challenge -- the proscription against identifying retailers who sell one's products -- the court noted:

While prevention of vertical integration may well be a substantial government interest, a restriction on the free speech rights of producers and resellers cannot be justified by pointing out that retailers are free to speak their minds.  Nor does the existence of a substantial government interest justify the imposition of any restriction on speech the government deems appropriate; in the commercial speech context, such a restriction must directly advance the interest, and be no more extensive than necessary to do so.  TABC offers neither argument nor evidence on these issues.

Slip op. at 24.

With respect to the second challenged regulations -- which lump all low-alcohol malt beverages into the "beer" category and all higher-alcohol malt beverages into an "ale" category -- the court assumed, for the sake of argument, that the state had a legitimate interest in helping its citizens distinguish between high-alcohol and low-alcohol malt beverages, particularly in communities that authorize only the sale of low-alcohol "beer" under the "wet-dry laws of the State."  Nevertheless, the court invalidated the regulations because they are "simply not that good at conveying information about the alcohol content of malt beverages" and "give little meaningful information about alcohol content to malt beverage consumers or providers."  Id. at 25, 26.  Instead of trying to change the common meaning of "beer" and "ale," the court instructed, the government's interest would be better served by allowing statements of the actual alcohol content:  "there can be little question an actual statement of alcohol content serves this interest better than two rough categories."  Id. at 27.  The TABC argued that common citizens don't know the alcohol content of "beer" versus "ale," but generally know that under the Texas regulatory system, these citizens knew beer was less potent than ale.  The court rejected this justification as "laughable," explaining:

The Court is confident that the same person could, if presented with the alcohol content of a variety of malt beverages, come to a reasonably quick and accurate conclusion regarding their average range.  Having determined the average range, this person could then make the intelligent choice whether to deviate from that range, in which direction, and by how much.  The Court simply does not share TABC's apparently low estimation of Texans, and remains steadfast in its belief that they are capable of basic math.

Id. at 28.

With respect to Authentic Beverages' third challenge -- to the proscription against the statement of alcohol content in advertising -- the court held that the TABC utterly failed to provide proof in support of its restriction.  Indeed, the court explained that given the internal inconsistencies between allowing alcohol content to be displayed on labels and for certain kinds of alcohol, the regulations could be viewed as frustrating any government interest the TABC could assert as much as they could be said to advance it.

The decision in Authentic Beverages is a strong reminder that commercial speech actually does enjoy real protection under the First Amendment.  It remains to be seen whether the challenges advanced in Texas will be taken up elsewhere by other alcohol producers.  Certainly state alcohol beverage codes are rife with provisions that would be susceptible to such challenges.

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One of the most troubling developments in products liability in the last decade has been the tendency of government entities to believe that they can force product sellers to deliver negative opinions about their lawful products by imposing labeling or signage requirements.  A recent example of such a trend is the City of San Francisco's ordinance requiring the sellers of mobile phones to post signs and stickers scaring the public about radio frequency energy emissions ("RF emissions"), even though the Federal Communications Commission has studied the issue for over a decade and has not found a scientific reason to require precautions against exposure to the limited amount of RF emissions that results from using mobile phones.

Recently, a federal court considered whether this ordinance violates the First Amendment.  Although it did not completely invalidate the ordinance, it did require significant changes in order to protect the product sellers' First Amendment rights.  See CTIA -- The Wireless Association v. The City and County of San Francisco, No. C 10-03224 WHA, Slip op. (N.D. Cal. Oct. 27, 2011). 

There has long been a debate about whether there are any health effects from exposure to RF energy from mobile phones.  The industry's position reportedly is that there is no reliable scientific or medical literature demonstrating that exposure to low levels of RF emissions causes adverse health effects.  The Federal Communications Commission had included on its own website a wireless device fact sheet.  San Francisco claimed to have derived from that site the various warnings that its ordinance was requiring mobile phone sellers to disseminate.  Notably, the FCC changed its fact sheet shortly after the plaintiff filed its lawsuit.  The FCC's new fact sheet indicated that the specific absorption rate ("SAR") of RF energy is not useful for comparing mobile phones and would be potentially misleading if used for that purpose.  Moreover, it stated:  "The FCC does not endorse the need for these practices, but provides information on some simple steps that you can take to reduce your exposure to RF energy from cell phones." 

San Francisco's ordinance was based on a finding that public health requires "cell phone retailers to inform consumers about the potential health effects of cell phone use, and about measures they can take to reduce their exposure to radiofrequency energy from cell phones."  Slip op. at 3.  The ordinance required: (1) retailers to display a poster written by San Francisco's Department of the Environment; (2) retailers to give purchasers a "fact sheet" developed by the Department of the Environment; and (3) retailers who use point-of-display materials to use a stickered message.

The posters are dominated by a graphic that uses silhouettes to show parts of the body that may absorb RF emissions.  It also warns that if you want reduce exposure, keep a distance between the phone and the body, use a headset or speakerphone, and ask for a free factsheet.  In tiny type at the bottom, the poster reads:  "This material was prepared solely by the City and County of San Francisco and must be provided to consumers under local law."  Slip op.at 4-5.

The fact sheet uses the same graphic.  It says that "ALTHOUGH STUDIES CONTINUE TO ASSESS POTENTIAL HEALTH EFFECTS OF MOBILE PHONE USE, THE WORLD HEALTH ORGANIZATION HAS CLASSIFIED RF ENERGY AS  A POSSIBLE CARCINOGEN."  It also has the same tiny dislcaimer as the poster.  On the back, it says San Francisco recommends limiting cell phone use by children, using a headset or speakerphone, using belt clips and purses to distance phones from the body, not using phones where there are weak signals, and reducing call volume and call length.

The sticker says that the body absorbs RF energy and instructs that if you want to reduce exposure, ask for the fact sheet.

Rather than requiring evidence of a statistically significant association between mobile phone use and any adverse health effect, San Francisco claimed that it was employing the "precautionary principle," "which provides that the government should not wait for scientific proof of a health or safety risk before taking steps to inform the public of the potential for harm."  Slip op. at 5.

Of course, if localities were free to impose their own labeling and signage requirements on mobile phones distributed nationally, the industry could quickly be swamped with a patchwork quilt of requirements that could make compliance a nightmare.  Despite this fact, the federal court concluded that -- although the field of technical RF emission standards is preempted by federal law and is solely within the province of the FCC -- "[n]othing in the federal statutes or FCC regulations bars local disclosure requirements like those now required in San Francisco."  Slip op. at 6.  The potential effects of this holding are troubling, to say the least.

Despite the fact that for many years sellers have taken a well-documented position that there is no health risk from low-level exposure to RF emissions, and that precautions like those advocated by San Francisco are not only unnecessary, but may cause consumers to choose phones that are not the best for their needs, the court classified this as a "commercial speech" case, using a lower standard of review to evaluate government regulation.  Slip op. at 7.  Interestingly, it did not cite to Central Hudson or engage in a "less restrictive means" test.  The court noted, however, that where government forces a party to speak against its position, those requirements are "subject to more exacting scrutiny," even in commercial speech cases. 

The court observed that "[w]hether or not cell phones cause cancer is a debatable question and, at this point in history, is a matter of opinion, not fact."  Id.  Nevertheless, it held that San Francisco "deftly dodged" the more exacting scrutiny that would apply to such forced speech by forcing disclosure only of "factoids," "all of which seem to be literally true."

The court held that the statement about WHO's classification of RF emissions as a possible carcinogen is misleading because people do not understand the International Agency for Cancer Research classification system, and the fact the "possible carcinogen" category includes such innocuous items such as coffee and picked vegetables.  (The court raises the question of whether coffee shops could be required to display posters and hand out fact sheets.)

The court dodged the issue of whether the government should be required to demonstrate at least a probable health risk -- rather than mere possible risk -- before it requires retailers to distribute speech against their beliefs and interests.  Slip op. at 10.  Instead, the court held that "a government may impose, out of caution, at least some disclosure requirements based on nothing more than the possibility that an agent may (or may not) turn out to be harmful."  Id.

The court started its First Amendment analysis with the fact sheet, concluding that the "overall message . . . is misleading . . . [because] [t]he overall impression left is that cell phones are dangerous and have somehow escaped the regulatory process . . . [and] the failure to explain the limited significance of the WHO 'possible carcinogen' classification."  Slip op. at 11-12.  Thus, it required San Francisco -- as a condition to not invalidating the entire ordinance -- to amend the fact sheet to include a statement explaining that all mobile phones sold in the US must comply with RF emission limits set by the FCC.  It also required San Francisco to state that "RF energy has been classified by the World Health Organization as a possible carcinogen rather than as a known carcinogen or a probable carcinogen and studies continue to assess the potential health effects of cell phones."

The court also directed San Francisco to lose the silhouette graphic, which it deemed as capable of the interpretation that mobile phones are dangerous.  It concluded that the "image conveys a message that is neither factual nor uncontroversial, for cell phones have not been proven dangerous," and dubbed the graphic "too much opinion and too little fact."  Slip op. at 12-13.

As for the poster, the court concluded that because the fact sheet was approved, the poster was "not reasonably necessary and would unduly intrude on the retailers' wall space."  Accordingly, it directed San Francisco to get rid of the poster requirement.

The court also held that "[t]he sticker requirement is also unconstitutional" because it "will unduly intrude on the retailers' own message."  Slip op. at 13.  The sticker did not disclose that it was solely San Francisco's message.  Moreover, requiring "retailers to paste the stickers over their own promotional literature" would "unduly interfere with the retailers' own right to speak to customers."

Ultimately, the court granted a preliminary injunction against the enforcement of the ordinance, directing the parties to submit an agreed-upon version of the fact sheet that would be the only form of forced speech the court would allow.

Although this opinion is important because it recognizes some constitutional limits on how far a government entity can go in forcing a party to speak against its beliefs and interests, it ultimately fails to give a satisfactory analysis of the First Amendment precedents surrounding forced speech, and fails wholly to address the "less restrictive means" San Francisco would have of communicating to the public its view of precautions one can take to reduce a risk that has not even been scientifically established yet.  Government speech -- using the internet, public service announcements, or even signage on public transit -- would achieve the same effect without forcing a party to disseminate speech with which it disagrees.  Particularly where the government can demonstrate no threat to public health whatsoever, there simply can be no justification for forcing a party to disseminate messages with which it disagrees.

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I have written a number of posts about the fact that making health claims in advertising is one of the surest ways to invoke the ire of the Federal Trade Commission and the Food and Drug Administration.  Indeed, sellers of breakfast cereals, over-the-counter medicines, and dietary supplements all have learned this lesson recently, settling false advertising claims with the FTC.

But not POM Wonderful, the maker of pomegranate products, including POM Wonderful juice and POMx dietary supplement pills and liquid.  The company, which has an aggressive marketing campaign centered around the health benefits of consuming pomegranate products, recently took on the FTC Clint Eastwood-style.  It filed a federal complaint in the District of Columbia, seeking a declaratory judgment that the FTC has violated the Constitution and the Administrative Procedure Act by effectively promulgating new rules that would prohibit POM Wonderful from engaging in speech about the health benefits of its products.

The crux of POM's complaint is that the FTC has told POM that the agency is now applying to all marketers a new standard set forth in recent settlements with Nestle and Iovate Health Sciences.  These settlements basically prohibit a marketer from making representations that its product is effective in preventing or curing diseases unless the representation is subject to a tentative or final Over-The-Counter ("OTC") drug monograph promulgated by the FDA or is the subject of an approved new drug application.  For statements about health claims like weight loss, the settlements generally require the marketer to rely on "competent and reliable scientific evidence that substantiates that the representation is true," which means having "at least two adequate and well-controlled clinical studies . . . conducted by different researchers, independently of each other, that conform to acceptable designs and protocols and whose results, when considered in light of the entire body of relevant and reliable scientific evidence, are sufficient to substantiate that the representation is true."  See FTC v. Iovate Health Sciences USA, Inc., No. 10-CV-587 (W.D.N.Y. July 29, 2010) (Stipulated Final Judgment and Order for Permanent Injunction and Other Equitable Relief).

POM's complaint alleges that it invested tens of millions of dollars funding scientific research into the health benefits of pomegranates based on the FTC's prior "substantiation standard," which POM alleges merely required a marketer to posses "'competent, reliable scientific evidence' to substantiate the representation."  POM alleges that, by requiring prior FDA approval for some types of statements and 2 independent studies for others, the "new FTC rules essentially bar POM from discussing or disclosing the results of its research and the benefits of its products."  This, according to POM, violates the First Amendment, amounts to a "taking" of a "substantial property interest in the scientific research [POM] has funded," is a violation of the Administrative Procedures Act, is an unlawful attempt to enforce the Food, Drug & Cosmetics Act, and exceeds the FTC's authority.

The FTC was not amused.  Less than 2 weeks later, it filed an administrative complaint challenging POM's advertising.  It sets out in copious detail the text of a variety of marketing materials for POM's juice, pill and liquid products.  They make claims about these products' ability to reduce the risk of prostate cancer, prolong the doubling time for prostate-specific antigen, decrease arterial plaque, improve blood flow, reduce blood pressure, and cure erectile dysfunction.  The ads often mention that POM has spent twenty million dollars or more on scientific studies, and often discuss those studies.

The FTC's complaint takes issue with the accuracy of POM's health statements and descriptions of the studies.  For example, in discussing cardiovascular benefits, the FTC noted:

[T]he Davidson Study showed no significant difference between consumption of pomegranate juice and a control beverage in carotid intima-media thickness progression rates after 18 months.  two smaller studies funded by POM Wonderful or its agents showed no significant difference between consumption of pomegranate juice and a control beverage on measures of cardiovascular function; and multiple studies funded by POM Wonderful or its agents did not show that POM Wonderful products reduce high blood pressure.

FTC Compl., para. 13.  Thus, the FTC challenges not only what studies POM relied on, but also the fact that POM knew of other studies that do not prove the statements they were making.

Much of the marketing that the FTC pointed to has been pulled down on POM Wonderful's website, but summaries of studies are on a related site, with links to the actual studies themselves.

This is shaping up to be a very interesting commercial speech battle in the field of consumer fraud law.  It remains to be seen whether POM Wonderful will have the staying power to see it through to the end.

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Few people seem to give a damn about the First Amendment anymore.  Increasingly, proponents of a Nanny State seek to impose governmental restrictions on what adults can see, watch and hear.  One of their favorite tactics is to prey on society's fear of harming "the children" -- as if parents have no responsibility to monitor what media their children consume and provide personal guidance about individual responsibility and what is right and wrong.  For example, certain parents employed the longstanding tactic of demonizing product advertising as virtually irresistable mind control in a series of unsuccessful class actions brought to impose upon alcohol beverage advertisers the responsibility for their own teenagers' intentional violations of state underage drinking laws.  See, e.g., Alston v. Advanced Brands & Importing Co., 494 F.3d 562 (6th Cir. 2007).  Similarly, plaintiffs have attempted -- unsuccessfully -- to impose on entertainment providers the responsibility for a troubled schoolchild's murderous rampage.  See James v. Meow Media, Inc., 300 F.3d 683 (6th Cir. 2002). Moreover, in far too many instances, the majority of legislators seems willing to ban or limit speech for adults in ways that contravene the First Amendment. 

Perhaps that is why the Entertainment Software Association's recent victory in the Ninth Circuit is so gratifying; it demonstrates an unbroken series of over a dozen cases in which local or state laws restricting video game sales have been invalidated on First Amendment grounds.  In Video Software Dealers Association v. Schwarzenegger, No. 07-16620, slip op. (9th Cir. Feb. 20, 2007), the Ninth Circuit upheld a district court's decision invalidating a California statute that prohibited selling a "violent video game" to a minor and imposed a labeling requirement on all video games deemed "violent" under an amorphous definition.  The Ninth Circuit recognized -- and even the State of California did not contest -- that video games "are a form of expression protected by the First Amendment."  Slip op. at 1951.  Because the statute sought to restrict expression in video games based on their content, the court gave the statute strict scrutiny review. 

Under the strict scrutiny level of review, the statute is presumptively invalid and is evaluated in two steps.  First, it "'must be narrowly tailored to promote a compelling Government interest.'"  Id. at 1952 (citation omitted).  Second, "'[i]f a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative.'"  Id. (citation omitted).

The State of California had objected to the use of strict scrutiny review, arguing that because the statute was enacted to protect children, it should only have to meet a rational basis review.  The Ninth Circuit disagreed, noting that the case the State relied upon was based in the U.S. Supreme Court's obscenity jurisprudence, which relates to sex-based expression that is not protected by the First Amendment.  Violent content, in contrast, retains its First Amendment protection.  Id. at 1953.

The Ninth Circuit proceeded to analyze the State's interest, which the State identified as "'preventing psychological or neurological harm to minors who play violent video games.'"  Id. at 1957 (quoting the statute).  The court noted that it was important to distinguish between a legitimate interest in protecting minors from neurological harm and an illegitimate interest in controlling their thoughts.  The State put forth experts who relied on a number of studies, but those studies did not establish proof of a negative neurological effect on minors who played violent video games.  Rather, they noted the "relative paucity of the video game literature" and conceded that that literature "is not sufficiently large to conduct a detailed meta-analysis."  Id. at 1960.  Moreover, the studies only documented, at best, a correlation between exposure to violent media and the exhibition of hostility or aggression, they did not document a causal effect.  Id. at 1961-63.  The Ninth Circuit concluded that the State failed to meet its burden to demonstrate a compelling interest that could be met by the statute.

The Ninth Circuit then proceeded to the second step of the analysis:  whether the statute was narrowly tailored to meet the governmental interest and there were no less restrictive means for doing so.  This is where the State's case really crumbled.  The video game industry engages in self-regulation through the Entertainment Software Rating Board ("ESRB"), an independent body that rates video game content with one of six age-specific ratings, from "Early Childhood" to "Adults Only."  Id. at 1946.  It also assigns each game at least one of roughly 30 content descriptors, including "Cartoon Violence," "Intense Violence," "Crude Humor," "Blood and Gore," and "Sexual Violence."  Id. at 1947.  Thus, parents are able to easily monitor the content of games their children may ask for.  The State argued that this voluntary system of self-regulation did not sufficiently keep mature-rated games out of the hands of minors.  But in touting the superiority of its statute, the State simply missed the point:

Further, the State does not acknowledge the possibility that an enhanced education campaign about the ESRB rating system directed at retailers and parents would help achieve government interests. . . .  The State appears to be singularly focused on the "most effective" way to further its goal, instead of the "least restrictive means," and has not shown why the less restrictive means would be ineffective.

Id. at 1964 (citations omitted).  Thus, the Ninth Circuit held that the statute also failed the "less restrictive means" prong of the First Amendment analysis.

The Ninth Circuit's recent decision is a strong reminder that where industries engage in effective self-regulation and take care to accommodate consumers' concerns about their products and advertising, the First Amendment can be an important guardian against the inclination of many well-meaning individuals to have government dictate speech content under the guise of "protecting" the public interest.

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