The Ninth Circuit Holds California Law Restricting Sales of Violent Video Games Violates the First Amendment
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.
