Legal Expert Says California's Supreme Court Bid is Likely to Fail

May 22, 2009 -

An expert on media law has told the Christian Science Monitor it is unlikely that the United States Supreme Court will accept California's petition to review the constitutionality of its violent video game law.

Dave Kohler (left), who heads the Southwestern Law School Donald Biederman Entertainment and Media Law Institute, told the CSM:

For a variety of reasons, I don't think [the Justices will] take [California's case]. The most significant one is the fact that if you apply this [violence] standard to video games, then you have to apply it to television, movies, and pay cable shows as well.

You're talking about the central topic of many of the great works of literature throughout history.

Aong that line, the CSM takes note of the 2001 ruling by Judge Richard Posner of the U.S. 7th Circuit Court. In striking down an Indianapolis game violence statute, Posner wrote:

To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.

DOCUMENT DUMP: Read Judge Posner's decision in AAMA v. Kendrick.


Comments

Re: Legal Expert Says California's Supreme Court Bid is Likely

I think we need more people like this guy on TVs just so parents can get the right message.

 

It hate it when politicians and news reporters and family groups go for the common sence apporach when it comes to arguments against Violent Videogames or Violent Media in general.

Because common sence is only a method of belief but it does not make it right in the eyes of the law and the American Constitution.

 

TBoneTony

Re: Legal Expert Says California's Supreme Court Bid is Likely

Give this guy a break, willya? Yes, he's saying the same thing most of US are saying- the difference is that he's telling it to people who haven't said it, or may not have heard about it in the first place. Sad as it is, there are ALOT of people in the U.S. who have no idea how our judicial works- some are even misguided enough to believe that laws like these could work, and at worst, some DELUDE themselves into thinking that it's for the best, regardless of repurcussions. The only reason WE take this issue close to heart is because most, if not all, of us are gamers, and we take it upon ourselves to study the issues because it would affect US- you can't expect a person who has never touched a game in their life to look at the issue the same way.

Just because he's saying what everybody here is thinking doesn't make himany less right.

Re: Legal Expert Says California's Supreme Court Bid is Likely

Exactly. Just because he's preaching to the converted here, doesn't mean he is in general.

Re: Legal Expert Says California's Supreme Court Bid is ...

SCOTUS is about as likely to grant cert in this case as it was likely to grant it in JT's.

1) One of the reasons SCOTUS often grants cert is to resolve splits between the various circuits because federal law is supposed to be uniform.  Every federal court that's addressed the issue, however, has found these sort of restrictions unconstitutional.  And since existing federal law on the issue is already uniform, there's no need for an even more authoritative statement affirming it.

2) Short of throwing a giant monkeywrench into First Amendment jurisprudence by expanding the already narrow and reasonably well-defined obscenity exception, the only real reason I could see SCOTUS granting cert would be CA's argument that the 9th Circuit's opinion conflicts with Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (1994).  (See Pet. for Cert. 11-15)  But even a cursory reading of Turner clearly shows that CA doesn't know what it's talking about. 

Basically, CA's cert petition argues that Turner requires courts to defer to the legislature's judgment, when supported by the record, about whether the restriction will help reduce the anticipated harms; therefore, the 9th Circuit should have defered to CA's judgment, supported by the aggression studies, that restricting minors' access to violent videogames will help reduce the anticipated harms to minors.  The insurmountable flaw in this argument, however, is that Turner was applying intermediate scrutiny to a content-neutral law that required cable companies to carry local channels, 512 U.S. at 662, not strict scrutiny to a law that explicitly restricts speech based on content.  The difference is huge.  It's like changing the burden of proof in a criminal trial from "beyond a reasonable doubt" to "yeah, he probably did it."

As long as the law clerks on cert-pool duty actually read Turner, I can't see granting cert on that front either.

Re: Legal Expert Says California's Supreme Court Bid is ...

You raise a valid point which I doubt is of common knowledge: in most all cases, the Court's law clerks have more to do with a grant or denial of cert than the nine Justices do.  I suspect there's a common misconception that the Justices actually read more than 1% of the Petitions and the case law cited therein before casting their votes in Conference and that they're not relying on a one-page bench memorandum which some law clerk drafted. 

Re: Legal Expert Says California's Supreme Court Bid is Likely

Everyone already knows this Capt. Obviouse.

http://www.magicinkgaming.com/

Re: Legal Expert Says California's Supreme Court Bid is Likely

I'm glad we have these experts to tell us what we already knew.

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I LIKE the fence. I get 2 groups to laugh at then.

-------------------------------------------------- I LIKE the fence. I get 2 groups to laugh at then.

Re: Legal Expert Says California's Supreme Court Bid is ...

Not particularly--it would have no precedential value at all.

Granting cert. and issuing summary disposition is highly unlikely.  The Court will just deny the petition.

Re: Legal Expert Says California's Supreme Court Bid is ...

Why would the Supreme Court's summary upholding of a Circuit court's opinion not increase the precedential value of the lower court's opinion?

Re: Legal Expert Says California's Supreme Court Bid is ...

More to the point, do we really NEED any more precedent? How many identical cases have gone through the courts so far again, with 0 victories for the states?
 

Yes, it would be an awesome victory if the Supreme Court upheld the decision instead of just refusing to hear the case, but I hardly think it's necessary at this point.
---
I'm not under the affluence of incohol as some thinkle peep I am. I'm not half as thunk as you might drink. I fool so feelish I don't know who is me, and the drunker I stand here, the longer I get.


---
I'm not under the affluence of incohol as some thinkle peep I am. I'm not half as thunk as you might drink. I fool so feelish I don't know who is me, and the drunker I stand here, the longer I get.

Re: Legal Expert Says California's Supreme Court Bid is ...

A victory for the states, no.

A victory for the politician aiming to look good in front of the "for the children crowd", yes, if a temporary one.

Re: Legal Expert Says California's Supreme Court Bid is ...

I suspect that the proponents would argue that it is precisely because we've had so many identical cases go through the courts so far that some kind of affirmation from the Supremes would be a good thing. That way, maybe there'd be less of those identical cases working their way through the courts. 

Re: Legal Expert Says California's Supreme Court Bid is Likely

Gameslaw posted that he thinks that SCotUS will either deny cert or summarily uphold the 9th Circuit's ruling:

http://www.gameslaw.net/2009/05/20/california-appeals-vsda-v-schwarzenegger-to-scotus/

Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra.

Geaux Saints, Geaux Tigers, Geaux Pelicans. Solidarity for the Saints = No retreat, no surrender. 2013 = Saints' revenge on the NFL. Even through the darkest days, this fire burns always.

Re: Legal Expert Says California's Supreme Court Bid is ...

I'd prefer a summary upholding. That, at least, adds an air of precedence to the whole thing.

Re: Legal Expert Says California's Supreme Court Bid is ...

I can't see the Supremes summarily upholding any opinion which comes out of the Ninth Circuit, if for no other reason than pure spite owing to the fact that the Ninth Circuit has created so much busy-work for the Supremes. Of all the Circuits, the Ninth has been more frequently overruled by the Supremes than any other Circuit.

Re: Legal Expert Says California's Supreme Court Bid is ...

Agreed.

If I remember correctly, Indianapolis had appealed the 7th Circuit's ruling to SCotUS, but SCotUS denied cert without comment, like they did with Thompson's case earlier this year.

Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra.

Geaux Saints, Geaux Tigers, Geaux Pelicans. Solidarity for the Saints = No retreat, no surrender. 2013 = Saints' revenge on the NFL. Even through the darkest days, this fire burns always.

Re: Legal Expert Says California's Supreme Court Bid is ...

If I predict that the Sun will rise in the East tomorrow morning, does that qualify me as an expert in astronomy?

If you really wanna impress me, predict the Super 6 Lotto numbers.

Re: Legal Expert Says California's Supreme Court Bid is ...

If he could predict lotto numbers he probably wouldn't be writing for newspapers.

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Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it's over they have the same positions they started in.

---------------------------------------------------- Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it's over they have the same positions they started in.

Re: Legal Expert Says California's Supreme Court Bid is Likely

I think I speak for most when I say...

No shit Sherlock!!!

 

All this shielding and rubber padding is going to further wussify the country.

 
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MaskedPixelantehttp://m.tickld.com/x/something-you-never-realized-about-guardians-of-the-galaxy Right in the feels.08/29/2014 - 6:56pm
AvalongodAgain I think we're conflating the issue of whether Sarkeesian's claims are beyond critique (no they're not) and whether its ever appropriate to use sexist language, let alone physical threats on a woman to intimidate her (no it isn't)08/29/2014 - 5:04pm
prh99Trolling her or trying to assail her integrity just draws more attention (Streisand effect?). Which is really not what the trolls want, so the only way to win (if there is a win to be had) is not to play/troll.08/29/2014 - 5:02pm
prh99Who cares, just don't watch the damn videos if you don't like her. Personally, I don't care as far as she is concerned as long there are interesting games to be played.08/29/2014 - 4:34pm
Andrew EisenZip - And yet, you can't cite a single, solitary example. (And no one said you hated anyone. Along those lines, no one claimed Sarkeesian was perfect either.)08/29/2014 - 3:51pm
Andrew EisenSaint's Row: Gat Out of Hell was just announced for PC, PS3, PS4, Xbox 360 and Xbox One making it the 150th game For Everything But Wii U! Congratulations Deep Silver!08/29/2014 - 3:49pm
ZippyDSMleeI do not hate them jsut think its mostly hyperlobe.08/29/2014 - 3:40pm
Andrew EisenSleaker - I'd say that's likely. From my experience, most who have a problem with Sarkeesian's videos either want to hate them in the first place (for whatever reason) or honestly misunderstand what they're about and what they're saying.08/29/2014 - 3:16pm
james_fudgeWe appreciate your support :)08/29/2014 - 2:55pm
TechnogeekIt gives me hope that maybe, just maybe, the gaming community is not statistically indistinguishable from consisting entirely of people that your average Xbox Live caricature would look at and go "maybe you should tone it down a little bit".08/29/2014 - 2:49pm
TechnogeekI just want to say that while I've disagreed with the staff of this site on several occasions, it's still good to see that they're not automatically dismissing Anita's videos as a "misandrist scam" or whatever the preferred dismissive term is these days.08/29/2014 - 2:49pm
E. Zachary KnightZippy, So you can't find even one?08/29/2014 - 1:04pm
ZippyDSMleeAndrew Eisen:Right because shes prefect and never exaggerates... *rolls eyes*08/29/2014 - 12:53pm
SleakerAnd honestly, nearly all of the games she references, or images she depicts I've always cringed at and wondered why they were included in games to begin with, from pinups through explicit sexual depictions or direct abuse. I think it's cheap storytelling.08/29/2014 - 12:35pm
Sleaker@AE - aren't most people fundamentally misunderstanding her at this point? haha.. On a related note I think a lot of the backlash is coming from males that think she is telling them their 'Generic Male Fantasy' is bad and wrong.08/29/2014 - 12:33pm
Andrew EisenAnd no, I don't think the female community would be upset over the performance of a case study in and of itself. Possibly the mostivations behind such a study, the methodology or conclusions but not the mere idea of a case study.08/29/2014 - 12:29pm
Andrew EisenAmusingly, these videos aren't saying you can't/shouldn't use tropes or that sexual representations are inherently problematic so those are very silly things to have a problem with and indicate a fundamental misunderstanding of the series.08/29/2014 - 12:29pm
SleakerDo you think the female community would get extremely angry over a male doing a case study on the negative impact of sex-novels and their unrealistic depiction of males and how widespread they are in american culture?08/29/2014 - 12:25pm
SleakerThe other thing that people might find problematic is that they see no problem with sexual representations of females (or males) in games. And realistically, why is there anything wrong with sexual representations in fiction?08/29/2014 - 12:24pm
SleakerTo even discuss or bring up these issues at a cultural level to begin with. Going straight for games to many probably feels like a huge overstepping given that it's interactive story in many cases, and when you're telling a story why can't you use tropes.08/29/2014 - 12:21pm
 

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