Lead Counsel In SCOTUS Violent Games Case Lays Out Arguments

October 7, 2010 -

The lead counsel for the video game industry in the upcoming Supreme Court fight against California’s proposed violent video game restrictions outlined the problems with the state’s legal arguments in a recent public appearance.

Speaking at an intellectual property forum at Chicago-Kent University last week, Jenner and Block LLP Partner Paul M. Smith said that no matter how a state defines "extreme" violence in such laws, they will run into constitutional problems with vagueness.

"I've litigated nine cases in a row where states have tried to define the category nine different ways – and they always lose when they make this case because violence is considered a perfectly appropriate and normal part of what we give our kids to see starting from a very young age," he said.

"Star Wars, Lord of the Rings, Harry Potter, there's lots and lots of violence in all of those things," he continued. "You have to figure out a way to use the English language to describe some subset of violence which is different from that. Even though people are being murdered and beheaded all the time in Lord of the Rings, you don’t want to make it a crime to sell a DVD of Lord of the Rings to a 16-year-old child."

To let California’s law stand, the high court would pretty much have to carve out a new exception to the First Amendment for minors’ exposure to violent content, as it did for sexual content in 1968’s Ginsberg v. New York decision. But Smith pointed out that the current court has been loathe to create new First Amendment exceptions in the recent past.

"This is something they pretty much rejected a week before they took this case, in the Stevens case, which was the animal cruelty videos case, where the court ruled against creating new exceptions," he said. "I guess what the real question in this case is, regarding kids, do we carve out separate exceptions for them and not for anybody else?"

In the absence of some new, court-defined exception to the First Amendment, Smith said the state would have real trouble meeting the strict scrutiny generally required for any restriction on free speech.

"They barely make an effort to satisfy strict scrutiny," he said. "...They’d have to show that there’s enormous harm prevented by this law outside the existing rating system, that there's no less restrictive way to do it, that there's no overbroad effects, and that’s an extremely difficult test to meet," Smith said.

As far as the "enormous harm," Smith said the state has utterly failed to show compelling evidence that violent games cause any significant problems for minors’ development.

"There is a group of psychologists out there who have made their careers trying to prove that there’s something wrong with video games, but their studies ... find these tiny little effects of maybe three percent more likely that you would be an aggressive school kid with violent video games," he said.

"The other things is, their social scientists don't show a bit of evidence that violent video games are any worse than television, or movies, or anything else that you can experience," he continued. "The notion is that playing the games makes it more harmful or engaged in a different way, but even taking the evidence they’ve marshaled, they just don't make that claim."

And that lack of a distinction means that any decision against violent games could easily spread to other media, Smith warned. "It's going to be extended to movies, to the internet, to television, all of which are out there with no limit at all on what they can contain. So that is something that would be an extremely bold, revolutionary move by the court," he said.

With federal and state courts unanimously rejecting similar violent game laws in eight other states and two cities, some might be worried that the Supreme Court could only be interested in hearing this case so it can overturn this uniform legal opinion. But Smith said the high court’s decision doesn’t necessarily bode well or ill for the industry.

"I think there are examples where the court take cases where there’s no conflict about 30 percent of the time," Smith said. "One possible explanation is that they’ve seen nine cases in a row in four circuits and they just disagree with all of that. The second explanation is, as the cases have come up through the circuit court, they realized there’s an enormous amount of conflict between federal judges and state policy makers and that they want to put this issue to rest."

While the industry included two to three hours of gameplay footage showing the artistic expression of some violent games with their briefs, Smith laughingly wondered in the Supreme Court justices might need some further education on how video games actually work.

"This happened back in the Reno case in the mid-’90s that I was involved in," he said. "This was a first amendment case in 1997, and it was essentially true that most Supreme Court justices hadn’t gone on the Internet to see what a web site looked like. So we had to get a monitor hooked up to a computer in the library set up and connected to the Internet to explain to the justices what the Internet was. So I wouldn’t at all be surprised if there was an Xbox in there and we had to show the justices of the Supreme Court an example of a game."

- Kyle Orland

Kyle Orland has written about games professionally for over a decade. For more information about Kyle's work, visit kyleorland.com.


Comments

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

(1) Even if the Justices aren't really familiar with video games, it's likely that some of their law clerks are.  

Each Justice has four clerks, and nearly all of the clerks graduated from law school within the last three years.  This means that most of the 36 clerks are probably 26-30, growing up in an age of video games.  And as a former law clerk myself (state court of appeals, not SCOTUS), I would be very surprised if there wasn't at least a gamer or two in the bunch.

(2) In light of the decision last term in United States v. Stevens, 130 S. Ct. 1577 (2010), I would be shocked to see the Court carve out a new exception based on violence.  In Stevens, the Court struck down a federal statute prohibiting the sale of video depictions of animal cruelty.  Given that legislatures keep enacting these idiotic video-game statutes despite unanimous nationwide caselaw striking them down as unconstitutional, the Court probably granted cert here to lay the issue to rest.  As Chief Justice Roberts explained:

 

The Government contends that "historical evidence" about the reach of the First Amendment is not "a necessary prerequisite for regulation today," and that categories of speech may be exempted from the First Amendment's protection without any long-settled tradition of subjecting that speech to regulation. Instead, the Government points to Congress's "`legislative judgment that . . . depictions of animals being intentionally tortured and killed [are] of such minimal redeeming value as to render [them] unworthy of First Amendment protection,'" and asks the Court to uphold the ban on the same basis. The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: "Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs." 

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document "prescribing limits, and declaring that those limits may be passed at pleasure."

 

Stevens, 130 S. Ct. at 1585 (citations omitted).  Given the similarity to California's arguments in this case, I'm not overly worried about the outcome.

 

 

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

None if it works for me as books are far more descriptively violent than any computer game could ever be and you don't see people trying to make assinine laws about books. (Other than when they try to burn them.)

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Not today no, but there have been plenty of attempts in earlier decades,.. some have even been succesful for a time.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

I suppose the one main difference between the actual hearing and the test hearing is the fact the Supreme judges have more to consider with regards to the impact of singling out one of their more successful industries and ostracising it. Not that they wouldn't do it, but it would quite possibly lose America that business, since no company is going to be enthusiatic about operating in a country that discriminates against only them, there'd have to be very compelling reason install such a ban, since it would probably result in the US losing out on being the financial base for a very lucrative business.

Such a ruling would probably be great for Canada and Europe, but it wouldn't be good for either the financial or employment situation in the US.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

WIth how reasonable our side is, no doubt the other side will be pandering to fear and using the worst footage from game and saying a majority of games i nthe Industry are exactly like Postal, GTA, maybe the'll also dredge up the infamous 25 to Life, no doubt Manhunt as well, maybe say Bully had a secret cheat to get an AK47

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

If they really have any desire to win this, which it would seem they do, they'd be well-advised not to exaggerate or mislead.

I'm thinking not that they'll try to make it seem that most games are like GTA, but that the ones that are are hazardous to the minds of youth, that's the focal point of their argument, and the law in question.

To win, they'll need to convince the judges that the research done provides enough evidence to show that minors are harmed by such material, and that that is enough to create an exception to the freedom of speech for certain games.

So basically, that's probably what they'll fudge: the results of all the experiments that supposedly demonstrate a causal link between violence in real-life and violent video games. They'll also likely try to gloss over any question over just how reliable those results are, and attempt to focus on the harm demonstrated as being sufficient.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

There was an amicus brief of social scientists that addressed just this issue.  Hopefully the judges will pay attention to it.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

If there's any sense to it as opposed to whatever the opponents bring, I don't see how they can  rightfully ignore it.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Common Sense Media has a video with Postal 2, Manhunt, GTA and 25 to Life footage they will be using in support of this bill.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

...

I retract part my statement below, they will definitely be pandering to fear. Good god...

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

You know - if game makers want to avoid issues like this, all they have to do is introduce a "clean game" feature that drops foul language and innuendo, uses an alternate storyline for various sections (as needed), removes gore on various textures and levels, and reduce death gore.  Basically, a single option to transform a "M"-rated game into a "T" and possibly a "E10+" rated game.  Such an option in every game would cause there to be no room to stand on in any court of law.  Besides, this whole thing is about parenting and parental responsibility, NOT violence in video games - parenting is something that NO government has ANY business getting involved in.

The sad part is that those in the Justice system don't deem it necessary to learn about technology.  Technology pervades every facet of our lives.  It is impossible to make reasonable and sound judgment if you don't understand what you are judging.  But I'm preaching to the choir.

- Left4Dead

Why are zombies always eating brains? I want to see zombies that eat toes for a living. Undead-related pun intended.

- Left4Dead Why are zombies always eating brains? I want to see zombies that eat toes for a living. Undead-related pun intended.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Or y'know parents could just be f*cking PARENTS. honestly the game industry has given them all the tools... the ESRB for basic game ratings, the internet can be used to research games before, and the consoles themselves have parental controls... there really is no excuse for parents to allow their kids to play the kinds of games they don't want them to play

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Frankly I think ratings and parental locks are themselves abdications of parental responsibility.  I'm not going to let some bunch of people I've never met tell me what is or isn't appropriate for my children, and if I need to set up some kind of technological lockout to keep my kids from playing games I don't want them to, then that means I don't trust my kids -- and if I don't trust my kids, I've done something wrong.

Disclaimer: I don't actually HAVE kids.  But that's how I was raised.  I didn't play Doom when I was 10 -- not because I didn't have the opportunity but because I, as a 10-year-old, didn't think it was appropriate for me to be playing yet.

All that said, ratings and parental locks are a necessary evil, precisely because they give the industry a chance to show that they're trying to keep adult games out of the hands of children.  I'd love to see a world where parents simply exercised sound judgement and ratings were unnecessary, but I'm not going to hold my breath.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Part of the problem is that many kids, including myself, aren't like that. I remember the first time I saw the first Mortal Kombat, at an arcade, and I felt like a whole new world had been revealed to me by fate. I couldn't wait to play it, though it would take some time, and some cunning on my part. Granted, in recent years I haven't touched the more graphically violent games that've been made since, though that's mainly because I've developed into far more of a fantasy nerd. But that just goes to show that my inclinations towards playing games like Mortal Kombat and seeing movies like the Alien series, were far from abnormal or unhealthy.

And of course, none of that means anything to people like Yee. They'd rather single games out than just simply face the fact that kids have sought after adult activities since the dawn of time, and that it isn't the end of the world, and it especially doesn't excuse or give legitimate reason for singling out any medium of entertainment.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

I know some games allow you to tone down gore, and in many cases it's a trivial thing to implement.  But I don't think the rating system is prepared to deal with such a system, and anyway it would rely on parents who are already game-savvy enough that they don't need the rating system as a crutch.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

They could put on the cover of the game in big font *Low violence option availible*.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

But the game industry doesn't have to make clean versions of games because they already don't sell M rated games to minors in major retailers.  It is also easy enough for the parents to go on a console and set up parental ratings and exclude all M rated games from being played on that console.  If the Court applies rational basis, it puts the burden on the government to show that these alternatives are not effective at protecting children from the violent games.  

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

If the SCOTUS sees violent games as all equal to Postal and says this law is ok. Then stores won't sell violent games/consoles will stop supporting them, and clean versions will HAVE to be made.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Blah blah conjecture blah blah Chicken Little blah.

The California law is bad.  It needs to be thrown out.

But it's not going to stop Rockstar from making more M-rated GTA games or Target from stocking them in the same locked display cases where they put everything else.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

One of these days, Chicken Little's gonna be right. That's why I keep one eye to the sky.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

I disagree. I think many publishers and developers are going to forget all about churning out anything above a "Teen" if the state wins this one. And that's to say nothing of all the frivolous lawsuits that will be made possible to actually win from the precedent set.

The whole reason the Big 3 and major retailers won't support/carry AO games is fear, and that's without any government regulation. You can't tell me you think that fear won't be amplified if SCOTUS rules in the state's favor.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

I think you're the one who needs to worry about amplified fear.

Target and Wal-Mart already keep games locked up and card people who look too young to buy M-rated titles -- in fact, it's harder for someone under 17 to buy an M-rated game than an R-rated movie.  How would the California law change their corporate policy one iota?

Yeah, there's a stigma attached to AO games such that the console manufacturers won't allow them and the retailers won't sell them.  But there's also a limited market for them.  You think Rockstar's suddenly going to become intimidated by controversy and the threat of lawsuits, because these aren't things they've ever had to deal with in the past?  GTA makes money hand-over-fist; that's the bottom line.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

How would the California law change their corporate policy one iota?

It wouldn't. But when/if some kid under 17 manages to purchase an M-rated game, now someone's going to jail instead of just getting fired. Now politicans and advocacy groups will really have something to sink their teeth into. Think about it, the state's not satisfied with the industry's success at regulating itself as it is, even though the film and record industries do a much worse job, what are they going to do when they find that even such a law as this isn't putting a halt to minors purchasing M-rated games?

You think Rockstar's suddenly going to become intimidated by controversy and the threat of lawsuits, because these aren't things they've ever had to deal with in the past?

Thus far the law's been on their side. That can easily change if the state of California has their way this time.

Think about it, CA's argument is based on damage done to children by violent video games right? Remember that old lady who wanted millions because she bought GTA: Vice City (or was it San Andreas? anyway, it doesn't really matter) for her grandson? With this law in place, and the precedent set that games can in fact be harmful under the eyes of the law, that same old bag can WIN, and so can anyone else who feels like trying to make some quick cash at the expense of others.

That will certainly generate fear, if not for Rockstar, then definitely for many other developers and publishers.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Not to mention it will be abused. Groups liek the Eagle Forum and people like THompson are going to being suing right away, or setting up watches in Walmart and other retailers just to catch people.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

That's exactly the kind of shit I'm worried about, even with the law not being quite as bad as I'd thought.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

True, though I expect that kind of stuff to happen even if it gets thrown out.

JT's disbarred, of course, but there are plenty of other people who can bring suits.  And they will.  Even with a SCOTUS decision striking the law down, we won't see the last of this -- hell, there are still suits against comic shop owners, and the worst of the comic-book controversy is decades behind us.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

JT's disbarred, of course, but there are plenty of other people who can bring suits.  And they will.  Even with a SCOTUS decision striking the law down, we won't see the last of this

Oh believe me I know. There will be more battles to be won.

hell, there are still suits against comic shop owners

Really? What the hell?

Hmph. If that doesn't demonstrate ridiculousness, I don't know what does...

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Sure.  A comic shop owner named Gordon Lee was sued in 2004, for allegedly giving a free copy of Alternative Comics #2 to a minor.  One of the stories in the collection was a historically accurate story about Picasso, which included nonsexual nudity.  The case was finally dismissed in 2008, after multiple mistrials and delays (and the plaintiffs repeatedly changing their story); if he hadn't had the Comic Book Legal Defense fund to help him, he wouldn't have been able to hold out that long.

There was another story, more recent, about a comic shop owner being sued for selling lolicon (to adults).  He copped a plea rather than fight it, which is disappointing but understandable; he didn't want the kind of prolonged fight that Lee had.  I can't find details on the story at the moment, and I'd just as soon not plug "lolicon" into Google.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

*sughs* It's a damn shame that is. I guess some of us just refuse to progress...

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

But the thing about comic books is that it was never settled.

The industry formed their own Comics Code to escape litigation (a code that has rightfully now been pretty much completely disregarded).  At least with video games there will be a final word.

------- Morality has always been in decline. As you get older, you notice it. When you were younger, you enjoyed it.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

True, but the prevailing attitude about comics HAS changed in the years since -- it's just that there are some holdouts who cling to an old-fashioned understanding of what comic books are.  And, SCOTUS victory or no, there will always be holdouts like that.


Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

"But when/if some kid under 17 manages to purchase an M-rated game, now someone's going to jail instead of just getting fired."

Jail, huh?  So what you're telling me is you haven't actually READ the law.  Here, let me help you.

"Any person who violates any provision of this title shall be liable in an amount of up to one thousand dollars ($1,000), or a lesser amount as determined by the court. However, this liability shall not apply to any person who violates those provisions if he or she is employed solely in the capacity of a salesclerk or other, similar position and he or she does not have an ownership interest in the business in which the violation occurred and is not employed as a manager in that business."

In other words, the retailer -- not the clerk -- is liable for $1000.  Nobody's going to jail.  But yeah, somebody's probably getting fired.

"Thus far the law's been on their side. That can easily change if the state of California has their way this time."

The California law itself doesn't affect publishers directly (aside from having to slap that "18" label on games).  Yes, it affects retailers, and you're arguing that retailers won't stock those games and therefore it will reduce demand and they won't get made -- but I've already told you what I think of that argument.  Retailers are making plenty of money selling M-rated games, an occasional $1000 fine isn't going to be enough to offset that gain (and isn't going to affect the publisher), and the law requires absolutely no change in their corporate policies.

"Remember that old lady who wanted millions because she bought GTA: Vice City (or was it San Andreas? anyway, it doesn't really matter) for her grandson? With this law in place, and the precedent set that games can in fact be harmful under the eyes of the law, that same old bag can WIN, and so can anyone else who feels like trying to make some quick cash at the expense of others."

Quoting the law again:

"This section shall not apply if the violent video game is sold or rented to a minor by the minor's parent, grandparent, aunt, uncle, or legal guardian."

Even given its implication that violent games can harm minors, it has an explicit statement that parents are responsible for the things they buy for their children.

Again, I'm not arguing on behalf of the law at all -- I don't believe in curtailing free speech and I think it would set an absolutely horrible precedent.  But...well, to be frank, it sounds to me like you don't actually know what it says.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

You're right. I guess the laws that've been coming around over the past few years have kind of run together on me.

Good thing I'm not arguing for the industry eh? :P Although if I was, I would've put more effort into making sure what I remembered about this law was accurate. I should've done that anyways, but, oh well.

I don't think I'm paranoid, just perhaps a little too passionate for my own good. And forgetful. Definitely forgetful.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

America would have the new lowest rating of T for 13 and over. Australia would be able to get away with more in games with thier M15 rating.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

All the more reason to win this one, and any others that come after.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

And I will lose my freakin' mind. :P

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Excellent argument and well-presented.  I'm confident on this one.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

This makes me wonder what would happen if they revisited Ginsberg v. New York today. At the time simply make a persuasive speech was enough..... and the standards for scientific studies was.. how shall we say... much looser.

This is one of the problems with having such a precedent based system... today the court can look at that case and say 'see, it was already decided' even though stacked against modern evidence the case probably would have crumbled.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Ginsberg didn't rely on scientific evidence. No need to do so. Rational basis test. Under the rational basis test, government usually gets an E-Z pass on its claim to be protecting children from "harm."

Most of these First Amendement cases are either won or lost in the decision as to the appropriate level of scrutiny. The Court picks strict, the law goes down. They pick rational, the law stays up. The analysis following that initial choice is usually pro forma.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Hrm.  I thought you could not apply Rational Basis review to first ammendment cases.   Poking a few legal dictonaries, it looks like it is only (generally) applied to the 5th and 14th ammendment.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Ginsberg applied rational basis because Obscenity was involved and it was unprotected speech.  So the government didn't have to show harm, only that it was rational to believe that a harm is created.  Then all the Court had to do was find that it was debatable whether there was any harm to minors by porn and the law was upheld.  

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

I've said it once before but I'll patiently say it again: the Court in Ginsberg decided that the case presented no issue involving obscenity (see quote from majority opinion below).

"Appellant's primary attack upon [New York's statute] is leveled at the power of the State to adapt th[e] Memoirs formulation to define the material's obscenity on the basis of its appeal to minors, and thus exclude material so defined from the area of protected expression. He makes no argument that the magazines are not "harmful to minors" within the definition of [the statute]. Thus "[n]o issue is presented . . . concerning the obscenity of the material involved." Roth, supra, at 481, n. 8. (emphasis supplied)"

It is because the obscenity of the material is not at issue that the Court then goes on to apply the rational basis test and not the Memoirs obscenity test. 

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

That was therefore a mistake on the part of Ginsberg not to contest whether the material in question was obscene (it is also weird that the court only ever referred to "girlie magazines" without naming specific titles-I'm guessing it was something like Playboy?). It was a blanket assertion that minors had the same First Amendment rights as adults, which the Court did not buy, instead of trying to focus on the material in question-which the dissent picked up on and called the majority out for.

There have been a lot of cases post-Ginsberg that cut against it. Either the same day Ginsberg was decided, or a few days later, the Court decided Interstate Circuit, Inc. v. City of Dallas, struck down a law that prohibited minors from viewing films with certain sexual or violent depictions (the film at issue in this case had sexual material). In an 8-1 decision led by Marshall, the Court struck this law down, and argued that self-regulation by the industry would be a better option (and the MPAA ratings were created the following year).

Also, after Ginsberg, we had Miller, which provided the definitive obscenity definitions, which may have been different from Memoirs (a case I am not familiar with), and specifically limiting obscenity to sex, and Erznoznik, which reiterated that even though the rights of minors are not the same as adults, they are entitled to "a significant amount of First Amendment protection," and refused to uphold an ordinance prohibiting drive-in theaters from showing movies depicting nudity.

While I don't see Ginsberg being outright overturned like Plessy or Bowers, I do think its scope can be significantly narrowed.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Be all that as it may, I've been saying, and as Mr. Smith seemingly concurs, Ginsberg provides more than a little wiggle room for a finding favorable to California.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Not true. For example, if it's a "time, place, and manner" restriction of speech, it qualifies for rational basis. Indeed, pretty much any type of speech restriction that isn't content-based -- or, conversely, is content-neutral -- qualifies for something other than strict scrutiny.

There's also commercial speech (e.g., advertising) which is, I believe, subject to the Central Hudson test. That's not a strict scrutiny test either.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

TPM and commercial speech aren't strict scrutiny, and they aren't rational basis either. They are intermediate scrutiny, which is "legitimately related to an important government interest." It's a lesser threshold than strict scrutiny, but higher than rational basis. It is, as the name suggests, in the middle of the two. For TPM, there must be reasonable alternative means of communication, and commercial speech has a 5-part test that it must satisfy, that I can't remember off the top of my head.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

I stand corrected. TMP is held to intermediate, not rational, scrutiny. The point remains, however, that a First Amendment analysis is not limited to strict scrutiny but, rather, could involve any one of various levels of scrutiny.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

However, California's piece of trash law is anything but content-neutral, therefore falling under strict scrutiny.

Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra. Hell will stay frozen over for quite a while since the Saints won the Super Bowl.

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: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Ah.  I had not known about those applications.  Good to know ^_^.  Depressing, but good to know.

I guess that would put Holder v. Humanitarian Law Project in a different light since that was recipient based restriction...

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Glad to see we have such an intelligent, sensible person representing us in this matter, because this is something we MUST win. This whole anti-games thing needs to stop before it gets even more out of hand that is already has.

I only hope that when the decision has come, and I hold no doubt that it will be in our favor, that helps put an end to this bullshit once and for all. It's all political, everyone on the other side has an agenda, and it's not even to protect anyone or uphold any values. Enough is enough.

 
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Andrew EisenAs it happens, Chinatown Wars is the only GTA game I've played.04/19/2014 - 10:43am
Papa MidnightWith GTA5 (to date) failing to even provide indication of a PC release, I'm realising that this might be the first GTA game that I have not played (outside of Chinatown Wars) since the series inception.04/19/2014 - 8:14am
IanCSo im guessing a bunch of edutainment games, which a lot of people elsewhere are going gaga over, dot count as classics? Okay. If you don't mind me, i have a sudden urge to play Putt Putt....04/19/2014 - 6:15am
MaskedPixelantehttp://www.joystiq.com/2014/04/18/playstation-99-cent-sale-discounts-tokyo-jungle-super-stardust/ Weekend long PSN flash sale. So much stuff is 99 cents for the rest of the weekend.04/18/2014 - 5:59pm
Adam802http://www.polygon.com/2014/4/18/5627928/newtown-video-game-addiction-forum04/18/2014 - 4:14pm
Matthew Wilsonit is a video talking about why certain games/products/consoles do well, and others do not. he back it up with solid research.04/18/2014 - 3:56pm
Andrew EisenI'm not keen on blind links. What is it?04/18/2014 - 3:45pm
Matthew Wilsonthis is worth a whatch https://www.youtube.com/watch?v=MyXcr6sDRtw&list=PL35FE5C4B157509C904/18/2014 - 3:43pm
MaskedPixelanteNumber 3: Night Dive was brought to the attention of the public by a massive game recovery, and yet most of their released catalogue consists of games that other people did the hard work of getting re-released.04/17/2014 - 8:46pm
MaskedPixelanteNumber 2: If Humongous Entertainment wanted their stuff on Steam, why didn't they talk to their parent company, which does have a number of games published on Steam?04/17/2014 - 8:45pm
MaskedPixelanteNumber 1: When Night Dive spent the better part of a year teasing the return of true classics, having their big content dump be edutainment is kind of a kick in the stomach.04/17/2014 - 8:44pm
Matthew Wilsonhttp://www.giantbomb.com/articles/jeff-gerstmann-heads-to-new-york-takes-questions/1100-4900/ He talks about the future games press and the games industry. It is worth your time even though it is a bit long, and stay for the QA. There are some good QA04/17/2014 - 5:28pm
IanCErm so they shouldn't sell edutainment at all? Why?04/17/2014 - 4:42pm
MaskedPixelanteNot that linkable, go onto Steam and there's stuff like Pajama Sam on the front-page, courtesy of Night Dive.04/17/2014 - 4:13pm
Andrew EisenOkay, again, please, please, PLEASE get in a habit of linking to whatever you're talking about.04/17/2014 - 4:05pm
MaskedPixelanteAnother round of Night Dive teasing and promising turns out to be stupid edutainment games. Thanks for wasting all our time, guys. See you never.04/17/2014 - 3:44pm
Matthew WilsonAgain the consequences were not only foreseeable, but very likely. anyone who understood supply demand curvs knew that was going to happen. SF has been a econ/trade hub for the last hundred years.04/17/2014 - 2:45pm
Andrew EisenMixedPixelante - Would you like to expand on that?04/17/2014 - 2:43pm
MaskedPixelanteWell, I am officially done with Night Dive Studios. Unless they can bring something worthwhile back, I'm never buying another game from them.04/17/2014 - 2:29pm
 

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