In an opinion piece appearing in the Los Angeles Times, Pepperdine University constitutional law professor Barry McDonald argues that the Supreme Court should use Schwarzenegger vs. EMA to “adjust its severe approach to content-based regulations of speech.”
McDonald opined that the California law in question “puts teeth” in the attempt to stop kids from buying violent games, and he notes that the plaintiffs in the case “are not minors who are eager to receive the ‘speech’ in question,” but game manufacturers themselves.
Despite the fact that it seems the 1st Amendment is being used to protect the manufacturers' purses rather than their ideas, lower courts across the country have uniformly invalidated such video-game restrictions on free-speech grounds.
These lower courts, according to McDonald, were forced to apply a “a completely unsatisfying set of 1st Amendment rules that the modern Supreme Court has developed.” Rules that make it “almost impossible for state and local governments to address legitimate harms posed by certain types of expression.”
McDonald referenced a 1990-era opinion from former Justice Sandra Day O’Connor, in which she wrote that the Court’s “severe approach to content-based regulations of speech” led to regulations being rejected, even though “common sense may suggest that they are entirely reasonable.”
The Professor stated:
The court should heed O'Connor's wishes now and use the video-game case to engage in such a confrontation. It should rethink its approach, allowing state and local governments more latitude to make reasoned determinations that certain types of speech pose a heightened risk of harm.
Without a rethinking of its fundamental approach to such laws, the Supreme Court's extreme 1st Amendment rules will continue to breed extreme speech that can cause harm, and our representatives will remain powerless to address it.
In case you missed it, the New York Times, in its own editorial published last week, argued against the California law and opposing legislation that would narrow the First Amendment.