In a ruling that could have a trickle down effect on online videogame dealers, the Ohio Supreme Court has issued its opinion on what constitutes the distribution of material that is harmful to juveniles, regarding the Internet as a medium.

The American Booksellers Foundation for Free Expression originally levied the suit (Am. Booksellers Found. for Free Expression v. Strickland)  in Ohio, asking a court to overturn Ohio code 2907.31, which broadly deals with the dissemination of matter harmful to juveniles. A federal district court originally concluded that the code was too broad and a violation of the First Amendment, and suggested shelving enforcement of the law. That decision was appealed to a 6th Circuit Court.

The 6th Circuit Court eventually asked Ohio’s Supreme Court for an answer on two specific legal questions swirling around the case:  A) should the scope of the code be applied to instant messaging, person-to-person emails and private chat rooms and B) should material posted on general websites and chat rooms be exempt from liability?

The Ohio Supreme Court answered each question in the affirmative in a 7-0 vote.

The matter will now be returned to the 6th Circuit Court who will determine the codes constitutionality.

The San Francisco Examiner noted the importance of the case for a variety of online sellers:

The group had argued the law could be applied broadly to online material and erode the constitutional free speech rights of online booksellers, newspaper publishers and video game dealers. Technology, they say, can't always keep the harmful information from children.

The Entertainment Software Association (ESA) has won a preliminary injunction in its lawsuit against the Chicago Transit Authority (CTA) over the banning of advertisements for adult-rated videogames.

An ordinance (008-147) that took effect in January of 2009 prohibited any advertisement that “markets or identifies a video or computer game rated ‘Mature 17+’ (M) or ‘Adults Only 18+’ (AO).”  The ESA argued that such a ban unconstitutionally “restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.”

The United States District Court for the Northern District of Illinois granted the ESA an injunction, with Judge Rebecca R. Pallmeyer stating:

…the advertisements the CTA wishes to ban promote expression that has constitutional value and implicates core First Amendment concerns.

The ESA further challenged that the CTA ordinance is redundant since videogame-related marketing is already regulated by the Entertainment Software Rating Board’s (ESRB) Advertising Review Council.

ESA President Michael Gallagher was obviously pleased:

This ruling is a win for Chicago's citizens, the video game industry and, above all, the First Amendment. It is our hope that the CTA sees the futility of pursuing this case further. To do so will waste taxpayer money and government resources.

The Federal Communications Commission (FCC) has released a Notice of Inquiry (NOI) seeking feedback and responses to the subject of the affect of electronic media on children and whether or not the Commission should have more power to wield authority.

Released on October 23, Empowering Parents and Protecting Children in an Evolving Media Landscape presents some of the influence (both pro and con) emerging media has on youngsters, before asking for additional data on these subjects. Specifically the FCC is seeking “information on the extent to which children are using electronic media today, the benefits and risks these technologies bring for children, and the ways in which parents, teachers, and children can help reap the benefits while minimizing the risks.”

The FCC also is asking commenters to “to discuss whether the Commission has the statutory authority to take any proposed actions and whether those actions would be consistent with the First Amendment.”

FCC Chairman Julius Genachowski included a statement with the NOI in which he noted that “twenty years ago, parents worried about one or two TV sets in the house,” while today, media choices are far more widespread for children, including videogames, which “have become a prevalent entertainment source in millions of homes and a daily reality for millions of kids.”

Genachowski continued:

This Notice of Inquiry recognizes the importance of undertaking a comprehensive approach to assessing how children can best be served in the digital media landscape. The vital role of government in this media environment is therefore to empower parents and protect children, while honoring and abiding by the First Amendment.

Thanks² Sean

Joystiq’s latest Law of the Game column breaks down the theories of a research paper released last week by a Michigan State University College of Law Professor.

The paper’s author, Renee Newman Knake, argued that videogame legislation advocates could take cues from the environmental movement and employ “ecogenerism” in their bid to improve the chances of such legislation being passed in the future.

Mark Methenitis, the author of the Joystiq piece, begins by noting that Knake’s premise “starts from the basic flawed premise that we have ‘proven’ a ‘causal’ link between media violence, specifically video game violence, and real world violence.”

Methenitis then picks apart Knake’s focus on “ecogenerism,” or controlling “pollutants” (videogames in this case) in a child’s environment. He offers multiple responses to Knake, including the following analogy:

A multi-vitamin for children, in appropriate doses, has many positive and no negative side effects, except in rare cases. However, an overdoes of vitamins can be fatal. Parents who bring home vitamins don't put them out in a dish on the floor and let the kids go nuts with them; they keep them in a childproof container and give them one a day.

Methenitis concludes that the views of this research paper are “at best, a rose by any other name,” offering:

The courts have frequently said that the activity of the bedroom is beyond the scope of government control, and I, for one, think the activity of the living room should be as well.

The office of California State Senator Leland Yee (D-San Francisco) let us know that the politician has been honored by the First Amendment Coalition (FAC) with its Beacon Award.

The award recognizes Yee’s “legislation in support of government transparency and the rights of student journalists and their advisers.”

The original author of California’s videogame law, which is still sitting in appeal before the United States Supreme Court, said about the award:

There is little that I take greater pride in than our legislative efforts to increase transparency of government and protect the speech rights of California students.  With the help of the First Amendment Coalition, we have passed landmark open government laws.  Unfortunately, at times, we have also fallen victim to the Governor's veto pen.

Yee was one of four Beacon Award winners. Full details can be viewed here.

A research article penned by a Michigan State University College of Law Professor examines video game related legislation and asks if prompts can be gleaned from the environmental law and ethics movement in order for such legislation to have a better chance of being passed in the future.

From Research Conclusions to Real Change: Understanding the First Amendment’s (Non)Response to Negative Effects of Mass Media on Children by Looking to the Example of Violent Video Game Regulations was written by Renee Newman Knake.

The heart of the matter, writes Knake, is “the disconnect between law and social science,” or the reluctance of U.S. courts to recognize (what she terms) the consequences mass media has on children.

Knake writes:

Environmentalists successfully established a regulatory framework for evaluating empirical science in the face of uncertainty and arguments questions about the validity of research. The movement to protect children from media harm can do so as well.

Knake’s paper relies heavily on the research of Barbara Bennett Woodhouse, who coined the term “ecogenerism,” or someone who thinks about child welfare as well as a wide range of other problems confronting children and society.

Thus, Woodhouse concludes that research “clearly establish[ing] but fall[ing] short of conclusively proving a causal connection between harm to children and exposure to media violence” could be relied upon by legislators in adopting regulations so long as it is rooted in science, not popular opinion.

She concludes:

The law’s continued refusal to recognize mass media and marketing harm to children has left researchers and regulators in a strange position, waiting until science might sufficiently advance to satisfy a court’s causality requirements and in the meantime engaging in a seemingly fruitless exercise of tweaking statutory language in an effort to survive First Amendment strict scrutiny.

The full paper can be downloaded here.

The case of a gamer who sued Sony Computer Entertainment America (SCEA) over being banned from the PlayStation Network has been tossed out of court.

After being banned for “multiple violations” on PSN, the Resistance: Fall of Man player Erik Estavillo had sued SCEA for violating his First Amendment rights (for the PSN ban) and for money he had invested into the PSN Wallet Fund. He sought $55,000 and an injunction that would limit SCEA from banning any players in any form on the network.

Northern District of California District Judge Ronald M Whyte ruled that there was no plausible First Amendment claim for relief stated and dismissed the case.

The Technology & Marketing Law Blog (via Gamasutra) zeroed in on one specific comment of Whyte’s, that “Sony's Network is not similar to a company town.” Blogger Eric Goldman wrote:

…this opinion emphatically rejects a meme that has become pretty popular among virtual world exceptionalists. Some exceptionalists have favored the company town analogy because it enable virtual world customers to reduce an operator's ability to run its business capriciously.

A PDF version of the Order Granting Defendant's Motion To Dismiss is also available on the aforementioned blog.

As noted earlier this week, the Supreme Court was scheduled to look into an appeal of Entertainment Merchants Association v. Schwarzenegger yesterday, September 29.

EMA v. Schwarzenegger was not on the list of Miscellaneous Orders issued this morning by SCOTUS, which could mean that the petition was denied. When considering a petition for certiorari, SCOTUS will deny such appeals without comment, but the official outcome won’t be known for sure until Monday morning, when an Order List is issued from the Court.

The United States Supreme Court is scheduled to address an appeal of a Californian videogame law tomorrow, September 29.

Entertainment Merchants Association v. Schwarzenegger (formerly known as The Video Software Dealers Association (VSDA) v. Schwarzenegger), revolves around a Californian law that banned the sale of certain videogames to anyone under 18 years of age. First signed into law by Schwarzenegger in 2005, the law was rejected again in February of 2009 by the 9th Circuit Court of California, which upheld an earlier 2007 ruling that deemed the law unconstitutional.

Schwarzenegger and California Attorney General Jerry Brown appealed to the Supreme Court in May of this year, marking the first time a case involving the restriction of violent game sales to minors has ever been considered by the top court of the United States.

As part of the proceedings, The Supreme Court will also decide whether to accept the amicus brief filed by California State Senator Leland Yee (D) in July of 2009. In the brief, Lee, who authored the original statute at the center of the whole case, argues why the Supreme Court should approve the state of California’s petition for a full hearing. He was supported in the brief by the California Psychiatric and California Psychological Associations.

The Supreme Court’s decision could take a few days or more. A final decision should be made public by next Monday, October 5.

Update: Just to clarify, The Supreme Court did consider a similar topic when ruling on American Amusement Machine Association et al. v Kendrick et al. in 2001, when it denied the City of Indianapolis' petition for certiorari. That case centered on an attempt by the city to limit the display and operation of currency-based machines deemed harmful to minors.

Video game publishers group ESA has released its annual report for the 2009 fiscal year, which concluded at the end of March.

As noted by Venture Beat,

The ESA fought 43 bills aimed at regulating content or controlling access to video games and none became law... Meanwhile, five states enacted tax incentives for the creation of game development jobs. Another 17 states are considering enacting the incentives.

The group said that it will be hard to get the attention of the federal government and Congress, which is preoccupied with issues such as climate change and healthcare. The ESA wants more done to stop piracy of games...

Sometime this fall, the U.S. Supreme Court is expected to review California's appeal of lower court rulings striking down its 2005 violent video game law as unconstitutional. Yesterday, the video game industry submitted its position to the Court.

In a 41-page brief compiled by attorney Paul Smith of Jenner & Block, the game industry relies heavily on precedents set by a history of failed attempts by state and local governments to impose age-based restrictions on video games. Indeed, the game biz has never lost such a case and Smith has been their successful point man for many years. From the brief:

Despite [California's] efforts to conjure up some argument for review of the Ninth Circuit’s decision, in reality the decision is a routine application of established First Amendment principles to a content-based ban on protected expression.

Petitioners offer no persuasive reason for the Court to review this ruling. There is no split of
[past decisions] on the questions presented. To the contrary, the lower courts are unanimous as to the constitutionality of bans on distribution of violent video games. That is unsurprising...

California was not the first state to try to restrict distribution of video games it considered too violent for minors. Such laws have proved politically popular, but every one has been struck down under the First Amendment...

Smith and his fellow attorney also dig into California's assertion that children should be legally shielded from violent video games as they are from obscenity. California's causation arguments, which attempt to link violent video games to violent behavior, are also taken to task.

DOCUMENT DUMP: Grab a copy of the game industry brief here (41-page PDF)...

As GamePolitics and other news outlets have reported, the ESA is suing the Chicago Transit Authority over the agency's ban on M and AO-rated video ads.

Here are excerpts from the justification section of CTA Ordinace 008-147, the document at the heart of the ESA lawsuit:

WHEREAS... the Chicago Transit Board established advertising guidelines permitting certain advertising in or upon Chicago Transit Authority vehicles and facilities; and

 

WHEREAS, According to an August 2008 Chicago Sun Times article at least 36 Chicago public school students have been killed since September 2007; and

 

WHEREAS, There is a demonstrable correlation between intensely violent video or computer games and violent or aggressive behavior (see "Video Game Violence and Public Policy" by David Walsh, Ph.D. and "The Effects of Violent Video Game Habits on Adolescent Hostility, Aggressive Behaviors, and School Performance" by Gentile, Lynch, Linder and Walsh; and

 

WHEREAS, There is evidence that many of these violent video or computer games are marketed toward children under 17 years of age (see Federal Trade Commission study, September, 2000)...

The 2000 FTC report is, indeed, an indictment of video game industry marketing practices. On the other hand, the industry has made remarkable strides since then in restricting the access of minors to violent games.

In its May, 2008 report, the FTC found an 80% overall compliance rate in retail ratings enforcement, with top performer GameStop achieving a 94% compliance rate. Given that the CTA ordinance was passed in November, 2008, it's unclear why the 2000 data was used.

The full CTA ordinance may be found as "Exhibit 2" in the ESA's lawsuit. Click here for a copy of the 70-page PDF.

A spokeswoman for the Chicago Transit Authority has commented on the federal lawsuit filed against the agency's ban on M-rated video game ads yesterday by the Entertainment Software Association.

Kotaku reports:

Reached for comment... Wanda Taylor, a spokeswoman for the Chicago Transit Authority, told Kotaku that the authority has not yet been served with the suit but that they feels that the ordinance is defensible.

"The CTA does not allow advertising for alcohol or tobacco products and this ordinance is consistent with that long-standing policy," she said...

Taylor pointed out that they have a number of guidelines in place for determining if an advertisement can run on the CTA. The guidelines, she said, require ads to be truthful and not directed at inciting imminent lawless action. The ads cannot be legally obscene, sexually explicit, depict nudity or portray graphic violence nor can they incite lawless illegal action.

As GamePolitics reported yesterday, the Entertainment Software Association has filed suit against the Chicago Transit Authority. The video game publishers' lobbying group hopes to overturn the CTA's ban on ads for M and AO-rated games on its vehicles and facilities.

The Media Coalition, an association that defends the First Amendment rights of producers and consumers of First Amendment protected material, has issued a press release announcing its support for the ESA in the case. Executive Director David Horowitz commented on the situation:

Ex-[Illinois] Governor Blagojevich spent hundreds of thousands of dollars unsuccessfully to defend a law that barred minors from buy or renting similar video games before it was struck down as unconstitutional. The Chicago Transit Authority should repeal this ill-conceived ordinance rather than using scarce resources to fight this in court and get the same result.

The ESA, which represents U.S. video game publishers, is a Media Coalition member as is the Entertainment Merchants Association, which represents video game retailers.

The Entertainment Consumers Association, which represents the interests of gamers, is also a Media Coalition member.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

The Entertainment Software Association has filed a federal lawsuit against the Chicago Transit Authority, challenging a 2009 CTA ordinance which prohibits ads for games rated M (17+) or AO (18+) from appearing on its vehicles and facilities. 

GamePolitics readers may recall that in April, 2008 the CTA ordered ads for Grand Theft Auto IV removed from buses even before the game was released. The CTA action followed local news coverage of a rash of shootings in Chicago.

Shortly thereafter, GTA IV publisher Take-Two Interactive sued the CTA, charging that the agency had broken a $300,000 contract for the campaign. The parties settled the case later in 2008, with the CTA granting T2 a six-week GTA IV ad run. However, CTA officials moved to block future ads for M-rated games by passing the new ordinance, which took effect on January 1st and prompted today's legal action by the ESA.

ESA boss Mike Gallagher commented on the lawsuit in a press release: 

The CTA’s ordinance constitutes a clear violation of the constitutional rights of the entertainment software industry. Courts across the United States, including those in the CTA’s own backyard, have ruled consistently that video games are entitled to the same First Amendment protections as other forms of entertainment. The CTA appears unwilling to recognize this established fact, and has shown a remarkable ignorance of the dynamism, creativity and expressive nature of computer and video games. The ESA will not sit idly by when the creative freedoms of our industry are threatened.

The press release also explains some of the legal rationale behind the suit:

The ESA’s suit contends this new ordinance unconstitutionally “restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.” In addition, the Complaint argues that the ordinance impermissibly discriminates on the basis of viewpoint and ignores less restrictive means of achieving the supposed ends of the ordinance.  

The ESA also stated that the CTA’s ordinance is unnecessary because game-related marketing is already subject to the Entertainment Software Rating Board’s Advertising Review Council (ARC), which strictly regulates computer and video game advertisements that are seen by the general public.  The Entertainment Software Rating Board (ESRB) assigns content ratings to computer and video games, which, in turn, are displayed on the advertisements for those games.

As GamePolitics has reported, the Massachusetts Bay Transit Authority has a similar ban on M-rated game ads, likening them to X-rated movies. It is unclear at this time whether the ESA will pursue a similar action against the MBTA.

While the lawsuit also encompasses AO-rated games, as a practical matter, such titles are virtually non-existent in the U.S. market.

DOCUMENT DUMP: Grab a copy of the lawsuit here (70-page PDF)...

Via press release, GamePolitics has learned that California State Sen. Leland Yee (D) will be joined by a pair of mental health organizations in filing an amicus curiae (friend of the Court) brief with the United States Supreme Court tomorrow in support of the state's petition to overturn a 9th Circuit Court ruling that California's 2005 violent video game law - drafted by Yee - is unconstitutional.

The official announcement will be made at 10:00 A.M. Pacific Time by Yee and representatives of the California Psychiatric and California Psychological Associations. Sen. Yee is a child psychologist by trade.

GamePolitics will have more - including a copy of the brief - in our Wednesday coverage.

A veteran First Amendment attorney has ripped California's 2005 violent video game statute along with Gov. Arnold Schwarzenegger, who signed the measure into law.

As GamePolitics has extensively reported, in May California petitioned the U.S. Supreme Court to review lower court rulings which held that the measure is unconstitutional. The Court is expected to announce its decision in the fall.

Broadcasting & Cable reports on criticisms of the California law penned by Robert Corn-Revere (left):

In 2009, the killer cyborg turned governor has materialized in the present from the past in a plot to undermine the First Amendment.

In seeking review, California is asking the Supreme Court to reverse 60 years of First Amendment jurisprudence and to hold that 'excessively violent' material-whatever that may be-'deserves no constitutional protection.' It is also asking the Court to relieve government from actually having to demonstrate the purported harmfulness of speech it seeks to regulate, but instead to defer to "reasonable inferences" and legislative judgments.

If California is successful, it will open the door to regulate not just video games, but a wide range of speech that is currently protected under the First Amendment.

Over at GameTopius, paralegal-in-training Nikhil Baliga (who also has degrees in Political Science and Psychology) serves up a look at First Amendment issues as they relate to games.

While Baliga does a nice job of tracing some of the major case law, the article's main points could be stated with more clarity. This paragraph, for example, seems to imply that video games are not necessarily constitutionally-protected speech (they are):

What well intentioned, but usually ill informed, video game advocates often assume is that video games are constitutionally protected free speech. While there can be no doubt that video games are speech, the Supreme Court has stated that not all speech is constitutionally protected.

Later, Baliga explains that this is a reference to video games which might be considered legally obscene under the so-called Miller Test. The fact is, however, that the likelihood of that happening in the U.S. market, given the ESRB rating system, console licensing requirements and screening by major retailers, is roughly nil.

While there could be a non-commercial game or import (say, RapeLay) that might - might - meet the Miller obscenity standard, implying that commercial video games are not protected speech is roughly akin to saying that Hollywood movies aren't necessarily protected speech because there are also kiddie porn films.

Still in all, worth a read.

GP: Readers should note that Baliga is not a lawyer and neither is GP. So, take both opinions with the appropriate grain of salt.

The conservative Eagle Forum has filed an amicus (friend of the Court) brief with the United States Supreme Court in support of California's 2005 violent video game law.

As GamePolitics reported last month, California Attorney General Jerry Brown petitioned the High Court to review a U.S. District Court ruling that the state's 2005 law blocking the sale of violent games to minors is unconstitutional. A three-judge panel of the 9th Circuit Court upheld the District Court decision in a February ruling.

The family values group, founded by conservative Phyllis Schlafly (left) in 1967, filed the brief on Monday. The document was authored by Andrew Schlafly, son of Phyllis and founder of Conservapedia (sort of the anti-Wikipedia). In the amicus brief, the Eagle Forum lays an array of societal problems at the feet of violent video games: bad grades, violent behavior, poor graduation rates, school shootings, game addiction and even sudden death.

We'll let the Eagle Forum's laundry list speak for itself (with a little help from GP's trusty red pen):

The First Amendment does not render our nation’s youth defenseless against the predatory, billion-dollar video game industry that churns out increasingly graphic blood and gore for impressionable minds to imbibe...

 

The corruption of our nation’s youth with increasingly deviant video games is a matter of national importance. Our nation’s youth is in crisis, by any measure. A calamitous 30% of our nation’s youth fail to graduate from public high school, and only 32% of those who attend public high school are ever qualified to attend a four-year college...

 

A substantial percentage of teenagers are hooked on these disturbing video games, and spend many hours each week playing them. Moreover, mass killings perpetrated by youngsters are frequently linked to addiction to violent video games...

 

The First Amendment does not forbid state legislatures from keeping this harmful material from children. The California legislature, not known to be conservative, protected its youth against the predatory video game industry. It was an error with national implications for the Ninth Circuit to invalidate the California statute...

Violent video games hurt children in two ways. Their increasingly realistic and disturbing images burn into children’s impressionable minds much as pornography does, and the role-playing inherent in a video game causes the child to buy into the rampages of murder and other heinous crimes that he is acting out...

 

The early market leader in video games was Nintendo, which adopted a policy against “excessive blood and violence,” but it was trounced in sales by a 3 to 1 margin by more gory material produced by Sega, and Nintendo learned the message that “violence sells video games to children...”

 

Numerous studies confirm the obvious: violent video games do cause addiction and harm... There has never been a full First Amendment right to flash highly objectionable and disturbing images specifically at children, or to entice them to participate in destructive role-playing behavior...

Displaying a shocking image to a child is conceptually identical to the utterance of “fighting words” to an adult, which this Court famously held to be out-side of First Amendment protection...

The stress attributed to violent video games can even be physically harmful. Eighteen-year-old Peter Burkowski, an avid video gamer, collapsed and died of a heart attack while playing games in an arcade...

 

Children who play violent video games have difficulty obeying authorities, treating peers properly, and succeeding in school...

DOCUMENT DUMP: Grab a copy of the Eagle Forum's amicus brief here.

Eurogamer caught up with Take-Two Interactive CEO Ben Feder for a wide-ranging interview which is now available on the site.

While much of the conversation deals with various T2 games, Feder did touch upon the Manhunt 2 controversy and the notion of government censorship of games:

We firmly believe that games are art. A), we have the right to produce art. B), the consumer should have the right to make their own choices, providing the labelling on the package is clear about the content of the game.

Apart from that, I don't think it's the role of governments to determine what you or any of your readers can, or should, buy. They should be able to make their own choices. Government has no role in that at all...

Asked whether the interactive nature of games requires them to be viewed apart from, say, movies, Feder said:

It's not a difference with distinction... It's as if to say art as a painting is different than art as a sculpture. For sure they're different art forms and they use different mediums, but they're art nonetheless - they're forms of expression.

That, at least in the United States, is something that's guaranteed by the constitution, and in democracies in Western Europe there are very similar concepts about the ability for individuals to express themselves. If you stifle that, then society and the economy pay a pretty heavy toll.

Of particular interest given the ongoing RapeLay controversy, Feder was asked whether T2 might theoretically permit edgy developer Rockstar to create a game featuring sexual violence or abuse of children, Feder commented:

Look, I suppose there's a line somewhere. I don't think we've even come close to it. At the end of the day, we're also a commercial enterprise and we do intend to turn a profit with our games. That, in and of itself, provides a certain boundary beyond which we won't go.

I suppose there are more lines [beyond] which we'd be uncomfortable, but I don't think any of our games in the past, or any of our games that I've seen in development, come even close to that.

Now that California has asked the U.S. Supreme Court to consider whether its 2005 violent video game law is constitutional, President Obama's recent nomination of Judge Sonia Sotomayor to the Court takes on added significance for the video game industry.

That being the case, where does Sotomayor stand on free speech issues? Her record appears to be  mixed, according to a source with knowledge of the legal issues involved in the California appeal.

On the plus side for the video game industry, Sotomayor dissented from a majority of her colleagues on the 2nd U.S. Circuit Court in Pappas v. Giuliani. In her dissent, Sotomayor wrote that an NYPD officer should not have been fired for responding, off-duty, to an e-mail request for a charitable donation with a racist and bigoted language. As SCOTUSblog reports:

She acknowledged that the speech was 'patently offensive, hateful, and insulting,' but cautioned the majority against 'gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.'

On the other hand, Fordham Prof. Paul Levinson - who has argued free speech issues with Jack Thompson - writes that Sotomayor should be disqualified from the High Court over a what he calls a "bad 1st Amendment Decision."

In the case, Doninger v. Niehoff, Sotomayor and her 2nd Circuit colleagues supported high school officials who barred a student from holding class office after the young lady referred to school officials as "douchebags" in an off-campus blog. While the courts have traditionally given school officials some degree of leeway in maintaining order, Levinson remains concerned about Sotomayor:

[Retiring Justice] David Souter was a surprise to the Republicans who appointed him... His vote made a difference on the side of progressive and humane issues in many a Supreme Court decision.

We cannot afford or risk a Souter in reverse with this new appointment - a Justice who seems to have a progressive record, but who turns out to have an insufficient passion for protecting and strengthening the freedoms that make our country great.

Meanwhile, the California appeal has been docketed by the Supreme Court. The video game industry has until June 22nd to submit its response to California's petition.

UPDATE: Paul Smith of Jenner Block, who has been the video game industry's lead attorney in challenging video game legislation over the years, discusses the cases mentioned here on Talk Radio News and describes Sotomayor as:

She's a careful person who could go either way, but is focused on not just broad doctrine but how the doctrine applies to particular factual situations. Certainly that's true in the First Amendment free speech area.

The Media Coalition, a free speech defense trade group has criticized California's Supreme Court appeal of a lower court decision striking down its violent video game law as unconstitutional.

Media Coalition Executive Director David Horowitz said in a statement:

We are very disappointed that the California Governor and Attorney General have decided to spend the state’s scarce resources to ask the Supreme Court to carve out a new exception to the First Amendment.

 

The Ninth Circuit Court of Appeals earlier declined the state’s invitation to create a new class of speech outside of the First Amendment. This is settled law. In recent years, in addition to California, similar laws in Indianapolis, Michigan, Illinois, St. Louis County, Minnesota, and Washington attempted to ban video games with certain violent content were uniformly found unconstitutional.

Media Coalition members include video game industry trade groups the Entertainment Software Association (game publishers) and Entertainment Merchants Association* (game retailers). It was these two entities which originally brought suit against the California law in 2005.

The Entertainment Consumers Association is also a Media Coalition member.

* Prior to its 2006 merger with the Interactive Entertainment Merchants Association, the Entertainment Merchants Association was known as the Video Software Dealers Association, and the California case continues as VSDA v. Schwarzenegger.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

With the pending retirement of Justice David Souter from the U.S. Supreme Court, President Barack Obama will have the opportunity to name a replacement.

His choice could have a major impact on the constitutional issues relating to video games, especially if California Gov. Arnold Schwarzenegger decides to ask SCOTUS to consider February's 9th Circuit Court ruling that his state's 2005 video game law is unconstitutional. That decision from Schwarzenegger will come later this month.

Among names being floated for Souter's seat are Gov. Jennifer Granholm (left) of Michigan and 7th Circuit Court Judge Diane Pamela Wood (right). Both have a track record with video game issues.

As Governor, Granholm signed into law a 2005 video game blocking minors from purchasing violent games. The video game industry filed suit and the measure was ruled unconstitutional later that year by a U.S. District Court judge.

For her part, Judge Wood has a rather different history with games. In 2001 she was part of a three-judge Circuit Court panel which overturned an Indianapolis law that sought to limit the access of minors to violent arcade games. That case, AAMA v. Kendrick was the first of what has become an uninterrupted string of court victories in such cases for the video game industry.

Whether Obama appoints Wood, Granholm or another choice, this could be the year that the constitutionality of restricting violent video game sales makes it to the Supreme Court. The possibilities become even more interesting given conservative Justice Antonin Scalia's 2008 comment that such restrictions might pass constitutional muster.

DOCUMENT DUMP: AAMA v. Kendrick

Although Judith Krug's name may not be a familiar one to gamers, she was well-known - and highly-regarded - by those on the front lines of the battle against censorship of games and other forms of media.

Krug, 69, who died on Saturday, is best known as the founder of Banned Books Week. The annual event celebrates the freedom to choose what one reads. She was the Executive Director of the Freedom to Read Foundation and Director of the Office for Intellectual Freedom of the American Library Association.

Jennifer Mercurio, VP and General Counsel of the Entertainment Consumers Association, commented on Krug's passing:

Judith was instrumental in pushing for First Amendment issues being broadened to include video games.

Sean Bersell, VP of Public Affairs for the Entertainment Merchants Association, added:

Judith was instrumental in the fight against video game censorship. She was a forceful advocate for Media Coalition amicus briefs in the Indianapolis, St. Louis, Illinois, Minnesota, and California video game cases. It would have been easy for the librarians to say, "That's not our battle," but thankfully that wasn't Judith's temperament.
 
Judith was a fierce believer in the importance of freedom of expression to our culture and our society and was zealous defender of the First Amendment. We all have truly benefited from her passion.

The American Library Association has posted a tribute to Krug.
 

Utah Gov. Jon Huntsman is now considering whether to sign into law HB 353, the Jack Thompson-conceived video game and movie bill. The Guv has until approximately April 1st to make that decision. In the meantime, the National Coalition Against Censorship, among others, has urged Huntsman to veto the measure.

Along that line, GamePolitics readers may recall that last month, when HB 353 was introduced into the Utah House by Rep. Mike Morley (R), we asked Prof. Clay Calvert, Co-Director of the Pennsylvania Center for the First Amendment at Penn State, to offer his view of the original text of the bill.

Since that time, HB 353 has been substantially amended along the way to passage by the Utah legislature. That being the case, earlier this week we asked Prof. Calvert to revisit the final version of the bill. If you'd like to refer to the subsections mentioned by Prof. Calvert, you'll find them by hitting the jump.

Prof. Calvert's analysis follows:

The [safe harbor] defense provision of [HB 353] (g)(i)(A) not only is vague (what constitutes a documented training program? What is required by Utah to count as such a program?  With whom must it be documented?  Utah?), but it actually is quite burdensome because it only works if a store affirmatively adopts such a training program.  

The defense provision of (g)(i)(B) is helpful to stores because it prevents liability in the case where a minor engages in fraud to purchase a game by using a fake ID. That's a positive step in this revised legislation (which is NOT to say the legislation itself is positive).

One major concern is turning what the bill specifically identifies as a "recommendation" into a mandatory command. The recommendation is made by a private party (presumably the ESRB) and the government now is employing it with the force of law.

 

The National Coalition Against Censorship makes a great point when it states that this bill, "by incorporating the private voluntary ratings system... constitutes an unlawful delegation of legislative authority to a non-governmental entity."

In particular, there is significant legal precedent for this point in the context of violent video game statutes.  In July 2006, a federal district court in Minnesota in the case of Entertainment Software Association v. Hatch... issued an injunction prohibiting that state from enforcing a law that fined those minors under 17 years of age for renting or purchasing video games rated AO or M by the ESRB...

 

A second major concern is that section (u)(ii) simply applies if one "provides that good or service to a buyer subject to the age restriction or recommendation." The law could be improved if it applied to one who "provides that good or service to buyer knowing the age restriction or recommendation on the good or service AND knowing that the buyer is under the age of the restriction or recommendation." 

The American Civil Liberties Union has intervened after a middle school library in Ohio removed the November, 2008 issue of Nintendo Power.

The issue, which features a gun-toting female character from Grand Theft Auto: Chinatown Wars, was taken out of circulation at the Roxboro Middle School Library at the direction of Principal Brian Sharosky, according to the Cleveland Plain Dealer.

However, ACLU of Ohio executive director Christine Link argued that the magazine should not have been banned from the library:

Literature should not be removed from a school library simply because one person may find it inappropriate... [the school board should] immediately order that the magazine be reinstated.

Despite Link's argument, the Cleveland Heights-University Heights School Board has backed the principal's decision to remove Nintendo Power #234. With legal action on the matter increasingly likely, legal director Jeff Gamso offered the ACLU's position:

The principal doesn't get to say, 'Whatever I say goes.' There's got to be some mechanism by which decisions are made and a process of review. Or maybe tomorrow it'll be ' "Hamlet" -- that's an iffy play.'

UPDATE: Liz Surette of GamesLaw has provided a legal analysis of the issues in this case:

This situation is almost exactly like a case called Board of Education v. Pico, in which parents petitioned the school board to remove specific books that were “improper fare for school students” or “just plain filthy”.

The Supreme Court held that once a publication is in a school library, it may not be removed just because it is thought objectionable. The school board may decide which books and periodicals to purchase, but once they are made available on the shelves the children have a right to access that information. If the removal was motivated by a desire to deny students access to ideas with which the school disagrees, then it is unconstitutional.

However, the Court also said that the First Amendment is not implicated if the materials are removed because they are "pervasively vulgar" or if the decision was "otherwise based solely upon the 'educational suitability' of the books". The key fight here will be whether the principal removed NP for partisan/political reasons. I could go into much more detail about the policy rationale behind Pico and tensions with later cases, but suffice it to say that based on precedent the ACLU would surely win if they could prove that the principal pulled the mag just because he found it offensive or disagreeable.

Joining those who have called upon Utah Gov. Jon Huntsman to veto HB 353 is the National Coalition Against Censorship.

A post on the NCAC website says that the Jack Thompson-conceived bill "takes a voluntary effort by manufacturers to provide consumers with information about their products and turns it into a mechanism to deprive minors of their First Amendment rights."

More from the NCAC:

This bill would hold retailers responsible for selling minors material labeled for mature audiences.  Sellers of books, movies, video games, and music could be penalized up to $2000 for “violating” age guidelines created voluntarily for informational purposes only.

This bill takes a voluntary effort by manufacturers to provide consumers with information about their products and turns it into a mechanism to deprive minors of their First Amendment rights.  By incorporating the private voluntary ratings system, it also constitutes an unlawful delegation of legislative authority to a non-governmental entity...

 

The bill may result in consumers getting less information.  Stores not willing to risk lawsuit or fines for violating age restrictions may simply decide not to display ratings information.  The industry as a whole could even consider dispensing with its voluntary rating system if the result is to make retailers vulnerable to lawsuits and judgments.

We urge Governor Huntsman to veto this problematic bill.

UPDATE: The NCAC has written a letter to Gov. Huntsman urging a veto of HB 353.

As GamePolitics reported on Friday, the 9th U.S. Circuit Court has upheld a lower court's ruling that California's 2005 video law is unconstitutional.

The Parents Television Council has now weighed in on the decision. The Los Angeles-based watchdog group criticized the 9th Circuit's ruling and called upon PTC members to support State Sen. Leland Yee's call for an appeal to the U.S. Supreme Court.

In a press release, PTC President Tim Winter (left) said:

Let’s be clear on what – exactly – is going on here: The video game industry has established a policy to ‘protect’ children from a harmful product, yet they file lawsuit after lawsuit to oppose any enforcement of that same policy... The only motivation for the industry to sue is to keep collecting blood money from kids who aren’t supposed to be able to buy these games without their parents present at the time of purchase.

There are very responsible retailers out there – Wal-Mart and Game Stop come to mind – who take their obligation not to sell these games to kids very seriously.  Yet industry representatives claim this law is unfairly biased against them... If the industry actually followed its own rules, then this law would have absolutely no financial impact... 

Shockingly, the Court’s ruling claims that there isn’t enough research to support that children are affected by video game violence.  Yet countless independent studies confirm what most parents instinctively know to be true: repeated exposure to graphic sexual, violent and profanity-laced video games has a harmful and long-term effect on children...
This federal court decision is a disgrace and should be of great concern to all parents – not just in California but across our nation.  We applaud State Sen. Yee’s efforts to see that this decision goes to the U.S. Supreme Court...

As GamePolitics reported on Friday, a three-judge panel of the U.S. 9th Circuit Court has upheld a lower court's ruling that California's 2005 video game law is unconstitutional.

The decision in the case was written by Judge Consuelo Callahan (left). As we have previously reported, Judge Callahan is known as The Dancin' Queen of the Ninth Circuit:

A hoofer with a sense of humor, Callahan likes to surprise judicial and legal gatherings by starting discussions about serious topics and ending with a quip about appellate judges who tap dance around issues. She then pulls off her black robe to reveal a sequined costume and tap shoes.

She's been known to hop on a tabletop or in one case on a judicial bench during these special events and do some pretty impressive steps...

Hoofer or not, Judge Callahan reiterated the constitutional issues raised by other federal courts where restrictions on video game content are concerned:

The government may not restrict speech in order to control a minor's thoughts...

The [U.S.] Supreme Court has carefully limited obscenity to sexual content. We decline the state's invitation to apply the (same) rationale to materials depicting violence.

DOCUMENT DUMP: Grab a copy of Judge Callahan's ruling here.

Is California's violent video game law headed to the U.S. Supreme Court?

State Sen. Leland Yee (D) thinks it should be. Yee has urged California Attorney General Jerry Brown to appeal today's 9th Circuit Court decision which upheld a lower court's ruling that the video game law he authored in 2005 is unconstitutional.

Yee, a child psychologist, released this statement: 

While I am deeply disappointed in today’s ruling, we should not stop our efforts to assist parents in keeping these harmful video games out of the hands of children.  I believe this law will inevitably be upheld as Constitutional by the US Supreme Court.  In fact, the high court recently agreed, in Roper v. Simmons (2005), that we need to treat children differently in the eyes of the law due to brain development.