Political tweets and Facebook status updates should be held to the same standards as paid advertising that voters see on television, radio or in Californian's mailboxes, says California's campaign watchdog agency, The Fair Political Practices Commission, in a report being released Monday. The Fair Political Practices Commission is considering how to regulate "new forms of political activity" on Facebook or in a text message.

"It's become necessary as politicians in California and elsewhere announce their candidacies and major campaign policies through Twitter, YouTube and a host of social networking sites," said FPPC Chairman Dan Schnur. He also added that California's 36-year-old Political Reform Act needs a modern-day re-write to keep up with the times.

"Our goal here is to meet the new challenges of 21st Century technology," Schnur said. "There's no way that the authors of the act could have anticipated that these of types of communicating a campaign message would ever exist."

Kotaku reports that the notorious Westboro Baptist Church (who you may know better as the "God Hates Fags" sign wielding congregation out of Kansas) will be in San Diego next week to protest the "idolatrous worship" taking place at Comic-Con (thanks to Shoutbox user Rodrigo Ybáñez García for the tip!).

The activity will happen on July 22. To get an idea of where this group is coming from you need look no further than comments in its schedule of events section on its web site:

The staff at Game Politics would like to wish our readers a safe, happy and healthy Independence Day. The coverage we provide here is rooted in protecting the freedoms we currently have as gamers and consumers, so we find this particular holiday compelling and important. We also enjoy the occasional steak, burger, hotdog, beer, soda and late night fireworks.

We hope that you will indulge in these things as well and be thankful for the freedoms all of are afforded under the constitution. We just wish more politicians and activists that stand against the things we find important would see things our way, but I suppose that is one of the reasons why celebrating independence and freedom of speech is so great. Game Politics is certainly about voices being heard; it is one of the few websites on the internet that brings together all kinds of people with all kinds of belief systems and political leanings to discuss issues we all think are important - and usually in a civilized fashion.

For that I am personally thankful, as hokey as all of that sounds.

It looks like the folks at the top of the Federal Trade Commission are distancing themselves from the fairly controversial proposal to save the newspaper industry - if the Wall Street Journal is to be believed. The "working paper on reinventing the media" was released on May 24 and widely criticized by most everyone as ludicrous. The report looked at ways to save the newspaper industry by charging fees to news aggregator sites that source newspapers, and taxes on electronics like iPads, laptops and Kindles. Money collected from these and other methods would then be redistributed to traditional media outlets.

So how is the FTC distancing itself from the plan? From the top down. No doubt after seeing a Rasmussen poll that showed a majority of Americans loathed such a plan, the FTC's top man has backpedaled as if he had nothing to do with it at all. In testimony before the Senate Judiciary subcommittee on Wednesday, FTC Chairman Jon Leibowitz called the plan to tax devices "a terrible idea." But tax aside, it seem that the FTCV has not abandoned the idea altogether.

While the Entertainment Software Association (ESA) won a partial victory (preliminary injunction) earlier this year against the Chicago Transit Authority (CTA) over an ordinance that attempted to prohibit Mature (M)-rated game advertisements, the trade group now has an even clearer win under its belt, as a Judge has permanently banned the CTA from “enforcing or directing” enforcement of the ordinance.

In a ruling (PDF) handed down on May 17 in the U.S. District Court for the Northern District of Illinois, Eastern Division, Judge Rebecca Pallmeyer—who granted the preliminary injunction as well—ordered judgment against the CTA and dictated that prompt notice of the judgment be given to CTA officers, and any agents, servants, employees and attorneys. The CTA also agreed not to “appeal or otherwise attack the validity or enforceability of the Consent Judgment and Permanent Injunction.”

In what can only be categorized as "no great shock to our readership," Michigan State University law professor Kevin Saunders will help the state of California when the Supreme Court revisits Schwarzenegger v. Entertainment Merchants Association later this year. Saunders will help co-author an amicus brief to help California’s position when arguing its case before the U.S. Supreme Court during its 2010-11 session, which begins in October. As you probably already know, Saunders testified during the 2005 California State Assembly Judiciary Committee hearings on the issue at the invitation of Leland Yee. His arguments were obviously against the industry and for the law written by Yee.

Saunders' statements on the matter almost sound like the ECA's, EMA’s or the ESA's position:

"Parents need to play an active role in deciding what is appropriate for their children."

No disagreement there. But then he makes it sound as if the law helps to insure that universal truth:

In response to the U.S. Supreme Court’s decision to review Schwarzenegger v. EMA —a California law that would make it illegal to sell violent videogames to children—The Entertainment Consumers Association (ECA) is launching a two-pronged initiative designed to show the Court exactly how gamers feel about their First Amendment rights.

The ECA plans to submit an amicus brief to the Court and has also launched an online petition that will urge the Court to hold videogames as free speech, protected under the First Amendment.

ECA President Hal Halpin stated:

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.

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.

Yesterday GP reported on a comment made by Stardock CEO Brad Wardell regarding his company switching to UPS as a shipping provider, which, in turn, was a seeming response to UPS pulling its advertising from Fox News.

Wardell has since taken to his blog to further explain his position. Noting that GP had reported on his original Facebook post and that the story had eventually “morphed into support for Glenn Beck,” the self-described conservative stated that we are “in the age of the Internet where anything can be recorded, video’d or in this case, copied and pasted, you end up in a gray area of what exactly is news and what isn’t.”

Wardell continued:

I wasn’t making a moral pronouncement on what UPS had done. I was simply annoyed by what they were doing. If people want to boycott my company as a result, that’s certainly their right. Of course, I suspect they assume that if their boycott were successful and I had to lay people off that I wouldn’t do so based on the ideology of the employee.

Neoseeker takes the story a step further, receiving a response from UPS press relations that, in fact, they never pulled their advertising on Fox:

We simply did not have any ads currently airing on FOX.  In fact, a new advertising rotation began on September 14 to support the new The UPS Store online printing service. FOX is included in that rotation.

A few weeks ago, UPS announced that it was pulling its advertising from Fox News because it disagreed with the inflammatory views of talk show host Glenn Beck. For those that missed the flap, Beck called President Obama a racist "with a deep-seeded hatred for white people." At least 33 companies have said they do not want their ads appearing on Beck's show.

In return, it looks like Stardock CEO Brad Wardell has taken the boycott a step further. According to the Angry Bear blog, Wardell has announced on his Facebook page that he is now boycotting UPS because they pulled their ads from Fox. He said Stardock does "a non-trivial amount of shipping with UPS" and if they did not change their position, he was taking Stardock's business to FedEx. 

The amount of business that UPS would lose should amount to a minor blip on their bottom line, but Wardell's stand of boycotting the boycotter makes for an interesting debate on supporting products you like, even though the executives may disagree with their political views. The Angry Bear points to his own views of Orson Scott Card and the upcoming Shadow Complex game.

Is this much ado about nothing, or can one voice become a collective roar? How far down the line will boycotts go? Will gamers who agree with UPS now boycott Stardock? Where do you stand?

Update: Wardell emailed GamePolitics with the following:

My Facebook comment was taken considerably out of context. I could care less about Glenn Beck or whether someone advertises on their show or not. But UPS is boycotting the entire channel which annoyed me enough to ask my publishing director to look into whether it was true (it was) and have them look into Fed Ex which provided competitive pricing and make use of them for our uses.
 

In the latest edition of his Soapbox, G4's Adam Sessler expresses the view that video game censorship is pretty much gone, but that gamers should be watchful for its return.

GP: Here at GamePolitics, we're waiting for the U.S. Supreme Court to rule in the California case later this year. At that point, we'll have a better handle on where the game censorship issue is heading.

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)...

A PlayStation 3 gamer has filed suit in U.S. District Court in California, alleging that SCEA suppressed his free speech rights and caused him pain and suffering by banning his account on the PlayStation Network.

In a complaint filed on July 6th, Erik Estavillo of San Jose writes that he his disabled by a variety of disorders; among these are agoraphobia, a fear of crowds:

The pain and suffering was caused by the defendant, Sony, banning the plaintiff's account on the PlayStation 3 Network, in which the plaintiff relies on to socialize with other people, since it's the only way the plaintiff can truly socialize since he also suffers from Agoraphobia...

Estavillo's issues with SCEA apparently stem from his play of the PS3 hit Resistance: Fall of Man:

The ban is supposedly due to the behavior of the plaintiff when he plays the video game "Resistance: Fall of Man," which Sony owns and employs moderators for its online play. These moderators kick and ban players that they feel are deserving; though their biases to a player seem to be what determines the kick or ban...

 

The plaintiff was exercising his First Amendment Rights to Freedom of Speech in the game's public forum when he was banned from, not only [Resistance], but also banned from playing all other games online via the PlayStation Network...

Estavillo also claims that the PSN ban amounts to a theft of his pre-paid points:

The plaintiff...cannot access [his] money when a moderator from Resistance and Sony gives a player a arbitrary wide-range ban... which in essence, is stealing money from the player...

Estavillo also argues that the EULA for online play of Resistance is ineffective in blocking players under the game's recommended age of 17, although it's unclear how this fits into his claim.

In his request to the court, Estavillo, who appears to be unrepresented, asks that SCEA be enjoined from banning players. He also seeks $55,000 in punitive damages.

To date, SCEA has not filed a response with the Court. GamePolitics has requested comment on the lawsuit from SCEA.

DOCUMENT DUMP: Grab a copy of Estavillo vs. SCEA here...

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.

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.

In an editorial published this morning the Albany Times-Union offers support for a federal lawsuit filed last week against the city of Troy, New York and its public works commissioner, Robert Mirch (left).

GamePolitics readers will recall that in 2008 inspectors invoked the city's building code to shut down an art gallery which was displaying Virtual Jihadi, Iraqi artist Wafaa Bilal's controversial computer game exhibit. From today's Times-Union editorial:

What constitutes free and protected speech in Troy, and what constitutes public safety and unacceptable building code violations, aren't merely matters of fiat. They aren't simply up to the whims of Robert Mirch. They shouldn't be, at least...

 

The public works commissioner, not to mention the majority leader of the Rensselaer County Legislature, had effectively appointed himself arbiter of public morals...

Mr. Mirch, meanwhile, seems to have a new beef with the media... He's bothered that the lawsuit, which after all is a public document, has made it into the hands of the media. Let's hope he doesn't try to use the building code to further retaliate...

Free speech and the building code should be kept separate.

The New York Civil Liberties Union has filed a federal lawsuit claiming that the city of Troy, New York and its Public Works Commissioner suppressed free speech by shutting down a controversial video game exhibit in March, 2008.

GamePolitics readers may recall our extensive coverage of the politically-charged situation surrounding Iraqi-born artist Wafaa Bilal. His Virtual Jihadi exhibit employed a modded PC game which included a mission to blow up then-President George W. Bush. Bilal said that the exhibit was intended to express his view that U.S. policy in Iraq helped create terrorists.

Bilal, a U.S. citizen and a faculty member at the Art Institute of Chicago, was invited to display his work at Rensselaer Polytechnical Institute in Troy but was abruptly ordered off campus after the school's College Republican Club raised objections to the game. Bilal was then offered space to display Virtual Jihadi at a nearby gallery, the Sanctuary for Independent Media.

The gallery, however, was suddenly shut down for building code violations by Troy's Public Works Commissioner, Robert Mirch (left). Mirch, who is named as a defendant in the suit, had earlier led a demonstration protesting the exhibit. He called the suit politically motivated.

The Albany Times-Union offers comment on the suit from Melanie Trimble of the NYCLU's Capital Region Chapter:

City officials cannot selectively enforce building codes to shut down an art exhibition they find distasteful. Mr. Mirch abused his authority to suppress the free speech rights of people he disagree with, an unconstitutional act that must be challenged.

According to the Times-Union report, the NYCLU seeks a court order to block the city from using its building code to infringe on civil rights. The suit also seeks damages on behalf of the non-profit which owns the Sanctuary for Independent Media as well as for the gallery's executive director. The NYCLU has posted a press release on the suit.

DOCUMENT DUMP: Grab a copy of the complaint from the NYCLU website...

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.

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.

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.

Gail Markels (left), a New York attorney who formerly served as VP and General Counsel with game publishers' trade group ESA, has been elected to chair the board of the National Coalition Against Censorship.

Most recently, NCAC was active in the successful fight against Utah's Jack Thompson-authored video game bill, HB 353.

Markels (left), who worked for the Motion Picture Association of America before her stint with the ESA, commented on her new duties:

Unfortunately my experience in both the video game and film industries has taught me that censorship is alive and that we cannot take the freedom to read, watch and play the books, movies or video games we choose for granted.

 

The NCAC plays a vital role in protecting the freedom to decide for ourselves what we want to read, see, say, hear, and think.

Before leaving the ESA in early 2008, Markels compiled an umblemished string of court victories against states which attempted to enact video game legislation.

The Salt Lake Tribune reports this morning that Utah Attorney General Mark Shurtleff (R) harbored reservations about the legality of HB 353, the video game/movie bill conceived by Jack Thompson.

Trib reporter Robert Gehrke writes:

Attorney General Mark Shurtleff... told me last night that his office had expressed its concerns "with several different iterations of the bill" while it was pending before the Legislature.

"Ultimately, we could probably make an argument to defend it, but we will be sued, it will be costly. If we lose we will pay attorneys fees. Wouldn't you rather spend that money educating people about the rating system?" he asked. "The governor apparently decided it wasn't worth the risk."

There would seem to be little love lost between Shurtleff and Thompson. During the disbarred attorney's previous attempt to legislate games in Utah, he called for Shurtleff's impeachment after the A.G. opined that Thompson's 2007 bill was constitutionally-challenged. The bill was subsequently tabled by the Utah House.

Thompson, who apparently got wind of Shurtleff's comments in advance, disputed the A.G.'s remarks in a harshly-worded e-mail sent last evening:

We told you for weeks that if you had any constitutional concerns, we wanted to provide you any information you wanted in that regard.  I offered repeatedly to meet with you and talk with you, and you ignored my repeated plaintive requests to do so... 

We heard absolutely NOTHING from you as to the bill’s alleged unconstitutionality, and yet now we hear... that you were badmouthing it in that regard, I presume to Gov. Huntsman as well... 

For his part, Shurtleff has been both a critic of violent video games as well as a supporter of the ESRB rating system. In 2005, for example, he urged Utah retailers to boycott Eidos's controversial cops-and-robbers shooter, 25 to Life.

In 2006 Shurtleff made an industry-funded public service announcement in which he urged parents to utilize ESRB ratings. As GamePolitics has reported, Shurtleff received a $3,000 campaign donation from the ESA in May of 2008.

An experienced First Amendment lawyer warned that political correctness is a looming threat to the video game industry.

Lawrence Walters made his remarks at the Game Developers Conference in San Francisco yesterday. GameSpot offers a report:

Just when the decency police and moral values groups have been all but defeated in the courts--both of law and public opinion--a new threat has emerged from our left flank: political correctness. The leftist thought police are now wanting to impose their view of propriety on modern cultural discourse...

 

Think about [a New York bill that would prevent minors from purchasing games containing racial stereotypes]... Would we ever in a million years tolerate the government passing a law that movies cannot have profanity, racial jokes, or derogatory language? That would eliminate practically every movie made.

Now we can debate all day long whether racist stereotypes or derogatory language is even appropriate in video games, but that's for us to debate, and not for the government to decide... [The video game industry] needs to reveal its enemies for who they are--radicals on the left and on the right--and marginalize them...
 

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.