The Supreme Court, already embarked on an exploration of the outer edges of First Amendment protection, this morning added another issue: whether California can ban the sale of violent video games to minors. The Court granted review in Schwarzenegger v. Entertainment Merchants Association, in which California asks the Court to uphold its statute and to extend the Court's rules on obscenity and minors to violent depictions as well.
The decision to review the California law adds a second case to the fall docket on unpopular forms of speech. The Court earlier said it would consider whether the First Amendment protects offensive protests at military funerals, in the case of Snyder v. Phelps. And just last week, the Court in United States v. Stevens ruled that a federal law criminalizing the sale or possession of depictions of animal cruelty violated the First Amendment.
In the violent video case, Judge Ronald Whyte of the U.S. District Court for the Northern District of California struck down the state's 2005 law under a "strict scrutiny" standard, ruling that without sexual content, violence alone is protected by the First Amendment. The U.S. Court of Appeals for the 9th Circuit affirmed, finding that the state had not established a causal relationship between violent video games and the harm to minors the state was seeking to prevent.
California sought high court review, citing "growing evidence that these games harm minors and that industry self-regulation has proven ineffective." Deputy California Attorney General Zackery Morazzini is counsel of record.
Representing the video trade associations, Paul Smith, chair of Jenner & Block's appellate and Supreme Court practice in D.C., tried to discourage high court review, arguing that the 9th Circuit ruling was a "routine application of established First Amendment principles." Smith noted that similar laws in other states and localities have been struck down. Interestingly, one of the cases Smith cited involved a Michigan law defended by Gov. Jennifer Granholm, who is under consideration for the Supreme Court seat occupied by the retiring Justice John Paul Stevens.
The Court today also heard oral arguments in two cases, and issued orders, including a pair that bring to an end Michigan's efforts to enlist the justices in blocking the invasive Asian carp species from Lake Michigan.
More on today's Court action later today at nlj.com.