The last week of the Term: In Plain English

By Lisa Tucker
on Jun 28, 2011 at 9:48 pm

We waited. And we waited.  And we waited some more.  And, as so often happens in big, controversial cases, our wait lasted a long time – over two hundred days.  Finally, on Monday, the last day of the Term, the Court announced its opinion in Brown v. Electronic Merchants Ass’n.  By a vote of seven to two, the Court struck down a California law banning the sale or rental of violent video games to minors, saying that such laws violate the First Amendment.   Because violent games like Grand Theft Auto and Mortal Kombat sell well, and because several other states have similar laws on the books, video-game companies breathed a sigh of relief.

The law, which video-game makers challenged even before it could go into effect, applied to video games that contain the “killing, maiming, dismembering, or sexually assaulting an image of a human being.”  Violations of the law would have been punishable by a fine of up to one thousand dollars.  In defending the law, California pointed to studies showing that exposure to violent video games can cause children to become more aggressive over time.

So, given the evidence that violent games may make kids more aggressive, why did the Court conclude that the games are protected under the First Amendment?  Well, because video games are “speech,” just like books, plays, and movies.  As Justice Scalia explained in his opinion for the Court, although Mortal Kombat may not be as worthwhile as Dante’s Divine Comedy, it still is entitled to protection under the First Amendment.    And because this country does not have a history of treating speech aimed at children differently, the Court did not want to create a new kind of speech that is not protected by the First Amendment – the way that obscenity, for example, is not.  Even though some people (including some of the Justices) find the video games offensive, the Framers included the First Amendment in the Constitution to protect unpopular speech.   Parents who are concerned about their children playing violent games, the Court explained, could simply supervise their activities.

One last important detail:  because violent video games are protected by the First Amendment, the Court used its toughest test (“strict scrutiny”) to evaluate whether the California law was constitutional.  To pass that test, California would have had to demonstrate a very strong state interest in protecting minors; it failed to meet that standard, the Court held, because there were other, easier ways to shield children from violence; scientific research had not adequately shown that the games actually hurt children; and California has not restricted other violent media, such as Saturday morning cartoons.

The day’s other headliner?  Two consolidated cases, Arizona Free Enterprise Club’s Freedom PAC v. Bennett and McComish v. Bennett, follow-ups to last year’s controversial campaign finance decision, Citizens United v. FEC. These cases challenged an Arizona law (the “Clean Elections Act”) that tried to “level the playing field” for political candidates with less money in their war chests.  To accomplish that goal, candidates for public office who relied on public, instead of private, funding for their campaigns would get additional money to “match” the money spent by privately funded opponents, as well as by independent groups that spent money to campaign against them.  But the privately funded candidates and independent groups objected.  Their argument?  The law giving additional money to their publicly funded opponents violated their free speech rights, in part because the Court had held thirty-five years ago that campaign spending is a form of speech sometimes protected by the First Amendment. Here, the law’s challengers contended, the Arizona law forced them to spend less money so that their opponents wouldn’t qualify for matching funds.  The trial judge agreed, but the appeals court reversed, finding the burden to be “minimal.” Last year the Court agreed to block the funds from going to the candidates in the 2010 state election, but it did not decide the merits of the case itself until Monday.

On Monday, the Chief Justice wrote for a strongly divided Court in holding that the Arizona law violated the First Amendment. The five Justices in the majority reasoned that the law placed a heavy burden on candidates who spent enough money on their campaigns (or raised enough through fundraising) to disqualify them from participating in the public election funding plan. The Court rejected Arizona’s argument that the law does not force any candidate to personally express a message with which he disagrees. Instead, the Court explained, the potential effects that the law could have on privately funded candidates – for example, discouraging them from spending money on their own campaigns so that they do not “trigger” additional payments to their opponents –  made the law unconstitutional.

As I just explained in the discussion of the video games case, to determine whether a law that restricts speech is unconstitutional, the Court uses a test (“strict scrutiny”) that is – as its name suggests –hard to meet.   Indeed, although Arizona argued that the law was necessary to reduce corruption in campaigns, that justification was not enough to pass the very difficult test. What’s more, the Court also noted that that the real motive behind the law might have been to “level the playing field” for political candidates – which, the Court had previously held, was not a good reason to restrict speech.

The violent video games and campaign finance cases may have made the news, but two other cases decided Monday may have been just as important in an era in which people and products easily travel all over the world; they offered important guidance for courts about when they can hear cases involving a defendant who does not reside in the state.    In Goodyear Luxembourg Tires, S.A. v. Brown, two thirteen-year-old boys from North Carolina died in a bus accident in France that was allegedly caused by a defective tire made in Turkey by one of Goodyear’s foreign subsidiaries.  The boys’ parents filed a lawsuit in a state court in North Carolina against the foreign subsidiaries, which were based in Luxembourg, Turkey, and France.

In the United States, the question of whether a defendant can be held liable in a particular court is governed by principles of fairness, which in turn are derived from the Due Process Clause of the Fourteenth Amendment.  In particular, the Court has previously held, an out-of-state defendant can be held liable only if it has at least some contacts with the state in which it is being sued.  In the Goodyear case, the North Carolina courts had held that the Goodyear foreign subsidiaries could sue in North Carolina.  But  on Monday,the Court reversed.  In an unanimous decision, it held that Goodyear had not sold enough tires in North Carolina to be sued there; if the parents wanted to sue Goodyear, they would have to do it somewhere else.

While Goodyear may have been a relatively straightforward case (Justice Ginsburg wrote for a unanimous Court), the other case, J. McIntyre Machinery Ltd. v. Nicastro, was not.  Although the foreign company, J. McIntyre Machinery, also won, five Justices could not agree on why it should win; as a result, the Court issued a plurality opinion.    You may remember that a plurality opinion does not carry the force of law; instead, the narrowest concurring opinion controls.

In this case, Robert Nicastro sued J. McIntyre in New Jersey state court after he accidentally cut off four of his fingers on one of the company’s metal-shearing machines.  Although the accident happened in New Jersey, the machine was manufactured in England.  And J. McIntyre had very few contacts with New Jersey; although a distributor sold the machines in the United States, only four of them (at most) were located in New Jersey.  Although the New Jersey Supreme Court held that this very limited contact was enough to allow J. McIntyre to be sued in New Jersey, the Court (in a plurality opinion by Justice Kennedy) disagreed.

As Justice Kennedy explained, when considering whether a defendant can be sued in a particular state, a court must ask itself whether the defendant has done enough business in the state to intend to be governed by that state’s laws.  A defendant must intentionally exercise the privilege of doing business there.  It is not enough, said the plurality, for a defendant to expect that his products will eventually make their way to a state and be sold there; his actions are what matters.   Under that test, the plurality held, because J. McIntyre did not benefit from New Jersey’s laws or conduct commercial activity in the state, it could not be sued there.

Justice Breyer (joined by Justice Alito) agreed with the plurality that J. McIntyre could not be sued in New Jersey.  But in his view – which will now be the law – the plurality should have considered the way that modern business works – for example, through the Internet.  And he cautioned that before changing the law, the Court should hear from the Solicitor General – who represents the federal government before the Court – about how any such changes would affect modern business.

And, with that, the Court called it a Term.  Although the Justices may have to consider emergency petitions over the summer, their work for October Term 2010 is essentially done.  Their staffs and law clerks will remain at the Court over the summer, dealing with correspondence and cert. petitions, but the Justices will largely leave town to vacation, give speeches, and teach law school classes.  They’ll be back in late September for their long Conference, in which they consider the summer’s many cert. petitions.  We’ll see you then!