The Supreme Court agreed Monday to rule on the constitutionality of a state law banning the sale or rental of violent video games to minors. The Court accepted for review an appeal by the state of California, urging the Court to adopt a new constitutional standard that would enable states to ban such games for those under age 18. The case is Schwarzenegger v. Video Software Dealers Association (08-1448).
The Court apparently had been holding the case until it decided another First Amendment case involving violent expression — U.S. v. Stevens (08-769). In that ruling, issued last Tuesday, the Court struck down a federal law that banned the depiction in videotapes of animal cruelty. In that ruling, the Justices refused to create a new exception to the First Amendment free speech right. The Court could have opted to send the California case back to the Ninth Circuit Court to weigh the impact of the Stevens decision. Instead, it simply granted review; the case will be heard and decided in the Court’s next Term, starting Oct. 4.
In the new appeal, California officials urged the Court to adopt a constitutional standard, created for use in cases involving protection of minors against obscene materials, that has never been used when the content was violent in nature, rather than obscene. The standard, derived from the Court’s 1968 decision in Ginsberg v. New York, allows states to pass laws barring minors’ access to obscene materials if the law represents a reasonable judgment by the legislature that exposure to such materials will harm minors.
The Ninth Circuit Court, in reviewing California’s 2005 ban on sale or rental of violent video games to minors, refused to apply that standard. Instead, it used the most rigorous constitutional standard for judging laws that curb expression — strict scrutiny. The Circuit Court found that there was no proof that playing such games would cause physical or psychological harm to minors. The appeals court also said the law was not the least-restrictive approach to protecting children from exposure to such games.
Under the law, blocked by a federal judge before it was scheduled to go into effect on Jan. 1, 2006, requires the labeling of video games containing violence, and provides civil penalties of up to $1,000 for violations. The law, one of the first of its kind in the nation, has been imitated by similar laws in six other states, and some county or city governments. All of such laws, however, have been blocked by court orders after being challenged.
California’s law defines a violent video game as one that depicts “killing, maiming, dismembering, or sexually assaulting an image of a human being,” in a manner that a reasonable person would find appeals to “a deviant or morbid interest” of minors, is “patently offensive” to prevailing standards of what is suitable for minors, and causes the game — as a whole — to lack “serious, artistic, political or scientific value” for minors.
The game industry, in opposing Supreme Court review of California’s petition, told the Court that “in over 50 years of obscenity jurisprudence, the Court has never applied the obscenity doctrine outside the context of sexual speech. What the State proposes in this case would effect a sea change in the permissible regulation of all media — including books, movies, and television programs — that contain violent content and are accessible to minors.”  The industry groups also contended that the existing rating system for such games, which has been praised by the Federal Trade Commission, has not been proved to be ineffective in insulating minors from games they should not play.
The case was one of two new ones the Court granted Monday, for decision next Term. The other, Ortiz v. Jordan, et al. (09-737), test whether a party that loses a case in a pre-trial summary judgment can go through the trial, then get the summary judgment ruling overturned by the appeals court. The issue arose in a case involving a claim of sexual assault on an inmate at the Ohio Reformatory for Women in Marysville. The case of the woman prisoner went to trial, after summary judgment was denied to those she sued, and she won a jury verdict of $625,000. Afterward, the Sixth Circuit Court of Appeals ruled that summary judgment should have been granted to two prison officials on the basis of a claim of legal immunity. The petition by now-former inmate Michelle Ortiz argued that federal Circuit Courts are split on the issue she raised.
The Court asked the U.S. Solicitor General to provide the federal government’s views on when an Indian tribal court may decide the custody or placement of a child, if the case does not involve members of that tribe and does not involve Indians living on a reservation. The case grows out of a custody dispute resolved by the tribal court of the Native village of Kaltag, one of about 230 Native villages in Alaska that are recognized by the federal government as tribes — at least for some purposes. The tribe lives within the tiny community — 188 people — of Kaltag, alongside the Yukon River in west-central Alaska.  The case turns on the meaning of a 1978 federal law, the Indian Child Welfare Act.
Once the Court gets the Solicitor General’s response, it will decide whether to hear and decide the case of Hogan, et al., v. Kaltag Tribal Council, et al. (09-960). There is no deadline for the filing of that response.
In perhaps the most significant of a number of denials issued Monday, the Court ended the energetic effort of the state of Michigan to draw the Court into the midst of an ongoing effort — federal, state and local — to stop the migration of an invasive species of fish, the Asian carp, toward and into Lake Michigan. Previously this Term, the Court had twice denied Michigan’s requests to issue temporary orders to require emergency measures to stop that migration. The federal government, in opposing those preliminary injunction requests, had argued that the federal government was itself making extensive efforts to curb the carp’s Lake-bound travels.
Michigan, besides seeking those orders, had made two pleas to the Court: first, that it allow the reopening of a prior case that the Justices had ruled upon several times, involving diversion of Lake Michigan waters, in order to examine the new controversy over fish migration, or, second, as an alternative, to allow Michigan to file a brand new Original lawsuit against Illinois, the U.S. Army Corps of Engineers, and a local Chicago water district. The Court, in a brief order Monday with no explanation, turned down both requests. Michigan retains the option of pursuing its claims in a lower federal court, however. (The old cases were Original 1, 2 and 3, Wisconsin-Michigan-New York, et al., v. Illinois, et al.)
In another order, the Court told the Fourth Circuit Court in Richmond, VA, to take a new look at the pleas of a Virginia group for First Amendment protection for two proposed political advertisements on the radio, sharply criticizing the character of Barack Obama. The group, titled The Real Truth About Obama, Inc., organized in 2008, and within a week went to federal court to challenge Federal Election Commission regulations and policies on campaign radio broadcasts. Losing in the Circuit Court, the group took the case on to the Supreme Court.
In Monday’s order, the Court told the Circuit Court to consider whether part of the case is now legally dead (“moot”) because the FEC has scuttled two of the three regulations that the organization had challenged, and to reconsider the remainder of the group’s challenges by applying the Court’s January ruling in Citizens United v. FEC, expanding First Amendment protection for campaign finance activity. The case was docket number 09-724.
The organization’s proposed radio ads, prepared for use during the 2008 presidential campaign, accused Obama of lying about his legislative record on abortion issues, and accused him of seeking to widely expand abortion rights and funding. It went to Court to get a preliminary injunction against FEC rules and restrictions on campaign ads, but failed in both District Court and in the Fourth Circuit. The U.S. Solicitor General, responding to the group’s petition, told the Supreme Court that the challenge was moot as to two of the three Commission regulations, and that the remainder of the case did not deserve Supreme Court review. Instead of following that advice entirely, the Court gave the group another chance to pursue at least part of its legal complaint in lower courts.
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