User:Iwahashi/Video Software Dealers Association v Schwarzenegger

Video Software Dealers Association v. Schwarzenegger, was a case in the United States District Court for the Northern District of California regarding the constitutionality of California Civil Code §§ 1746-1746.5, which impose restrictions and labeling requirements on the sale and rentals of violent video games. The court held that violent video games did not fall within the legal definition of obscenity under the First Amendment and the state did not have a compelling interest in preventing psychological or neurological harm to minors allegedly caused by playing these games. The court further stated that even if a state had a compelling interest in preventing psychological or neurological harm to minors by violent video games, the law was not narrowly tailored enough to further that interest.

The Supreme Court of the United States has granted a writ of certiorari, see Schwarzenegger v. Entertainment Merchants Association, and is expected to decide this case in June 2011.

Plaintiff

 * Video Software Dealers Association

Defendants

 * Arnold Schwarzenegger, in his official capacity as Governor State of California
 * Edmund G. Brown, Jr., in his official capacity as Attorney General, State of California
 * George Kennedy, in his offical capacity as Santa Clara County District Attorney
 * Richard Doyle, in his official capacity as City Attorney for the City of San Jose
 * Ann Miller Ravel, in her official capacity as County Counsel for the County of Santa Clara

Procedural background
The Video Software Dealers Association ("VSDA"), brought suit against Arnold Schwarzenegger, the Governor of California, and various other California state officials for declaratory relief seeking to invalidate newly enacted California Civil Code §§ 1746-1746.5 (the "Act"). The Act imposed restrictions and labeling requirements on "violent video games" sales and rentals to minors. The VSDA alleged that the Act violated the First Amendment and Fourteenth Amendment. The District Court granted summary judgment to the VSDA and the Defendants timely appealed.

Ninth Circuit Appeal
The Ninth Circuit affirmed the Summary Judgment for the VSDA by holding:
 * 1) The Act is a presumptively invalid content-based restriction on speech, so it is subject to strict scrutiny and not the "variable obscenity" standard from Ginsberg v. New York.
 * 2) The Act violates Rights protected by the First Amendment because the state has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exists a less-restrictive means that would further the State's expressed interest.
 * 3) The Act's labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information, but compels the carrying of the State's controversial Opinion.

The Act
The Act states that a "person may not sell or rent a video game that has been labeled as a violent video game to a minor." Violators are subject to a penalty of up to $1,000. The act further defines a "violent video game" as: (d)(1) "Violent video game" means a video game which includes the options available to player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following: (A) Comes within all of the following descriptions: (i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors. (ii) It is patently offensive to prevailing standards in the community as to what is suitable to minors. (iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors. (B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim. The act also imposes a labeling requirement that requires each "violent video game" imported into or distributed in California to "be labeled with a solid white '18' outlined in black," which shall appear on the front of the game's package in at least 2 inches by 2 inches in size.

Reasoning
The court first addressed the VSDA's argument that the entire Act should be invalidated based on the defendant's concession on appeal that the definition of "violent video game" in the statute is unconstitutionally broad. However, the statute has a severability clause so the court runs through the test for severability set forth in ''Hotel Employees & Rest. Employees Int'l Union v. Davis''. The court held that definition for "violent video game" is grammatically and functionally separable because, as an alternative definition of "violent video game," it can be removed from the Act without affecting the wording or function of the Act's other provisions. Further, the definitions are volitionally separable because those sections were not of critical importance to passage of the act and the legislative body would have adopted the act had it foreseen the partial invalidation of the statute. These definition sections were only included to try and avoid the a court ruling them unconstitutionally vague so the legislature would still have enacted the statues without the definition section.

The court next went on to determine what level of scrutiny should be applied in reviewing the Act's Prohibitions. The defendants insisted that the "variable obscenity" standard from Ginsberg v. New York should be used. However, the court held that the "variable obscenity" standard does not apply to violence. The Court in Ginsberg was careful to place substantive limits on its holding, and concern in Ginsberg is only "sex material" not violence. The court declined to extend the application of the "variable obscenity" standard to violence, so strict scrutiny will be applied. In applying strict scrutiny the court recognized that "content-based regulations are presumptively invalid," and to survive the Act requires:
 * 1) It "must be narrowly tailored to promote a compelling Government interest."
 * 2) "If a less restrictive alternative would serve the Government's purpose, the legislature must be use the alternative."

The court invalidated the statute on both accounts. First, it said they limited the purpose of the Act to the actual harm to the brain of a child playing a violent video game. The state was required to show that "the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate those harms as direct and material way." Here, the defendants have failed to do so because all of the reports the relied on in making these were admittedly flawed. The state is allowed to protect minors from actual psychological or neurological harm, but not control minors' thoughts. Second, the court also held that the defendants have not demonstrated the absence of less restrictive alternative means. In fact, Video games already comply with a voluntary rating system that rates video games based on their topics and age appropriateness. This is a clear example of a less restrictive means. Least restrictive means is not the same as most effective means.

The court also evaluated the constitutionality of the Act's labeling provision, which requires that a label be affixed to the front of every package the state deems to be a "violent video game." Generally, "freedom of speech prohibits the government from telling people what they must say." However, the court has upheld compelled commercial speech where it is the inclusion of "purely factual and uncontroversial information" in advertising. But, the labeling requirement of "violent video game" is not factual information. The Act has not clearly and legally provided a way to determine if a video game is violent so the sticker does not convey factual information. Consequently the statute is unconstitutional.

Outside Sources

 * Supreme Court Blog
 * Harvard Jolt Synopsis
 * Arstechnica on Supreme Court Granting Cert
 * Wall Street Journal on Ninth Circuit Opinion