Is Minnesota Video Game Appeal Heading to US Supreme Court?

May 9, 2008 -
As GamePolitics reported last month, Minnesota Attorney General Lori Swanson (left) appealed a decision by the US 8th Circuit Court which held that a lower court was correct in ruling the state's 2006 "fine the buyer" video game law unconstitutional.

In her appeal, Swanson was seeking what is known as an en banc review of the case, in which all of the 8th Circuit's judges would review the decision made by a three-judge panel in March.

GamePolitics has now learned that the 8th Circuit has declined to hold the en banc review. This means that the only legal recourse available to Minnesota is an appeal to the US Supreme Court.

If that happens, it will be the first time that the Supreme Court has considered a case involving video game legislation. Making this possibility especially intriguing are comments made by Justice Antonin Scalia to Law of Play's Anthony Prestia in February of this year:
Justice Scalia replied that he did believe such legislation was constitutional. He began by explaining his belief that sound constitutional precedent holds that minors may be subjected to prohibitions that adults are not – he instantly drew the parallel to regulation of pornography sales…

Justice Scalia did not suggest that violent and/or sexual content in games rises to the level of unprotected speech. In fact, he did not even suggest that video games themselves are not protected by the First Amendment…

We've got a call in to A.G. Swanson's office to see whether an appeal to the Supreme Court is planned. In the meantime, you can view the 8th Circuit's denial of Minnesota's en banc request.


Let's finish this bullsh*t once and for all.

I'm getting irritated by this constant scrutiny.

[...] wrote an interesting post today onHere’s a quick excerptAs GamePolitics reported last month, Minnesota Attorney General Lori Swanson (left) appealed a decision by the US 8th Circuit Court which held that a lower court was correct in ruling the state’s 2006 “fine the buyer” video game law unconstitutional. In her appeal, Swanson was seeking what is known as an en banc review of the case, in which all of the 8th Circuit’s judges would review the decision made in March by a three-judge panel in March. GamePolitics has now learned that the 8th Circuit has declined to hold the en banc review. This means that the only legal recourse available to Minnesota is an appeal to the US Supreme Court. If that happens, it will be the first time that the Supreme Court has considered a case involving video game legislation. Making this possibility especially intriguing are comments made by Justice Antonin Scalia to Law of Play’s Anthony Prestia: Justice Scalia replied that he did believe such […] [...]

Please, let it go to the surpreme court. This bullshit has to stop.

Altair took my rebuttal for me. This needs to be dealt with once and for all.

I have a feeling MN probably won't feel it's worth it and just give up after this point. It sounds like they wanted it to pass, but if it won't get an en banc hearing, they'll probably just let it die. I get the sense they don't feel that strongly about it that they want to take it that far.

And even if it does, I don't think that the SCOTUS will hear it as they'll consider it not worth their attention (they do reserve the right not to hear certain cases). More likely they'll hear the Terry/Matheson bill if it passes and it gets that far.

Well, Scalia is a fucking asshole. After all this is the guy who said torture is okay because it's not punishment.

If any bill goes to the Supreme Court for review it will either be the California bill or a federal bill if one is passed regulating violent video games. I doubt the SC would take this one up if it's appealed to them.
Also Scalia isn't the greatest person to look to if determining whether a law would be found constitutional or not at the Supreme Court (even though Scalia is pretty pro-free Speech IMHO), if we could get the opinion of a centrist like Kennedy then that would be better.

I say bring it. Leland Yee also needs to be permanently shut down as well and there is an opportunity here to do this now and not later.

I wouldn't bank on either Swanson not appealing or the Court denying cert (which only requires a "yes" vote from 4 of the 9 Justices). Not when Scalia's effectively encouraging her do so by signaling an inclinatuion to vote in her favor. You'll also notice that the denial of the en banc review was not unamimous (which usually means that the dissenter(s) wanted the opportunity to vote for reversal).

And if you read the three-judge panel's opinion. you'll see where, despite the fact that they upheld, they weren't all that keen on upholding.


Only one judge voted for the rehearing en blanc that i can see. Also none of the judges from the ruling voted to rehear it, which is kind of weird. I wonder why?

It's very doubtful that the Court would hear the case, even if Minnesota chose to petition for certiorari (ask that the Supreme Court hear the case).

Generally, the Court takes cases presenting issues in which there is a split of authority among the various federal circuits. In this case, all the circuits that have addressed the issue come down the same way that the 8th does. Until some circuit disagrees with the rest, the Court will almost certainly not involve itself.

There are exceptions to this general rule, but I don't think this case will become one of them.


Agreed, but if it is a federal law that is passed the Supreme Court would be more likely to take it to.


The three-judge panel made it clear in their opinion that they weren't in agreement with the leading precedent in their Circuit (Interactive Digital Software Ass’n v. St. Louis County) but felt bound by it. That sort of murkiness is the sort into which the Supreme Court loves to wade.


And I sense they weren't feeling bound by it because of its precedential value but, rather, out of the unspoken rule that one three-judge panel shouldn't reverse the rulings of another three-judge panel.


Could be because you look foolish if you vote "yes" on an issue then later vote "yes" again to an opportunity to revisit your previous "yes" vote.

Countdown to JT making an appeal to the Supreme Court in 10... 9... 8...

So close to getting a SCOUTS decision and nuking this "let's ban videogames!" thinktank once and for all.

I don't think the SC will review it. This isn't something that's uber controversial from a legal stand point. There's a lot of legal precident that's already on the books that states these laws are unconstitutional.

I agree the Supreme Court does like to dabble in murky waters, but that is their position after all. However, they don't like wasting time with the JTs of the world and they don't have to.

I got a fiver that says that if the SC does NOT take the case, JT will threaten to sue them.

I for one rather hope the Supreme Court doesn't take up this case. It would depress me to think that the highest court in the land, which decides cases dealing with the death penalty, abortion, and the detention of suspected terrorists, is having to spend its time debating whether we need a law to keep teenagers from playing Grand Theft Auto.

Keep wasting that tax payer money...

1. This Bill will not pass.
2. Minnesota will not stand for JT's Bullshit. Our Politicians aren't THAT stupid...except for Coleman and Pawlenty.
3. Even If this goes to the supreme court, I predict this bill to fail. Fail Epically, and to shut up these "for the Children" Idiots.
4. What is everyone worried about? This bill will get nowhere.


Minneapolis, MN.

Many others died where this is going.

The Supreme Court is almost certainly going to decline cert. even if the appeal is made.

There is no circuit split here. A circuit split does not mean 1 three judge panel in a circuit disagrees with another three judge panel in the same circuit.

It means that the 8th circuit ruled one way and the 11th circuit ruled another. Basically, the law has to be different in two different areas of the country.

In this case the law is uniform, all the circuits (for whatever reason) have decided these laws aren't ok. Even if they only decide that way because they feel bound by other precedent.

Now it is POSSIBLE that 3 judges will want the case, in which case the Court will probably take it. The so called "rule of 3" (an unofficial Supreme Court rule) says that if 3 justices want to grant cert, the court will take the case.

I just don't see it here. There is no circuit split so there isn't really anything for them to decide.

Yes...let us end this. Then these assholes will have to stop wasting the goddamn tax money!

Oh, and as for Scalia, that's just something he said without all the evidence presented. If he saw everything he might actually dissaprove of legislation, and even if he doesn't the other judges might, and that's assuming this will actually make it to the Supreme Court.


It's the Rule of Four. And it was born of the Judiciary Act of 1925 (which gave the Court previously unhad discretion to take the cases they wanted and kick the ones they didn't to the curb). And the workings of the American judicial system isn't by hard and fast formula that guarantees certain results. The Court, as I said, has discretion. Which means they can take a matter on certiorari if they want to -- split in the Circuits or not. And have done so before. And will do so again, if they care to -- I'd imagine.

@ YouDon'tKnowJack

You're right its the rule of four (my kingdom for an edit button) and it actually began with the discretionary jurisdiction granted in 1891, 1925 merely expanded that discretion (to be almost complete as to appellate jurisdiction).

That being said, the rule of 4 is not (as you said) a hard and fast rule and they are pretty stringent about taking cases.

The amount of cert petitions to the court has gone up incredibly, while the number of cases they actually HEAR has plummeted.

The odds of the Supreme Court taking a case about laws that have been struck down in multiple circuits 8 times is not likely to be granted cert. There simply isn't an issue they are likely to want to settle without there being some kind of split.

There's always a chance obviously, but the odds are slim to none they'd take this case.

The MIGHT take the case on First Amendment grounds, but they almost certainly won't because the state is the one bringing the petition (and they can't argue that THEIR first amendment rights have been violated).


How about, since I can't see A.G. Swanson not trying to get 15 seconds of fame outta this one, we wait 'til she files her cert petition and see how the Court rules? Or are you also of the opinion that she going to forego her golden opportunity to grease her transition from public service over to Big Law Firm? And maybe I don't know jack. But that fact, if so, wouldn't make your point any more or less valid, now would it?

You know, a Supreme Court case would be a silver bullet for us.


I'm not interested in an uncivil war of words with you. I'd rather conserve that energy for my war of words with Jack Thompson. But I am keenly interested in knowing how, in reaching your conclusion that the Supremes will deny cert, you resolved the seemingly inconsistent fact that Scalia's on record as saying, in essence, "Piss on the oinions of the lower Circuit courts that carding laws are unconstitutional. They're all wrong. If given the chance, I'll uphold carding laws." Again, I'm not trying to win some pissing contest. I truly am interested in knowing how your analysis resolved Scalia's clear indication that he'd relish an opportunity to reverse the rulings of the Circuits.

It's a scary thing...On one hand if we win, it's all over with the legislation, but on the other, if we lose...good lord...


Papa Midnight

@ JackDon'tKnowJack

Care to tell me we at what point I became uncivil?

Anyhow, Scalia certainly would, if given the chance. So good...there's one justice who MAY take the case. Having been privileged to speak with Justice O'Connor I can tell you that the Justices are very loath to change how they do things. So even Scalia might decide this does not meet the normal (although not-formal) requirements for cert.

So Scalia might take this case...

You still need three of:


Of those seven, the three who would most likely want to take the case are Roberts, Alito and Thomas

Now Roberts is a big fan of "Don't rock the boat, settled law." His legal theories are basically "If the lower courts agree...we shouldn't overturn..."

Well the lower courts agree right now.

Alito is something of a wild card, but would probably want to take it (so we have 2).

Thomas...well Thomas is a pure-blooded originalist. In his view everything since 1937 (including carding laws) is unconstitutional. So Thomas might WANT to take the case, but would probably vote to agree with the lower courts.

Damn keyboard...that should be "Ginsburg" obviously....god I want my new keyboard to get here


I never said you had become uncivil. But your flipping of my blog-tag from "JackDon'tKnowJack" to "YouDon'tKnowJack" caused me concern that you were perhaps setting off down the road to making ad hominen arguments.

Anyhow, I thank you for the clarification. I don't agree with your analysis, but appreciate you taking the time to detail it. And will say that Scalia's position on any given issue is, I think, the best predictor of Clarence Thomas' position on that issue, given that Thomas rarely authors any of the Court's opinions but, instead, joins with Scalia -- whether in the majority or the minority -- more than 95% of the time.

Damn you're right, I didn't mean to flip your tag, my mistake.

I totally agree that the AG will certainly file that petition. This just isn't a case I can see SCOTUS taking. That being said, they did take the Anna Nicole Smith case so who the hell knows.

Thomas joins with Scalia a lot you are correct, by Thomas usually joins with Scalia in the sense of agreeing with his ultimate "Yay or nay" response. Ususally Thomas has his own either concurrence or dissent, he agrees with the result, but the reason is totally different.

I've known some Supreme Court clerks and I wasn't kidding when I said he thinks everything post-1937 is unconstitutional. It's pretty crazy

These are the three greatest questions of the world: What is the meaning of life? Why is Sturday Night Fever such a good movie when it's essentially just a bunch of Italians dancing? Why the fuck can't these legislators quit wasting tax money on an "issue" that is dwarfed in importance by shit like whether or not baseball is more nationally relevant than bastketball. Seriously, just WALK AWAY!

I don't think the Supreme Court will even hear Minnesota's appeal. Remember that the SCOTUS refused to hear Indianapolis' appeal.

Oh, and California's appeal would go to the 9th Circuit.


That's cool. No problem.


True enough. While Thomas in the early years of his tenure did a lot of silent go-alonging, he now usually contributes a paragraph or two about why he's joining with Scalia or whichever one of the other rightists he's joining (especially if the author fails to sound their opinion in originalist jurisprudence). Perhaps his ability to pick a motivated law clerk improved over time. Or maybe he was still sulky over Anita Hill.

@ Zero beat

seconded everyone here seems to think theres no way SC would vote in favour of the game apeal instead of it ripping of the game industries balls ... overconfidence much?

@papa midnight

thank god i live in ireland where my tax dollars arn't pissed away on bullshit like this

there usually pissed on pointless bridges or draining some bog or stolen by ahern

Jesus, this is scary. I mean i'm all for a good gamble but only if the reward outways the risk it doesn't here if we lose that's it legislation will be passed video games, in some states at least, will be considered porn, buyers will be fined. And I'll go potest along with millions of other gamers.

Remember, the Minnesota (or at this point, most any state) legislature doesn't bother themselves with such petty issues such as the US Constitution.
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