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.