Legal Expert Says California's Supreme Court Bid is Likely to Fail

May 22, 2009 -

An expert on media law has told the Christian Science Monitor it is unlikely that the United States Supreme Court will accept California's petition to review the constitutionality of its violent video game law.

Dave Kohler (left), who heads the Southwestern Law School Donald Biederman Entertainment and Media Law Institute, told the CSM:

For a variety of reasons, I don't think [the Justices will] take [California's case]. The most significant one is the fact that if you apply this [violence] standard to video games, then you have to apply it to television, movies, and pay cable shows as well.

You're talking about the central topic of many of the great works of literature throughout history.

Aong that line, the CSM takes note of the 2001 ruling by Judge Richard Posner of the U.S. 7th Circuit Court. In striking down an Indianapolis game violence statute, Posner wrote:

To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.

DOCUMENT DUMP: Read Judge Posner's decision in AAMA v. Kendrick.


Comments

Re: Legal Expert Says California's Supreme Court Bid is Likely

I think we need more people like this guy on TVs just so parents can get the right message.

 

It hate it when politicians and news reporters and family groups go for the common sence apporach when it comes to arguments against Violent Videogames or Violent Media in general.

Because common sence is only a method of belief but it does not make it right in the eyes of the law and the American Constitution.

 

TBoneTony

Re: Legal Expert Says California's Supreme Court Bid is Likely

Give this guy a break, willya? Yes, he's saying the same thing most of US are saying- the difference is that he's telling it to people who haven't said it, or may not have heard about it in the first place. Sad as it is, there are ALOT of people in the U.S. who have no idea how our judicial works- some are even misguided enough to believe that laws like these could work, and at worst, some DELUDE themselves into thinking that it's for the best, regardless of repurcussions. The only reason WE take this issue close to heart is because most, if not all, of us are gamers, and we take it upon ourselves to study the issues because it would affect US- you can't expect a person who has never touched a game in their life to look at the issue the same way.

Just because he's saying what everybody here is thinking doesn't make himany less right.

Re: Legal Expert Says California's Supreme Court Bid is Likely

Exactly. Just because he's preaching to the converted here, doesn't mean he is in general.

Re: Legal Expert Says California's Supreme Court Bid is ...

SCOTUS is about as likely to grant cert in this case as it was likely to grant it in JT's.

1) One of the reasons SCOTUS often grants cert is to resolve splits between the various circuits because federal law is supposed to be uniform.  Every federal court that's addressed the issue, however, has found these sort of restrictions unconstitutional.  And since existing federal law on the issue is already uniform, there's no need for an even more authoritative statement affirming it.

2) Short of throwing a giant monkeywrench into First Amendment jurisprudence by expanding the already narrow and reasonably well-defined obscenity exception, the only real reason I could see SCOTUS granting cert would be CA's argument that the 9th Circuit's opinion conflicts with Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (1994).  (See Pet. for Cert. 11-15)  But even a cursory reading of Turner clearly shows that CA doesn't know what it's talking about. 

Basically, CA's cert petition argues that Turner requires courts to defer to the legislature's judgment, when supported by the record, about whether the restriction will help reduce the anticipated harms; therefore, the 9th Circuit should have defered to CA's judgment, supported by the aggression studies, that restricting minors' access to violent videogames will help reduce the anticipated harms to minors.  The insurmountable flaw in this argument, however, is that Turner was applying intermediate scrutiny to a content-neutral law that required cable companies to carry local channels, 512 U.S. at 662, not strict scrutiny to a law that explicitly restricts speech based on content.  The difference is huge.  It's like changing the burden of proof in a criminal trial from "beyond a reasonable doubt" to "yeah, he probably did it."

As long as the law clerks on cert-pool duty actually read Turner, I can't see granting cert on that front either.

Re: Legal Expert Says California's Supreme Court Bid is ...

You raise a valid point which I doubt is of common knowledge: in most all cases, the Court's law clerks have more to do with a grant or denial of cert than the nine Justices do.  I suspect there's a common misconception that the Justices actually read more than 1% of the Petitions and the case law cited therein before casting their votes in Conference and that they're not relying on a one-page bench memorandum which some law clerk drafted. 

Re: Legal Expert Says California's Supreme Court Bid is Likely

Everyone already knows this Capt. Obviouse.

http://www.magicinkgaming.com/

Re: Legal Expert Says California's Supreme Court Bid is Likely

I'm glad we have these experts to tell us what we already knew.

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I LIKE the fence. I get 2 groups to laugh at then.

-------------------------------------------------- I LIKE the fence. I get 2 groups to laugh at then.

Re: Legal Expert Says California's Supreme Court Bid is ...

Not particularly--it would have no precedential value at all.

Granting cert. and issuing summary disposition is highly unlikely.  The Court will just deny the petition.

Re: Legal Expert Says California's Supreme Court Bid is ...

Why would the Supreme Court's summary upholding of a Circuit court's opinion not increase the precedential value of the lower court's opinion?

Re: Legal Expert Says California's Supreme Court Bid is ...

More to the point, do we really NEED any more precedent? How many identical cases have gone through the courts so far again, with 0 victories for the states?
 

Yes, it would be an awesome victory if the Supreme Court upheld the decision instead of just refusing to hear the case, but I hardly think it's necessary at this point.
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I'm not under the affluence of incohol as some thinkle peep I am. I'm not half as thunk as you might drink. I fool so feelish I don't know who is me, and the drunker I stand here, the longer I get.


---
I'm not under the affluence of incohol as some thinkle peep I am. I'm not half as thunk as you might drink. I fool so feelish I don't know who is me, and the drunker I stand here, the longer I get.

Re: Legal Expert Says California's Supreme Court Bid is ...

A victory for the states, no.

A victory for the politician aiming to look good in front of the "for the children crowd", yes, if a temporary one.

Re: Legal Expert Says California's Supreme Court Bid is ...

I suspect that the proponents would argue that it is precisely because we've had so many identical cases go through the courts so far that some kind of affirmation from the Supremes would be a good thing. That way, maybe there'd be less of those identical cases working their way through the courts. 

Re: Legal Expert Says California's Supreme Court Bid is Likely

Gameslaw posted that he thinks that SCotUS will either deny cert or summarily uphold the 9th Circuit's ruling:

http://www.gameslaw.net/2009/05/20/california-appeals-vsda-v-schwarzenegger-to-scotus/

Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra.

Geaux Saints, Geaux Tigers, Geaux Pelicans. Solidarity for the Saints = No retreat, no surrender. 2013 = Saints' revenge on the NFL. Even through the darkest days, this fire burns always.

Re: Legal Expert Says California's Supreme Court Bid is ...

I'd prefer a summary upholding. That, at least, adds an air of precedence to the whole thing.

Re: Legal Expert Says California's Supreme Court Bid is ...

I can't see the Supremes summarily upholding any opinion which comes out of the Ninth Circuit, if for no other reason than pure spite owing to the fact that the Ninth Circuit has created so much busy-work for the Supremes. Of all the Circuits, the Ninth has been more frequently overruled by the Supremes than any other Circuit.

Re: Legal Expert Says California's Supreme Court Bid is ...

Agreed.

If I remember correctly, Indianapolis had appealed the 7th Circuit's ruling to SCotUS, but SCotUS denied cert without comment, like they did with Thompson's case earlier this year.

Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra.

Geaux Saints, Geaux Tigers, Geaux Pelicans. Solidarity for the Saints = No retreat, no surrender. 2013 = Saints' revenge on the NFL. Even through the darkest days, this fire burns always.

Re: Legal Expert Says California's Supreme Court Bid is ...

If I predict that the Sun will rise in the East tomorrow morning, does that qualify me as an expert in astronomy?

If you really wanna impress me, predict the Super 6 Lotto numbers.

Re: Legal Expert Says California's Supreme Court Bid is ...

If he could predict lotto numbers he probably wouldn't be writing for newspapers.

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Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it's over they have the same positions they started in.

---------------------------------------------------- Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it's over they have the same positions they started in.

Re: Legal Expert Says California's Supreme Court Bid is Likely

I think I speak for most when I say...

No shit Sherlock!!!

 

All this shielding and rubber padding is going to further wussify the country.

 
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Has a video game ever made you so mad you broke the controller?:

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Matthew Wilsonthat kind of system only works when most people (around 70 to 80 percent ) do not need to work.07/11/2014 - 1:21am
TechnogeekConjured up by who, though? If by the players, then it's not really "on a whim" since they're kind of putting work into it. If you mean the developers/government, then hello and welcome to monetary sovereignty.07/11/2014 - 12:34am
MechaTama31I'm just saying, when everything of value can be conjured up at a whim, that's not an economy. That's a fantasy.07/11/2014 - 12:15am
TechnogeekHonestly, though, what I find most thought-provoking about the article isn't the guaranteed minimum income aspect at all, but a more fundamental point: that we treat poverty as a moral failing on the individual, rather than a design flaw in the system.07/10/2014 - 11:53pm
TechnogeekOr, if your concern is that people won't even bother to work at all if their basic needs are met...well, let me put it this way: do you really want people like that in the workforce anyway?07/10/2014 - 11:51pm
TechnogeekAlso, you raise a valid question, but I'd argue that as things stand we're artificially limiting the amount of "gold/silver" that could be produced. The whole "work a job you hate to pay the bills" thing meshes poorly with the entreprenurial spirit.07/10/2014 - 11:49pm
TechnogeekSeriously, though, it looks at how in-game economies work and what lessons can be applied to reality, focusing primarily on multiple currency systems. Such systems do exist in real life (food stamps, for example), although generally aren't seen as such.07/10/2014 - 11:43pm
MechaTama31Or to produce the gold and silver, for that matter?07/10/2014 - 11:42pm
MechaTama31But in seriousness though, the F2P games can conjure up all the "valuables" out of the ether. Are there going to be enough people going for the "gold" and "silver" to actually produce the necessities the "free energy" is supposed to cover?07/10/2014 - 11:39pm
TechnogeekHey, it works for Wall Street.07/10/2014 - 11:36pm
MechaTama31We should base our real economy on something that is reviled as a soul-sucking scourge? ;)07/10/2014 - 11:25pm
TechnogeekRelevant to this website's stated focus: an argument for a guaranteed minimum income using F2P games to illustrate how and why it could help. https://medium.com/@gthoreau/game-socialisme-6312268d469507/10/2014 - 8:28pm
ZenOk, so yeah...it's kind of a lie...but I HAD to go with "Nope. I'm zen." lol. Only broke one controller myself (PS3) on a playthrough of Uncharted that got frustrating.07/09/2014 - 10:38pm
MechaTama31I am not proud of this, but I had to select the "multiple times" option. Not for the same game, but I went through several controllers (particularly dreamcast ones. fragile, maybe?)07/09/2014 - 6:52pm
Andrew EisenI'd say breaking a handheld out of anger counts (even if it's just the hinge). Likewise, I'd say busting a keyboard or mouse counts so long as you were playing a game at the time.07/09/2014 - 12:28pm
ConsterAnd since there happened to be (without me realizing) a towel which broke the fall resulting in 'only' a damaged hinge, would that be option 2 or 4?07/09/2014 - 12:23pm
ConsterAbout the most recent poll: since the "controller" for the DS is basically part of the DS, does throwing my DS against the floor because Mario Basketball cheats count?07/09/2014 - 12:22pm
Sleakersaw this on Forbes, thought it was pretty good: http://www.forbes.com/sites/timworstall/2014/06/03/if-comcast-and-time-warner-dont-compete-then-why-shouldnt-they-merge/07/08/2014 - 9:09pm
Adam802the Sun is claiming games are as addictive as herion: http://www.eurogamer.net/articles/2014-07-08-the-real-story-behind-the-suns-gaming-as-addictive-as-heroin-headline07/08/2014 - 6:43pm
ZippyDSMleeIt takes 2-6 days to transferfunds to your bank, it can take up to 30 days for ebay to give you moeny from a sale. But lord to spend it its instant!07/08/2014 - 10:50am
 

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