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

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.

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  1. 0
    Kajex says:

    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.

  2. 0
    TBoneTony says:

    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.


  3. 0
    JDKJ says:

    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. 

  4. 0
    NinjaJustice says:

    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.

  5. 0
    DarkSaber says:

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


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

  6. 0
    hellfire7885 says:

    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.

  7. 0
    JDKJ says:

    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. 

  8. 0
    Alex says:

    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.

    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.

  9. 0
    Father Time says:

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


    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.

  10. 0
    JDKJ says:

    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.

  11. 0
    JDKJ says:

    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?

  12. 0
    Macknzie says:

    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.

  13. 0
    JDKJ says:

    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.

  14. 0
    BearDogg-X says:


    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.

    Proud supporter of the New Orleans Saints, LSU, 1st Amendment; Real American; Hound of Justice; Even through the darkest days, this fire burns always

    Saints(3-4), LSU(7-0)

  15. 0
    BearDogg-X says:

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

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

    Proud supporter of the New Orleans Saints, LSU, 1st Amendment; Real American; Hound of Justice; Even through the darkest days, this fire burns always

    Saints(3-4), LSU(7-0)

  16. 0
    hellfire7885 says:

    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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