U.S. Supreme Court: Video Game Biz States its Case in California Violent Video Game Law Appeal

Sometime this fall, the U.S. Supreme Court is expected to review California’s appeal of lower court rulings striking down its 2005 violent video game law as unconstitutional. Yesterday, the video game industry submitted its position to the Court.

In a 41-page brief compiled by attorney Paul Smith of Jenner & Block, the game industry relies heavily on precedents set by a history of failed attempts by state and local governments to impose age-based restrictions on video games. Indeed, the game biz has never lost such a case and Smith has been their successful point man for many years. From the brief:

Despite [California’s] efforts to conjure up some argument for review of the Ninth Circuit’s decision, in reality the decision is a routine application of established First Amendment principles to a content-based ban on protected expression.

Petitioners offer no persuasive reason for the Court to review this ruling. There is no split of
[past decisions] on the questions presented. To the contrary, the lower courts are unanimous as to the constitutionality of bans on distribution of violent video games. That is unsurprising…

California was not the first state to try to restrict distribution of video games it considered too violent for minors. Such laws have proved politically popular, but every one has been struck down under the First Amendment…

Smith and his fellow attorney also dig into California’s assertion that children should be legally shielded from violent video games as they are from obscenity. California’s causation arguments, which attempt to link violent video games to violent behavior, are also taken to task.

DOCUMENT DUMP: Grab a copy of the game industry brief here (41-page PDF)…

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  1. GrlGmr says:

    Personally, I’m hoping they do take the case, and slap the **** out of it. Maybe then we won’t have to go through every state wanting to pass their own anti-video game law.

  2. Zerodash says:

    The trouble is that if games are classified as porn, as is one avenue of attack these people use, then the medium will only cater to the sleaze factor. 

  3. hayabusa75 says:

    If you were using hyperbole, I apologize, but the legal fees won’t be anywhere near the "millions" mark, and they probably won’t even approach a million dollars.  Most of the legal reimbursements have been around $150,000 average, IIRC.

    Of course, every little bit hurts when you’re flat broke…

    "De minimus non curat lex"

  4. Vake Xeacons says:

    I seriously hope you’re right. If Jenner & Block are stationed in CA, then it might offer some jobs in the legal careers, and somehow pass that onto CA’s citizens. With any luck, the gaming industry will get a hefty sum as well, most of which are here in CA as well. Yes, I can see how this might come back to us. But that is best case senario.

    Hope for the best, but prepare for the worst.

  5. JDKJ says:

    Provided you satisfy all the technical filing requirements, all Petitions for Certorari are reviewed, regardless of whether the composition of the bench has changed and whether it’s the 100th time the same Petition is being filed. Keep it up, thought, and the Court may order you to show cause why they shouldn’t hold you in contempt for frivolous filings. But that doesn’t mean they don’t have to review and rule on frivolous filings.  

  6. jedidethfreak says:

    You’re right, but if SCOTUS justices were to change again, they’d have no choice but to review the cert petition again.

    Freedom of speech means the freedom to say ANYTHING, so long as it is the truth. This does not exclude anything that might hurt someone’s feelings.

  7. JDKJ says:

    I guess technically there’s nothing stopping the State from refiling another Petition for Certiorari on the same matter but doing so, with the Court having already declined to hear the matter, is much akin to the job-seeker who’s been told, "Hell’ll freeze over before we hire your dumb ass" and keeps on sending in his resume.

  8. Arell says:

    Oh, of course they could try again.  But it would kill THIS bill, if nothing else.  They’ve been fighting to get this bill passed for 4 years now.

    Now, could they start all over with a differently worded bill?  Yes.  But quite honestly California has way bigger issues on their plate at the moment.  Things are a lot worse now than they were in 2005.

  9. JDKJ says:

    I think that if the Supremes granted certiorari, heard the State fully on the merits, then bitch-slapped them all into next week while screaming, "Why are you wasting everyone’s time and money with this nonsense?!," those idiots up in Sacramento would be huddling together the very next week, plotting the introduction of their next piece of anti-videogame legislation.

  10. jedidethfreak says:

    The only thing that would kill it permanently would be if SCOTUS took the case and ruled that the law was unconstitutional.  Deciding not to hear it does not mean they couldn’t come back later.

    Freedom of speech means the freedom to say ANYTHING, so long as it is the truth. This does not exclude anything that might hurt someone’s feelings.

  11. BearDogg-X says:

    Then again, Pee-Pee Yee and the rest of those brain-dead idiots will also think that you sent them toilet paper.

    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)

  12. PHX Corp says:

    There was a previous court case that delt with violence and media,in fact it was the very first case dealing with violence. this case was ruled that violent media is protected speech

    In Winters v. New York (1948), Justice Stanley Reed, writing for the majority, protected entertainment from infringement by ruling that "[t]he line between … informing and … entertaining is too elusive … . Everyone is familiar with instances of propaganda as fiction. What is one man’s amusement, teaches another’s doctrine” (see also Cohen v. California, 1971). That was an important ruling because Winters is one of the few Supreme Court cases that deal with the question of the effect of violence in the media. The state of New York had arrested New York City bookseller Winters under a statute that prohibited the sale of stories of bloodshed. After three arguments before the Supreme Court, the law was deemed unconstitutional on the grounds that it was too vague.


    Watching JT on GP is just like watching an episode of Jerry springer only as funny as the fights

  13. Ryno says:

    If SCOTUS passes on it will that really kill it for good? Is there anything that says California can’t try again, other than common sense? Maybe JDKJ can chime in on this one.


    Saying that Jack Thompson is impotent is an insult to impotent men everywhere. They’ve got a whole assortment of drugs that can cure their condition; Jack, however…

  14. Arell says:

    As I stated before, I almost hope the Supreme Court chooses to review this petition (remember, they can choose to do nothing).  As this brief notes, the lower courts have been unanimous in their assertion of First Amendment rights over video games, particularly since no one has successfully argued that games targeted by those laws are (legal defined as) "obscene."  So it is incredibly unlikely that the Supreme Court would go against precidence, and they would uphold the lower courts’ decisions.

    If that happened, it would pretty much stick a pin in any other politicians’ plans to try and pass video game legislation in order to garner support from family organizatons.  It would also mean that our ol’ buddy JT would have a much harder time selling his bullshit in the form of State bills that waste everyone’s time.  Hell, even the Eagle Forum wouldn’t be able to bully any Representatives into sponsoring video game legislation.

    Unfortunately, the Court is most likely to pass on this petition, having much more important issues to deal with.  But at least that would kill the California bill for good.

  15. Father Time says:

    While I have no doubt that some of them would like to do that, I highly doubt that they could.

    Look at porn, banning the sale of porn to minors has been ruled constitutional in 1968. It’s been over 40 years and despite the best efforts by the morality police it’s still legal for an adult to purchase porn.


    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.

  16. Cheater87 says:

    If this passes then polititions will soon try to have games banned from adults, then owning a violent game will be illegal. Give them an inch and they take a mile.

  17. Wormdundee says:

    It would be nice if they chose to take this bill just so they could rip the shit out of it. But really, they do have more important things to be looking at then one state’s insane quest to ban entertainment.

    Huh, when it’s phrased like that it does seem kind of important 😛

  18. gamegod25 says:

    I’d really like to know what’s going on through their heads. Your state is broke but your going to waste even more time and money fighting to pass a law which has been consistantly struck down as unconstitutional? What are they thinking?

  19. hellfire7885 says:

    Don’t bother sending one to a certain ex-and-never-to-be-again lawyer, he’ll think you sent him toilet paper.

  20. Zerodash says:

    I think it’s time to raise some $$ and mail a copy of the Bill of Rights to Yee and all the other politicians who are trying to circumvent it.  They need a reminder to stop wasting everyone’s time and tax $$.

  21. JDKJ says:

    Look at the bright side. Jenner & Block get to collect some hefty legal fees at a time when law firms are laying off associates and partners by the thousands. Maybe the positive impact to their bottom line will forestall them having to send some of their employees out to join the swelling ranks of the unemployed. Or, hopefully, Mr. Smith will spend some of that newly-acquired wealth in California. Every dark cloud has some sort of silver lining . . . if you look hard enough.

  22. Vake Xeacons says:

    It’s over. We’re screwed.

    As a gamer and a Californian, this can’t end good. If it passes, the gaming industry takes a hit. Or more likely, it won’t pass, and California goes into even greater debt due to wasted millions in legal fees.

    Whoever wins, we lose.

  23. nighstalker160 says:

    This is not going to get cert. As the ESA brief says, there is no Circuit Split, in fact there is unanimity on this issue. If the Court takes this it will only be so that they can blanket say "no more, we’re coming down"

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