Professor: SCOTUS Should Use Schwarzenegger Case to Fix its “Extreme” First Amendment Stance

November 17, 2010 -

In an opinion piece appearing in the Los Angeles Times, Pepperdine University constitutional law professor Barry McDonald argues that the Supreme Court should use Schwarzenegger vs. EMA to “adjust its severe approach to content-based regulations of speech.”

McDonald opined that the California law in question “puts teeth” in the attempt to stop kids from buying violent games, and he notes that the plaintiffs in the case “are not minors who are eager to receive the ‘speech’ in question,” but game manufacturers themselves.

He continued:

Despite the fact that it seems the 1st Amendment is being used to protect the manufacturers' purses rather than their ideas, lower courts across the country have uniformly invalidated such video-game restrictions on free-speech grounds.

These lower courts, according to McDonald, were forced to apply a “a completely unsatisfying set of 1st Amendment rules that the modern Supreme Court has developed.” Rules that make it “almost impossible for state and local governments to address legitimate harms posed by certain types of expression.”

McDonald referenced a 1990-era opinion from former Justice Sandra Day O’Connor, in which she wrote that the Court’s “severe approach to content-based regulations of speech” led to regulations being rejected, even though “common sense may suggest that they are entirely reasonable.”

The Professor stated:

The court should heed O'Connor's wishes now and use the video-game case to engage in such a confrontation. It should rethink its approach, allowing state and local governments more latitude to make reasoned determinations that certain types of speech pose a heightened risk of harm.

Without a rethinking of its fundamental approach to such laws, the Supreme Court's extreme 1st Amendment rules will continue to breed extreme speech that can cause harm, and our representatives will remain powerless to address it.

In case you missed it, the New York Times, in its own editorial published last week, argued against the California law and opposing legislation that would narrow the First Amendment.

Comments

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

Whatever happened to the days of " I despise what you say good sir, but will defend to the death your right to say it"?

I guess the same thing that happend to "We do not torture".

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

Translation:

"That damn consititution...  our attempts to get around it have not been nearly as sucesful as we want! Breaking it just a little is too extreme! We need to be able to break it whenever we feel like it! But not those other people."

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

McDonald is a blithering idiot. Why fix what isn't broken?

Besides that, the only fixes the Supreme Court need to do is reverse Pacifica and maybe even reverse Ginsberg v. New York.

Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra. Hell will stay frozen over for quite a while since the Saints won the Super Bowl.

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: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

If parents don't want their kids playing violent games they have two options: 

 

1) Don't let them have a video game system.

2) If you do let them have a video game system, how about you use the frakin' parental controls lockout features that can prevent the console from playing M-rated games?!?!

 

Both work extremely well, and don't require a governmental body to waste money trying to protect your kid from crap you don't like.  Because that's YOUR job as a parent.  If you weren't up for it to begin with, maybe you shouldn't have had kids in the first place.

Can't sanitize the world for your children.

 

"You know what I wish? I wish all the scum of the Earth had one throat and I had my hands about it."

"You know what I wish? I wish all the scum of the Earth had one throat and I had my hands about it."

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

Barry McDonald's an idiot. There's more inaccuracies in his statements that I even dare to count or address. I wish he was the lead attorney for the state in this matter, our victory would be assured by his fuckstickery.

In the words of the great Stan Lee: 'Nuff said.

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

I thought the Plaintiffs would be California, seeing as they are the ones making the appeal against their law which was struck down?

That said, it should also be noted that those defending Freedom of Speech are representing both Industrial and Consumer groups such as the ECA, but hey, why let factuality get in the way of enforcing your own world view on other people?

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

It's always scary when an "intellectual" (professor) argues for censorship and doesn't see the inherent risks of strangling Free Speech.  I'm curious which forms of expression he finds "dangerous"?  Are these forms of expression readily agreed upon by everyone as wrong or dangerous, because that would make censorship really easy.  Or are they only dangerous in the eyes of a certain subset of people?

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

Wait, actually FOLLOWING the first amendment is "extreme?"

Watch how this will still not be seen by the liberals on GP of how liberalism isn't the ardent defender of gaming that they seem to think it is.

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Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

If memory serves, Pepperdine is a fairly conservative institution

 

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

Yeah it is.  Ken Starr was the dean of their law school.  If the fact that they employed someone like him doesn't scream Conservative, I don't know what does.

The again, David Gerrold also taught scriptwriting there, and he's far from Conservative. But I guess he needed the money.

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

If only Gerrold had also taken a class in "Finishing your goddamn series" while he was there...  :(

I've been waiting for a conclusion to the Chtorr series since I was in middle school.  More than half my life ago!

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

McDonald was also a law clerk for conservative former chief justice William Rehnquist. he's definitely a conservative. 

Its what conservatives believe, to interpret more narrowly (conservatively duh), and give states more power ("states rights") 

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

The consentusion is to extreme and DATED to follow.Thus government has abandoned it. . .  didnt you know this?


I have a dream, break the chains of copy right oppression! http://zippydsmlee.wordpress.com/2010/05/21/cigital-disobedience/


Copyright infringement is nothing more than civil disobedience to a bad set of laws. Let's renegotiate them.

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Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

Your shit stinks as well.  Because we know the cult-of-family-values, gestapo theocrat, conservatives is damn sure not a defender of gaming.

-Ultimately what will do in mankind is a person's fear of their own freedom-

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

I think we've settled, to most forumgoers' satisfaction, that there are pro-censorship and anti-censorship types on both sides of the ideological divide.  It's not a partisan issue -- you're the only guy in the thread who's making it one.

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

I seem to recall a number of people stating that they are well aware that many of these laws have been written by Democrats and that this is not a liberal vs conservative issue. This is an agenda driven issue by people who want the government to control every aspect of our existence.

E. Zachary Knight
Oklahoma City Chapter of the ECA
http://www.theeca.com/chapters_oklahoma

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

“almost impossible for state and local governments to address legitimate harms posed by certain types of expression.”

Riddle me this, McDonald: What "legitimate harms"?

 

Andrew Eisen

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

Right on. Also; “common sense may suggest that they are entirely reasonable.”

I suppose so, if by 'common sense' you mean ignorance as to what the law actually entails. The underlying concept (that kids shouldn't be allowed to buy M-rated games) is reasonable; the vague, constitutionally questionable and likely ineffectual law based upon it is what we object to.

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

"The underlying concept (that kids shouldn't be allowed to buy M-rated games) is reasonable"

No, it's not.  What reason is there that kids should not be allowed to buy M-rated games?

 

Andrew Eisen

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

The clue is in the name; M-rated. 'Not intended for kids'. It's up to parents to decide if their children are emotionally mature enough for an M-rated game to have no affect on their behaviour, so it's their decision to allow their child the game.

Maybe you think that isn't sufficient reason for the retailer to refuse sale to the child without a parent present, in that case we'll have to disagree. My concern is that it shouldn't be a legal requirement since it's a matter of personal responsibility.

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

I believe that has also been one of the key reasons these laws are being struck down. The states who support these laws are completely incapable of providing evidence of actual harm.

 

Edited to remove excessiving "that-ing"

E. Zachary Knight
Oklahoma City Chapter of the ECA
http://www.theeca.com/chapters_oklahoma

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

Exactly.  If the state can't show that there is harm being done or that its law would do anything to alleviate said harm, then why should this law go into effect?

Here's what it comes down to: there is no evidence that playing violent games is harmful to children and this law would not prevent them from doing so even if there was.  Children have the right to consume whatever video games their little heart's desire.  The only people that can squelch that right are their parents or legal guardians.  Not me, not you, and certainly not the government.

 

Andrew Eisen

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

Usually boils down to the fact that people are more than willing to let the government squelch riughts they themselves do not use.

Re: Professor: SCOTUS Should Use Schwarzenegger Case to Fix ...

So the government should get into banning the dissemination of information just cause some people do not like it?

 

Get out the black boots ,free speach who needs it surely not the drones!


I have a dream, break the chains of copy right oppression! http://zippydsmlee.wordpress.com/2010/05/21/cigital-disobedience/


Copyright infringement is nothing more than civil disobedience to a bad set of laws. Let's renegotiate them.

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Matthew WilsonI think he was talking about wanting a real one.05/29/2015 - 7:19pm
Andrew EisenKarp - A real Conker game or are you content with that Project Spark thing?05/29/2015 - 7:18pm
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Wonderkarp80% complete? Well. If there was ever a reason to make me buy a Xbone, that would be it. That and Conker05/29/2015 - 5:24pm
Matthew Wilsonif true, a very smart move.05/29/2015 - 5:24pm
Adam802Huge if true: http://www.ign.com/articles/2015/05/29/silent-hills-reportedly-an-xbox-one-exclusive?abthid=5568e08e738dff6a4f00002305/29/2015 - 5:19pm
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MattsworknameThis kinda thing is why I have a very negitive view on things like region locking and games not being released universially. it creates problems like this where the game gets reduced as a result .05/29/2015 - 4:41pm
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Andrew EisenSamurai Warriors Chronicles 3 will not include the Nintendo-themed costumes when it hits the Vita in NA and EU next month.05/29/2015 - 4:32pm
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