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.

---

With the first link, the chain is forged.

--- With the first link, the chain is forged.

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.

---

http://zippydsm.deviantart.com/

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.

---

http://zippydsm.deviantart.com/

 
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AvalongodAgree with Quiknkold. @Mecha...if that worked we would have figured out how to prevent these long ago.10/24/2014 - 11:32pm
MechaCrashUnfortunately, you have to focus on the perpetrator to figure out the whys so you can try to prevent it from happening again.10/24/2014 - 10:55pm
quiknkoldpoor girl. poor victims. rather focus on them then the shooter. giving too much thought to the monster takes away from the victims.10/24/2014 - 10:15pm
Andrew EisenFor what it's worth, early reports are painting the motive as "he was pissed that a particular girl wouldn't date him."10/24/2014 - 10:12pm
quiknkoldwell then I suck as a man cause I ask for help when necessary :P10/24/2014 - 10:07pm
Technogeek(That said, mostly I was making the smartass evopsych comment because your post seemed like the kind of just-so story that has come to dominate 99% of its usage.)10/24/2014 - 10:04pm
TechnogeekHell, Liam Neeson built his modern career around it. Cultural factors likely play a far greater role than you appear willing to admit.10/24/2014 - 10:03pm
TechnogeekSeriously, though, the idea of "because women are protectors and that's why they never commit school shootings" is, at best, grossly overreductive. There's nothing inherently feminine about being willing to kill in order to protect one's offspring.10/24/2014 - 10:03pm
MechaCrashThe "toxic masculinity" thing refers to how you have to SUCK IT UP AND BE A MAN because seeking help is seen as weakness, which means you suck at manliness, so it builds and builds and builds until something finally snaps.10/24/2014 - 10:01pm
quiknkoldthere, I'm done. And thats what Christmas is all about, Charlie Brown10/24/2014 - 9:54pm
quiknkoldand I am not spouting Evopsych, technogeek. tbh I never heard the phrase till you said it. I'm going off my observations.10/24/2014 - 9:54pm
quiknkoldmoreover, the guy who did this isnt even white. He was native american according to the news report I read. Also that he went for a specific target. That's a much different picture than a certain Sandy Hook guy who will not be named10/24/2014 - 9:53pm
quiknkoldbut I am also certain nobody in their right mind is committing these shootings singing the Machoman song. these are sick individuals who have given up on life10/24/2014 - 9:51pm
Technogeekevopsych lol10/24/2014 - 9:49pm
quiknkoldWhen you suffer from mental illness, youre more likely to go by instinct. yes. I came off as sexist.10/24/2014 - 9:46pm
quiknkoldmore on somthing they are fixated on. Post Partum Depression is an example. This is why a woman is less likely to go off on a rampage.10/24/2014 - 9:44pm
quiknkoldA Mother will fight to protect her children or her mate. This does not mean they are any different then males when it comes to destruction and mental illness. A Woman has just enough opportunity to be sick like a man. The difference is they will focus10/24/2014 - 9:43pm
quiknkoldsociologist. I've spent years observing and I've come to the conclusion that a big reason men and women are different is because Women are Protectors. Women wont wantonly kill because they are all about protecting what they care about. They are wired this10/24/2014 - 9:43pm
james_fudgeYeah having a penis probably doesn't have a lot to do with it10/24/2014 - 9:32pm
quiknkoldIts Mental Illness. Nobody who is actually sane would willingly walk into a school and commit that. its Mental Illness topped with Teenage Angst. and I'm going to say something that may be construed as sexist, but I dont mean it as such. I mean it as a...10/24/2014 - 9:29pm
 

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