Now that California has asked the U.S. Supreme Court to consider whether its 2005 violent video game law is constitutional, President Obama's recent nomination of Judge Sonia Sotomayor to the Court takes on added significance for the video game industry.
That being the case, where does Sotomayor stand on free speech issues? Her record appears to be mixed, according to a source with knowledge of the legal issues involved in the California appeal.
On the plus side for the video game industry, Sotomayor dissented from a majority of her colleagues on the 2nd U.S. Circuit Court in Pappas v. Giuliani. In her dissent, Sotomayor wrote that an NYPD officer should not have been fired for responding, off-duty, to an e-mail request for a charitable donation with a racist and bigoted language. As SCOTUSblog reports:
She acknowledged that the speech was 'patently offensive, hateful, and insulting,' but cautioned the majority against 'gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.'
On the other hand, Fordham Prof. Paul Levinson - who has argued free speech issues with Jack Thompson - writes that Sotomayor should be disqualified from the High Court over a what he calls a "bad 1st Amendment Decision."
In the case, Doninger v. Niehoff, Sotomayor and her 2nd Circuit colleagues supported high school officials who barred a student from holding class office after the young lady referred to school officials as "douchebags" in an off-campus blog. While the courts have traditionally given school officials some degree of leeway in maintaining order, Levinson remains concerned about Sotomayor:
[Retiring Justice] David Souter was a surprise to the Republicans who appointed him... His vote made a difference on the side of progressive and humane issues in many a Supreme Court decision.
We cannot afford or risk a Souter in reverse with this new appointment - a Justice who seems to have a progressive record, but who turns out to have an insufficient passion for protecting and strengthening the freedoms that make our country great.
Meanwhile, the California appeal has been docketed by the Supreme Court. The video game industry has until June 22nd to submit its response to California's petition.
UPDATE: Paul Smith of Jenner Block, who has been the video game industry's lead attorney in challenging video game legislation over the years, discusses the cases mentioned here on Talk Radio News and describes Sotomayor as:
She's a careful person who could go either way, but is focused on not just broad doctrine but how the doctrine applies to particular factual situations. Certainly that's true in the First Amendment free speech area.