Technically Legal

2 Comments on “Episode 48: Rated M for Mature”

1. Graziella says:

   May 7, 2010 at 3:20 pm

   On the topic of the supreme court taking cert in Video Software v. Schwarzenegger, as far as I am aware these laws are actually far from common, or rather, many states have tried to pass such laws only to be shot down by every circuit that has encountered them as unconstitutional on first amendment grounds. The state’s strategy in these cases has been to try to apply the variable obscenity line of cases to violent content, but none of the laws has survived a challenge as far as I know, and the circuit courts just aren’t buying the “violence can equal obscenity for minors” argument the states are making.
   The troubling question is that given the general agreement among the circuits on the issues these cases have raised, why is the court taking this case? The court has already arguably gone down the road of sanctioning content based restrictions on speech for minors in Morse (aka Bong Hits for Jesus), and despite the obvious differences, especially with the school context of Morse, I think that it is far more likely that the court is going to disagree in some significant way with the direction the circuits are going. I actually suspect they might end up viewing the government interest as concrete rather than abstract, the states have tried to rely on studies showing a correlation between violent video games and aggressive behavior to this end, but I may be off the mark, I would suspect the court would have required in the past (as the circuit courts have on this issue) studies showing causation not mere correlation in order to satisfy strict scrutiny. So in some ways its troubling to see the court step in in this case, but it should be really interesting to see what happens.
   Anyway, sorry to go on for so long but I like these issues I’m happy to see them discussed!
   • Ben Snitkoff says:

     May 10, 2010 at 9:15 am

     There actually is a split, but it’s not directly on point. There are several State courts that have taken the wholly unreasonable position that video games aren’t expression. Massachusetts is one of them. Granted, it was a case from the 1980s, but even Pong or Pac Man sould have been found to be expression, even if it’s not particularly insightful expression.

     I still don’t think the Supreme Court would let this law hold, especially after Stevens. I think it’s more likely that this is something that’s come up again and again, some states have the wrong idea about what’s going on, and the Supreme Court just wants to weigh in on a topic they haven’t addressed before. Time will tell.

     Thanks for listening.