Video Software Dealers Assoc. v. Schwarzenegger: Governor Schwarzenegger's Video Game Act Terminated by the Ninth Circuit

Digest Commentary First Amendment

Video Software Dealers Assoc. v. Schwarzenegger

February 20, 2009, Case No. 07-16620

The United States Court of Appeals for the Ninth Circuit affirmed the order of the United States District Court for the Northern District of California, enjoining the enforcement of an Act that imposed a mandatory labeling requirement for all "violent" video games and prohibited the sale of such games to minors. 

The Ninth Circuit held that the Act posed a presumptively invalid content-based restriction on speech in violation of the First Amendment of the United States Constitution. The Ninth Circuit also held that the Act's labeling requirement constituted unconstitutionally compelled speech because it did not require disclosure of purely factual information, but required the carrying of the State's opinion as to the nature of the video game.  In so holding, the Court noted that "minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them."

Briefs are available here. 

The Wall Street Journal highlights that the state, in defending the law, argued that violence and sex should be governed by analogous prohibitions: the government can prohibit the sale of explicit pornography to minors, and so it should also be able to limit the sale of ultra-violent video games.

Ars Technica notes that should this case reach the Supreme Court, it is unlikely that the Court will discover anything that the court of appeals failed to notice. 

California Civil Code §§ 1746-1746.5 (the "Act") restricts the sale of violent video games to minors, and imposes a labeling requirement on such games. Video Software Dealers Association and Entertainment Software Association filed for declaratory relief seeking to invalidate the Act on the grounds that it violated rights guaranteed under the First Amendment. The District Court granted summary judgment for the plaintiffs.

In upholding the District Court's order and striking down the Act, the Ninth Circuit declined to "boldly go where no court has gone before" by extending the "variable obscenity" ("obscenity as to minors") standard set forth in Ginsberg v. New York 390 U.S. 629 (1968), which upheld the prohibition of sale of sexually-explicit material to minors that was defined by statute as obscene because of its appeal to minors. In doing so, the Court restricted Ginsberg's application to sex-based expression, not expression containing only violent content. After declining to expand Ginsberg, the Court reviewed the Act in accordance with the presumption of invalidity applied to content-based restrictions, and finally determined that the State's asserted interest in "preventing psychological or neurological harm to minors" was insufficient to pass strict scrutiny.

According to the Court, the government's interest is compelling only when "the recited harms are real, not merely conjectural and [ ] the regulation will in fact alleviate these harms in a direct and material way." The Court found the research proffered by the State to support its assertion of harm insufficient because the research suggested only correlation between actual psychological harm and violent video games and not causation. Furthermore, the Court found that even if there was a direct causal relationship between the asserted harms and violent video games, the State failed to demonstrate that the Act was narrowly tailored to achieve the State interest.

Turning to the question of labeling, the Ninth Circuit noted that although commercial speech is accorded less protection than other speech, the Court has only upheld compelled commercial speech where the State required inclusion of "purely factual and uncontroversial information." The label required by the Act did not provide factual information but rather compelled speech concerning the government's opinion about the content of the video game. This type of compelled speech is cannot pass constitutional scrutiny.