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June 27, 2011
Supreme Court End Of Term - First Amendment, Jurisdiction, And A Smidge More
The Supreme Court ended its term this morning by releasing some of the most anticipated rulings of the year. Let’s start with Brown v. Entertainment Merchant’s Assn. (08-1448). That case concerned a law passed by California that restricted the sale or rental of violent video games to minors. The District Court said the Act violated the First Amendment and the Ninth Circuit agreed. Every District Court and Court of Appeals to have faced this issue from other states reached a similar conclusion. The Supreme Court agreed that the law violated the First Amendment.
The Court, with Justice Scalia writing for the majority, states that video games qualify for First Amendment protection. There are a number of exceptions to speech that do not enjoy First Amendment protection, such as obscenity, incitement, and fighting words. Following its precedent in last term’s Stevens case (videos depicting animal cruelty cannot be banned) and others, the Court concludes that the legislature cannot create new categories of speech considered too harmful to tolerate. Children have First Amendment rights and only in narrow and well-defined circumstances can government bar public dissemination of protected materials to them (the library filter case notwithstanding, I add, though Justice Scalia did not).
The opinion further deals with studies linking the viewing of violent behavior to aggressiveness. The Court notes that the effect on children is the same compared to other media, including violent cartoons such as those featuring Bugs Bunny and the Roadrunner-Coyote encounters. Justice Scalia counters the argument of Justice Alito that the message in some of the games is not merely the violence, but to whom the violence may be directed toward, such as women and ethnic groups. As offensive as the message may be says Justice Scalia, that is not a reason to ban or restrict it. The goal of protecting children is laudable, but this law is not the way to do it.
Justice Scalia wrote the opinion for the Court which was joined by Justices Kennedy, Ginsburg, Sotomayor , and Kagan. Justice Alito filed an opinion concurring in the judgment, joined by Chief Justice Roberts. Justices Thomas and Breyer each wrote dissenting opinions.
Justice Thomas’ dissent is particularly interesting as he starts from the premise that an original understanding of First Amendment includes a (then) contemporaneous understanding that minors may not access speech without going through the parents. He cites texts from the time of the founding and before, such as the writings of Cotton Mather (“Children should not be left to themselves . . . to do as they please; . . . not being fit to govern themselves”; C. Mather, A Family Well-Ordered 38 (1699) and writings about the times of the founding. Justice Thomas endorses the view of the Puritan tradition where fathers rule families with absolute authority, and where parents absolutely controlled what materials children would read. He also notes the practice where the father could assign the services of the minor son and be entitled to the wages of that son. From that perspective, laws limiting the speech that a child could receive do not infringe the founders’ understanding of the First Amendment. Justice Scalia points out that Justice Thomas cites no cases for his views. I can say that a reading of the dissent gives Justice Scalia the look and feel of a rational progressive, something that would probably scare him. I have to ask, has Justice Thomas seen what’s on the Internet these days? Oh wait.
Justice Breyer’s dissent is notable as the last part consists of an extensive bibliography of writings that suggest a link to aggression and violent video games. Good work on whoever prepared the list for him.
The next case, Goodyear Dunlop Tires Operations, S.A. v. Brown (10-76), concerns the type of contact an out of state and country defendant must have with the forum that would sustain jurisdiction to pursue claims against it. North Carolina residents whose sons dies in a bus accident outside of Paris, France, filed suit for wrongful death. The allegation was tire failure and the defendants included Goodyear USA, an Ohio corporation, and three subsidiaries organized and operating in Luxembourg, Turkey, and France. The tires in question are not manufactured for the U.S. market, nor do any of the subsidiaries have any business activities, assets, or transactions in North Carolina. Occasionally, some of the tires from the foreign manufacturers are distributed in North Carolina by Goodyear USA affiliates. The North Carolina courts allowed general jurisdiction on a stream-of-commerce basis.
A unanimous court reversed, stating that there was not the kind of systematic general business contacts that allowed North Carolina to exercise jurisdiction. The cases the North Carolina courts relied upon were those where injuries happened with the state. Supreme Court precedent denies jurisdiction in situations such as the one that developed in this case. See Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408 (1984).
A similar issue was raised in J. McIntyre Machinery, Ltd. V. Nicastro (09-1343). In that case, Nicastro injured his hand while using equipment manufactured in England by J. McIntyre Machinery, Ltd. He filed suit in New Jersey where the accident occurred. The New Jersey courts upheld jurisdiction because a U.S. distributor agreed to sell J. McIntyre equipment in the United States, several company officials attended trade shows here, though none in New Jersey, and at least one machine ended up in New Jersey. The Court mustered enough justices to reverse the decision to exercise jurisdiction but not enough for an opinion. Justice Kennedy wrote an opinion joined only by Chief Justice Roberts and Justices Scalia and Thomas.
Justice Kennedy wrote for the plurality that J. McIntyre did not engage in enough New Jersey activities that revealed intent to invoke the benefit or protection of that state’s laws. A stream-of-commerce doctrine cannot displace that rule. Justice Kennedy cited precedent that was equally fractured as the basis of his opinion. Justice Breyer, joined by Justice Alito, agreed that New Jersey could not assume jurisdiction based on precedent. A single, isolated sale does not qualify in addition to the other factors used as justification. Justice Breyer does not believe this is a case to make a broad pronouncement on jurisdictional rules. Justices Ginsburg dissented, joined by Justices Sotomayor and Kagan.
The next case, Arizona Free Enterprise Club’s Freedom Club Pac v. Bennet (10-238), was another hotly anticipated case. It concerns Arizona’s limitations placed on personal funding by candidates in exchange for matching funds from the State meeting that of the opponent’s. On suit, the District Court entered an injunction against enforcing the matching funds provision. The Ninth Circuit reversed, holding that the provision was minimal and advanced Arizona’s interest in reducing political corruption.
Chief Justice Roberts, writing for himself and four other Justices, struck down the law as burdening political speech in a way that is not justified by Arizona. The Court used its precedent in Davis v. Federal Election Comm’n, 554 U. S. 724 (2008) and others as the basis. Arizona argues that the law creates more speech, not less. The Court says that is still problematic as it is only the speech of publicly financed candidates that increases. Justice Kagan dissented, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.
The last case is a short, Per Curiam opinion dismissing a case as moot. The facts in the case of United States v. Juvenile Male (09-940) are such that the Court of Appeals had not authority to enter a judgment because it had no live judgment before it. The issue in the case was whether the Sex Offender Registration and Notification Act (SORNA), 42 U. S. C. §16901 et seq., violated the Ex Post Facto Clause. Federal law is not at issue here as the juvenile has reached the age of 21. See you for all the fun starting up again next October. [MG]