Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, April 26, 2010

Supreme Court Will Hear California Video Game Statute Appeal

The Supreme Court has granted cert in Entertainment Software Association v. Schwartzenegger, the violent video games case. The Ninth Circuit had struck down the statute at issue in this case, California Civil Code Sections 1746-1746.5.

We hold that the Act, as a presumptively invalid content based restriction on speech, is subject to strict scrutiny and not the “variable obscenity” standard from Ginsberg v. New York, 390 U.S. 629 (1968). Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion. Accordingly, we affirm the district court’s grant of summary judgment to Plaintiffs and its denial of the State’s cross-motion. Because we affirm the district court on these grounds, we do not reach two of Plaintiffs’ challenges to the Act: first, that the language of the Act is unconstitutionally vague, and, second, that the Act violates Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment.

Courts in other jurisdictions have struck down similar statutes. See for example Entertainment Software Association v. Blagojevich, 469 F. 3d 641 (7 Cir. 2006). Here's a link to the ESA's statement on the Supreme Court's grant of cert.

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