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Scrivener's Error| null | |
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Scrivener's Error |
Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting. |
link to: 22:45 [GMT-6]
...and I just need to rule it. Saturday sausages:
And that leads us to videogames, in the fascinating matter of Video Software Dealers Ass'n v. Schwarzenegger (yes, Ahnold). A California law restricted sale of "overly violent" videogames to minors, but was just struck down in a needlessly-long opinion (PDF) from the Ninth Circuit Court of Appeals. How long did it need to be? This would have been sufficient:
Newly-enacted California Civil Code §§ 1746–1746.5 imposes restrictions and a labeling requirement on the sale or rental of violent video games to minors. We need go no further than the face of the Act to discern that it constitutes a content-based restriction on speech. "Content-based regulations [of speech] are presumptively invalid." R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). Although the State may properly provide restrictions on actually harmful communications to minors, it may only due so — outside of the narrow exception of obscene, sexually explicit material, Ginsberg v. New York, 390 U.S. 629 (1968) — through the least-restrictive means available, narrowly tailored to the factual interest. United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000). That factual interest must be sound, and not based on mere conjecture; that interest must be expressed in "reasonable inferences based on substantial evidence. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997). For the well-considered reasons stated in the decision below, the statute fails each and every one of these elements.
The statute fares no better when considered as compelled speech by the dealers, who are forced to label purportedly violent games with a reference to the statute. Compelled speech must be restricted to purely factual matters, Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985), and does not extend to forced expression of a mere opinion with which the vendor disagrees, United States v. United Foods, Inc., 533 U.S. 405, 410 (2001). As noted above, and detailed by the District Court below, the Act's labelling requirements do not even come close to making a factual statement; they are, instead, an expression of opinion by individuals unfamiliar with news broadcasts on September 11, 2001.
Affirmed.
Any more than that needlessly dignifies the statute... and the invidious motives of its sponsors.
In non-sausage news, I've finally got a new server up and running; I've recovered most of the files, so perhaps I'll post a couple of longer pieces that have been festering percolating for a while now. That leads to today's musical selection.
Labels: civil rights, internet, jurisprudence, law practice, mass media, politics, science
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All material © 2003–12 except where otherwise indicated. All rights reserved. This blawg does not use the Creative Commons License, although I'm usually pretty good-natured about permissions for attributed reuse.
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Sausages?
Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.
I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.
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