21 February 2009

The World's a Mess

...and I just need to rule it. Saturday sausages:

  • Of late, there have been more rumblings from the antivaccination crowd. The best response to those numbskulls is a description of the diseases in question. Better yet, a trip to a village stricken with pertussis.
  • Shark attacks were way down in 2008, which is not surprising since lawyers are having trouble finding work and aren't cruising their usual hunting grounds. Fortunately, ex-Bushies are having trouble finding jobs, too. Schade.
  • Computer use, free speech, and videogames have all been in the news lately. Just how much truly free speech will be left on the 'net if the government keeps records of internet use for two years? I've remarked on libel tourism here before; it's an interesting problem in choice of law and recognition of judgments, but the best solution is to force nations that have signed on to the UN Declaration of Human Rights to make their own domestic law consistent with it.

    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.


    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.