Supreme Court Considers "California Office Of Censorship"

The U.S. Supreme Court today heard arguments from the state of California defending California’s move to outlaw the sale of violent video games to minors. The California law imposes a $1,000 fine on anyone who sells or rents a “violent video game” to a minor.

The law was challenged by an industry trade group, the Entertainment Merchants Association, who argued in the Court today that video games are protected by the First Amendment. Unlike obscenity, threats, child pornography, and other expressions that have a long history of being regulated, the challengers argued, exposure to violence has traditionally been controlled by parents instead of the government. They urged the Supreme Court to refuse to carve out another exception to the First Amendment for violence.

The lawyer for California tried his best to compare violent video games to obscenity, since the Supreme Court in 1968 said it was possible for something to be obscene for minors but not for adults. He also pointed out that violent video games—in which a child takes control and can be the person committing the virtual violence—are unlike any other medium.

Most of the Justices on the Court seemed unwilling to accept the argument that video games were different. Several Justices expressed concern that allowing regulation of video games would open the door to regulation of comic books, rap music, movies, the Internet, and other forms of entertainment that were condemned as harmful to minors when they were first developed.

Only Justice Samuel Alito seemed to have made up his mind to support the California law, at one point mockingly saying that “Justice Scalia would like to know … what James Madison would have thought about video games.” Alito also sarcastically asked the law’s challengers whether they thought there was no problem with minors having access to violent video games, since no teenagers had money to buy games, no children had televisions in their rooms where they could not be monitored, no teenagers were ever home without adult supervision, and it was impossible to bypass parental controls on game systems. Justice Alito was the sole dissenter in the U.S. v. Stevens decision earlier this year, where the Supreme Court said that dog fighting videos were protected by the First Amendment.

California’s harshest criticism came from Justice Antonin Scalia, who brought up the violence in Grimm’s Fairy Tales in the first minutes of the argument today. Scalia also expressed concern for the video game makers who would have to decide ahead of time whether their game would be violating the law. The California legislature used language from the Supreme Court’s obscenity cases in an attempt to avoid constitutional problems, but the challengers pointed out there was a long history of judgments on what is obscene and what is not, while no one can predict how the California law would be applied.

Justice Ruth Bader Ginsberg suggested that perhaps California could set up a state office to issue advisory opinions on whether a game would be allowed or not. Justice Scalia responded that they could call it the “California Office of Censorship.”

The case is Schwarzenegger v. Entertainment Merchants Association, and a decision will likely be handed down next spring.

Supreme Court Strikes Down Law Against Animal Cruelty Videos

The U.S. Supreme Court on Tuesday struck down a 1999 law criminalizing the creation, sale and possession of depictions of animal cruelty.

In Congressional debate, most of the attention was focused on so-called "crush videos," described as videos of women in high heels stepping on and killing small animals, but the law was used in 2004 to prosecute Robert Stevens for selling dog-fighting videos.

Justice John Paul Stevens, who turned 90 today, argued that the law was an unconstitutional infringement of the First Amendment guarantee of freedom of speech, and the Supreme Court, in an 8-to-1 decision, agreed. Chief Justice John Roberts, writing for the majority, dismissed the government's argument that depictions of animal cruelty, like child pornography, had no societal value and therefore were not protected by the Constitution. The Court wrote that the government's explanation of First Amendment rights is "startling and dangerous," noting that while there is a long history of laws against animal cruelty, there is no historical basis for arguing the First Amendment was never intended to protect depictions of animal cruelty.

Continuing, the Court pointed out that the law would criminalize a large amount of material that is legal in most states. For example, hunting videos or magazines would be legal in most places, but sale and possession of depictions of hunting might be a federal crime in the District of Columbia because hunting is illegal in DC. Videos of bow hunting would be illegal in any state that outlaws bow hunting. Further, videos showing the slaughter of livestock might be illegal in places where health regulations prevent slaughterhouses from operating.

The opinion also dismisses former President Clinton's signing statement as a limit on the law that would make it constitutional. When he signed the law, Mr. Clinton said that it would be limited to depictions "of wanton cruelty to animals designed to appeal to a prurient interest in sex." Robert Stevens's dog fighting videos did not fall into this category, the Court noted, so that statement does not save the law.

Justice Samuel Alito, the only Justice dissenting from the decision, wrote that he thought the law could be limited by the Court to only cover some depictions of animal cruelty, and thus it could be made constitutional. Alito wrote that he would exclude hunting from the law's coverage, pointing out that most states' animal cruelty laws already exclude wild animals.

High Court Weighs Christian College Group's Right To Discriminate

The Supreme Court today heard a new case weighing student groups' First Amendment rights of free speech, exercise of religion, and association against a school's right to control use of its facilities and to protect against discrimination on campus.

The case was brought by the Christian Legal Society (CLS) chapter at Hastings College of Law. Hastings had revoked CLS's status as a Registered Student Organization (RSO) after the CLS chapter adopted bylaws that required all voting members of the group to sign a "Statement of Faith" and pledge "to live their lives accordingly." Included in the Statement of Faith were promises to abstain from "acts of the sinful nature," including premarital sex and homosexual conduct.

As a consequence of not being an RSO, the CLS chapter would not receive funds from the school to reimburse members for trips, and members could not use campus office space, bulletin boards, and other resources. Though it could still ask for permission to use campus meeting rooms, it was not guaranteed access.

A majority of the time in the oral argument session was spent trying to figure out the exact policy used by the school. Hastings has a written non-discrimination policy that still would allow groups to exclude members based on their beliefs, but it also has an unwritten "all-comers" policy that requires RSOs to admit all students. At an early stage of the case, the CLS chapter seems to have agreed that the operative policy was the "all-comers" policy, but in filings and at oral argument today the lawyers for the CLS chapter tried to challenge both policies, forcing the Supreme Court Justices, led by Justice Anthony Kennedy, to ask what, exactly, they were claiming in their suit.

The primary argument made by CLS's attorney, former federal judge Michael McConnell, was that the school could forbid groups that took discriminator action, but it could not refuse to recognize a group that chose its members based on beliefs. If all groups had to accept all beliefs, McConnell argued, that would require the campus Republican group to accept Democrats as voting members, for example. Justices were skeptical of this argument, and Justice Antonin Scalia noted that no one had presented any evidence that a group had ever been hijacked in this manner.

Additionally, the Justices seemed fairly unconcerned with the effects of being unrecognized. They noted that a group that was not an RSO could still meet on campus in public areas and was still free to communicate with students.

The case, Christian Legal Society v. Martinez, will be decided before summer.

Supreme Court Strikes Down Limits On Corporate Campaign Ads

In what Justice John Paul Stevens called a "radical departure" from earlier law, the Supreme Court today ruled that any campaign finance regulation that treats corporations differently from individual citizens is unconstitutional.

The decision came in the case of Citizens United v. Federal Election Commission (FEC), in which a private corporation tried to produce and broadcast a "documentary" critical of then-Senator Hillary Clinton during the 2008 presidential primary. Under the 2002 Bipartisan Campaign Reform Act—also known as McCain-Feingold—any broadcast of the documentary, because it was funded by a corporation, would be illegal within 30 days of the primary.

Justice Kennedy, writing for himself and four other Justices, called the regulation a "ban on political speech," and said that the government "ban[s] political speech simply because the speaker is an association that has taken on the corporate form." He rejected arguments that had been accepted in Supreme Court precedents that corporations could be regulated more tightly because they had special legal advantages, "such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets." Kennedy quoted Justice Antonin Scalia's dissent from an earlier case, writing that "the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights."

"The First Amendment confirms the freedom to think for ourselves," Kennedy wrote, adding that "when Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought."

Justice Stevens wrote a lengthy dissent, harshly attacking the bases of the Court's opinion. He pointed out that the law was not an outright ban, as Citizens United could have used PAC funding, aired the ad earlier, or refused contributions from for-profit corporations. He also noted that the Supreme Court has previously upheld speech restrictions on other groups based on their identities, such as students, prisoners, and members of the armed forces. The majority's logic, Stevens wrote, "would have accorded the propaganda broadcasts to our troops by 'Tokyo Rose' during World War II the same protection as speech by Allied commanders."

Justice Stevens also criticized the majority for producing a broader decision than was necessary. Citizens United had only asked for a special waiver for its documentary, but the majority chose to take the opportunity to strike down the entire law.

The Court did choose to uphold a provision of the law that required some disclosures when corporations make expenditures. Under the law, campaign ads not made by a candidate must reveal the name of the group that funded it, and any person or corporation that spends more than $10,000 in a single year on campaign ads must make a filing with the FEC listing any individuals who contributed more than $1,000.

This disclosure provision was upheld by eight Justices, with only Justice Clarence Thomas dissenting. Justice Thomas cited a right to anonymous speech and expressed concern about retaliation against individual donors, referring to harassment and property damage exacted upon supporters of California's Proposition 8.

Supreme Court Hears Case Of Animal Cruelty And Free Speech

By Ravi Bhatia-Talk Radio News Service

Animal cruelty clashed with first amendment rights today in the U.S. Supreme Court case of United States v. Stevens, which also marked Justice Sonia Sotomayor’s second day sitting as an Associate Justice in the Court’s new term. 

In 2004, Robert Stevens was indicted and charged with selling three dogfighting videos to undercover law enforcement agents. Congress enacted the statute in 1999, which deemed that whoever sells depictions of animal cruelty would be fined and/or imprisoned for up to five years. 

Steven’s 37-month sentence was 14 months longer than NFL quarterback Michael Vick’s, who had participated firsthand in a dogfighting venture. Although dogfighting is illegal in all 50 states, the practice is legal in Japan, where much of the footage in Stevens’ videos came from. 

According to Neal Katyal, the government lawyer defending the law, a “robust market” in animal cruelty exists. Upholding the statute would dry up the market for such material, he argued. It would also add to the precedent set in New York v. Ferber in 1982, when the Court ruled that the First Amendment right to free speech did not forbid states from banning the sale of child pornography.

The Ferber case was the last time that the question of whether or not material was too obscene to receive first amendment protection was addressed.

Patricia Millett argued on behalf of Stevens, suggesting that the statute was drafted too broadly and that it applied to legally protected activity.

Congress had enacted Article 48 in order to outlaw “crush videos,” which depicted close-ups of women inflicting torture on animals such as hamsters, puppies and kittens with their bare feet or while wearing high-heeled shoes.

The Supreme Court will release their decision on the case later this year, although the tone of the hearing implies that the justices are leaning towards affirming the decision of the Court of Appeals in overturning the law.