Comic Book Legal Defense Fund Urges Supreme Court to Reject New Restrictions on Speech in Video Game Censorship Case


Posted Friday, September 17th, 2010

Comic Book Legal Defense Fund today filed a friend-of-the-court brief in Schwarzenegger v. EMA, urging the Supreme Court to affirm the Ninth Circuit’s decision that a California law banning the sale or rental of any video game containing violent content to minors, and requiring manufacturers to label such games, is unconstitutional.

The Comic Book Legal Defense Fund submits that, if allowed to stand, California’s law would reverse fundamental First Amendment principles by creating a new category of unprotected speech, diminishing the First Amendment rights of minors, and reducing First Amendment protection for new media. The CBLDF argues that the law under review is the most recent example of government improperly attempting to regulate content by using junk science, and calls upon a history of moral panics against media that includes the 1950s crusades against comics that crippled the industry and harmed the art form. The CBLDF asks the Supreme Court to deny California this attempt to roll back protections guaranteed by the First Amendment, as it and other courts have correctly done in the past.

Charles Brownstein, Executive Director of CBLDF, says “The case California makes against video games is one familiar to the comic book industry, which was nearly destroyed by government attempts at regulation in the 1950s. Then, as now, moral crusaders claimed that popular new media containing depictions of violence were detrimental to our youth. Then, as now, pseudo-science was used to back such claims. Those claims weren’t true in the 1950s, and they aren’t true now.”

Brownstein adds, “We hope that the Supreme Court denies California’s attempt to diminish the First Amendment, and spares the video game industry the fate that was suffered by the comic book industry in the past. We also encourage them to deny California’s claims so that comic books and other media don’t suffer under a new constitutional standard that creates new categories of unprotected speech and diminishes the First Amendment rights of minors.”

At issue in Schwarzenegger v. EMA is a challenge to a California video game law, enacted in 2005, that prohibited the sale or rental to minors of any video game containing certain violent content. The law — blocked by a federal judge in 2006 before it took effect — also required such manufacturers to include an “18 and older” warning label on the front of the package and provides civil penalties of up to $1,000 for violations. In 2008, CBLDF, as part of Media Coalition, filed a friend-of-the-court brief with the Ninth Circuit Court of Appeals in support of the respondent in today’s case, arguing that speech with violent content could not be regulated by the government and that the labeling requirement was unconstitutional as compelled speech. Last year, a three-judge panel of the Ninth Circuit ruled unanimously that the law violates the First Amendment.

The CBLDF brief was written by the organization’s General Counsel, Bob Corn-Revere of Davis Wright Tremaine. The brief is available online here. A wiki about the case, including links to all legal papers and briefs, is online at http://scotuswiki.com/index.php?title=Schwarzenegger_v._Entertainment_Merchants_Association

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The Comic Book Legal Defense Fund was founded in 1986 as a 501 (c) 3 non-profit organization dedicated to the preservation of First Amendment rights for members of the comics community. They have defended dozens of Free Expression cases in courts across the United States, and led important education initiatives promoting comics literacy and free expression. For additional information, donations, and other inquiries call 800-99-CBLDF or visit them online at www.cbldf.org.

News Media Responds to EMA v. Schwarzenegger


Posted Tuesday, April 27th, 2010

by Amy Long
for The Media Coalition

Over 100 newspapers, websites, and blogs reported on the Supreme Court’s decision to grant California’s petition for certiorari in EMA v. Schwarzenegger. Papers across the United States, Canada and Britain carried the news, which reached as far as New Zealand’s Top News, the Ethiopian Review and Thailand’s The Thaindian paper, which takes a view that is generally supportive of the state’s position (though it notes that Schwarzenegger “seemed a tad too pleased with the court’s decision”). The case will be taken up by the Court in its fall term.

The Reuters story (along with its Canadian twin) straightforwardly reports on the Court’s decision, reviews the law’s background, and features a solid quote from ESA president Michael Gallagher. The Associated Press’ more extensive coverage, which pits free speech against “helping parents keep violent material away from children,” focuses on the case’s relationship to U.S. v. Stevens and to obscenity-related case law; Michael Gallagher is also quoted in AP’s story. News outlets from the Huffington Post to the Spokane Spokesman-Review carried that AP article. Bloomberg’s report includes a brief analysis of the state’s position, a history of the case and a reaction quote from EMA president Bo Anderson. EMA’s Sean Bersell also appears in the story, confirming that eight other jurisdictions have passed similar laws, all of which have been struck down by the courts.

In the Los Angeles Times, David Savage says the Court’s decision to hear the case suggests that the justices think the California law could be upheld because it is narrowly targeted to minors and applies to games that “appeal to a deviant and morbid interest in violence.” Adam Liptak agrees, quotes Michael Gallagher, and reports on California’s failed attempt to have the appeals court apply the “more relaxed standard used in obscenity cases involving minors” rather than strict scrutiny. He also notes that the appeals court judge, Judge Consuelo M. Callahan, registered skepticism regarding the state’s claim that violent games cause rather than correlate with psychological harm to minors. The Washington Post discusses the Court’s decision in relation to Stevens and notes that this will be the first time the Supreme Court has considered a First Amendment case relating to video games. The Christian Science Monitor’s detailed article provides viewpoints from free speech and video game advocates as well as supporters of the California law, a discussion of the validity of the research presented by the state in lower court arguments, and a case history. CNBC focuses on industry figures’ and specialist attorneys’ reactions to the Court’s decision yesterday.

At Reason Magazine’s Hit & Run blog, libertarian Jacob Sullum not only warns against the ramifications of the Supreme Court carving out a new arena of unprotected speech but also says that, if the Court upholds the law, “this case would effect a sea change in the permissible regulation of all media […] that contain violent content and are accessible to minors.” In a media advisory, Progress & Freedom Foundation president Adam Thierer says he hopes the Court “is taking this case to affirm the free speech rights of game creators and users, and not to overturn ten years of solid, sensible lower court decisions granting video games the same First Amendment protections as books, film, music and other forms of entertainment.” At the First Amendment Center, David L. Hudson says that, in agreeing to hear the case, the Court will “decide whether the concept of obscenity can extend to violent-themed materials or will remain rooted in hard-core sexual materials.” Cornell’s student paper, the Cornell Sun, argues that video games should be protected in the same way as are music recordings, films, and books.

The San Jose Mercury quotes Eugene Volokh as predicting less that the Court may feel California’s law is narrowly tailored enough to pass constitutional muster and more that the violent games debate is a national issue that deserves a resolution, though the journalists emphasize the unpredictability of the case. The San Mateo Daily Journal focuses on bill sponsor Senator Leland Yee’s reaction as well as that of video game advocates. The Orange County Register asks readers (particularly parents) to weigh in on whether or not minors should be allowed to buy games violent games.


Ars Technica provides a case history, discusses EMA’s relationship to Stevens, and predicts a good outcome for the game industry. Gamasutra also ties this case to Stevens, which it says “may signal a tough environment” for the California law, and highlights ESA’s role in challenging the law; Gamasutra’s piece includes quotes from Michael Gallagher and Jenn Mercurio, Entertainment Consumer Association vice president and general counsel. Gaming site G4’s The Feed blog features a video of ESA senior vice president and general counsel Ken Doroshow speaking about the legal issues facing the game industry at a 2010 conference and predicts that many of those issues will apply to the ESA’s strategy in the upcoming Supreme Court case. Technology web site TechNewsWorld reports on the Court’s surprising decision to grant cert and the state’s lack of solid evidence that violent video games cause harm to minors. Seattle’s technology news site, TechFlash, looks at the possibility that, should the Court uphold California’s law, Washington’s similar law, ruled unconstitutional six years ago, could be revived. Geezer Gamers, a site geared toward older video game players, considers the implications the Court’s upholding of the law could have on non-minors.

There was very little coverage in the religious conservative press. World Mag and Christian Broadcasting Network carried the AP story and Citizen Link carried a short story of its own.

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Media Coalition, Inc., founded in 1973, is an association that defends the First Amendment right to produce and sell books, movies, magazines, recordings, DVDs, videotapes, and video games, and defends the American public’s First Amendment right to have access to the broadest possible range of opinion and entertainment.

Supreme Court to Decide Whether States Can Regulate Violent Video Games


Posted Tuesday, April 27th, 2010

On Monday, the Supreme Court agreed to review a ruling that the First Amendment bars restrictions on video games with violent themes. The Comic Book Legal Defense Fund has actively opposed such restrictions, including participating in a 2008 friend-of-the-court (aka amicus) brief filed by the Media Coalition, addressing this same case. In hearing this case, the Supreme Court will decide whether or not it will adopt a new constitutional standard that allows states to ban violent content.

A Media Coalition press release lays out what’s at stake:

At issue in Schwarzenegger v. EMA, No. 08-1448, is a challenge to a California video game law, enacted in 2005, that prohibited the sale or rental to minors of any video game containing certain violent content. The law – blocked by a federal judge in 2006 before it took effect – also required such manufacturers to include an “18 and older” warning label on the front of the package, and provides civil penalties of up to $1,000 for violations.

Lyle Denniston, writing for the SCOTUSblog notes:

The Court apparently had been holding the case until it decided another First Amendment case involving violent expression — U.S. v. Stevens (08-769). In that ruling, issued last Tuesday, the Court struck down a federal law that banned the depiction in videotapes of animal cruelty. In that ruling, the Justices refused to create a new exception to the First Amendment free speech right. The Court could have opted to send the California case back to the Ninth Circuit Court to weigh the impact of the Stevens decision. Instead, it simply granted review; the case will be heard and decided in the Court’s next Term, starting Oct. 4.

In 2008, the CBLDF joined an amicus brief filed by the Media Coalition in the Ninth Circuit Court of Appeals in support of the plaintiffs in this case. We argued that speech with violent content could not be regulated by the government and that the labeling requirement was unconstitutional as compelled speech. Last year, a three-judge panel of the Ninth Circuit ruled unanimously that the restriction on speech and the labeling requirement violates the First Amendment. Now the State of California is asking the Supreme Court to overturn that decision, and to establish a new constitutional standard that would allow states to ban games with violent content for users under the age of 18.

Media Coalition Executive Director David Horowitz says, “In last week’s ruling in U.S. v. Stevens, the Court reiterated that speech is protected by the First Amendment save for a small number of narrow historic exceptions. The speech at issue in this case does not fall within one of those narrow exceptions and we hope that the Court will decline to create a new category of unprotected speech.”

Supreme Court Strikes Down Overbroad Content Law in U.S. v. Stevens


Posted Thursday, April 22nd, 2010

By Alex Goldman

In a ruling on Tuesday, the Supreme Court voted 8-1 to strike down a 1999 federal law that criminalizes the possession or sale of “depictions of animal cruelty,” saying that the statute is overbroad and it violates the First Amendment. The Comic Book Legal Defense Fund, who participated as a member of Media Coalition’s amicus group, welcomes this important ruling as an affirmation of the First Amendment’s guarantee to free speech.

According to the Supreme Court’s opinion, the existing statute “addresses only portrayals of harmful acts, not the underlying conduct.” While the law was designed specifically to address the trafficking of “crush videos,” fetish videos which involve the killing of animals by stepping on them, the court found that the statute “creates a criminal prohibition of alarming breadth.” In an attempt to “regulate the treatment of animals” by criminalizing these depictions, the law was so broadly written that it had the potential to also criminalize illustrations, articles, books and films graphically depicting subjects like hunting and bullfighting.

The Comic Book Legal Defense Fund was part of an amicus brief filed with the court by The Media Coalition in July of last year in opposition to the government’s position. The brief criticized the breadth of the statute, and noted that “if the court were to agree that speech about violence can be banned in order to discourage violence – In this case, cruelty to animals – it would imperil not just a wide range of speech that engages with the violent world in which we live, but also speech concerning other conduct that may be viewed as undesirable and thus potentially subject to restriction.”

At the center of this case was a Virginia resident and dog-trainer named Robert Stevens, who was sentenced in 2004 to 37 months in prison for selling videos that featured pit bulls fighting each other and training to hunt wild boar. Most of the footage in the video came from countries that have no laws about dogfighting such as Japan, or was more than 30 years old.

The conviction was overturned in the 3rd circuit court of appeals in 2008, as the court was unwilling to create a new category of unprotected speech. The Supreme Court agreed with the 3rd circuit’s interpretation, with chief Justice Roberts writing that the Supreme Court did not have “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

The government’s argument for upholding the law, as well as Justice Alito’s lone dissent compared such depictions to child pornography, which the court clearly stated deserves no protection under the First Amendment in the 1982 case New York v Ferber. Roberts dismissed the comparison, however, because the market for child pornography is “intrinsically related to the underlying abuse.”

The Comic Book Legal Defense Fund and the Comic Legends Legal Defense Fund are pleased to announce that the Crown has withdrawn all criminal charges in R. v. Matheson, the case previously described as the “Brandon X case,” which involved a comic book reader who faced criminal charges in Canada relating to comic books on his computer. The defendant, Ryan Matheson, a 27-year-old comic book reader, amateur artist, and computer programmer has been cleared of any criminal wrongdoing.

The total legal costs of this case exceeded $75,000. After taking the case last summer, the Comic Book Legal Defense Fund contributed $20,000 to the defense, and the Comic Legends Legal Defense Fund contributed $11,000. The CBLDF also participated in shaping the defense, including recruiting expert testimony for the trial. The organization is currently seeking funds to help pay off the $45,000 debt Matheson incurred as a result of his case, and to create new tools to prevent future cases. To make a contribution to these important efforts, please visit www.cbldf.org. Learn more about the shocking details of this case and how you can support the CBLDF's efforts to fight back!Read the full post