Robert Corn-Revere, a partner with the law firm of Davis Wright Tremaine and one of America’s greatest living defenders of the First Amendment, has a new essay up on the Media Institute website entitled “The Terminator Cometh.” Corn-Revere takes on the former Terminator himself, California Gov. Arnold Schwarzenegger, who along with other Calif. lawmakers, has asked the Supreme Court to review a Ninth Circuit Court of Appeals decision holding that a California video game statute was unconstitutional. (More background in my previous post here). California’s decision to appeal the law up to the Supreme Court [petition is here] sets up a potential historic First Amendment decision (if they Court agrees to take the case, that is). Corn-Revere points out why this case is so important:
In seeking review, California is asking the Supreme Court to reverse 60 years of First Amendment jurisprudence and to hold that “excessively violent” material — whatever that may be –“deserves no constitutional protection.” It is also asking the Court to relieve government from actually having to demonstrate the purported harmfulness of speech it seeks to regulate, but instead to defer to “reasonable inferences” and “legislative judgments.”
In other words, Corn-Revere notes, “the state is asking the Court simply to lower the bar so that protected speech may be regulated based on legislative whim.” He continues:
Thus, like the Terminator, no matter how many times you kill it, the government drive that motivates these laws keeps on going and going until it achieves its programmed goal. If California is successful, it will open the door to regulate not just video games, but a wide range of speech that is currently protected under the First Amendment.
Corn-Revere is right. The ramifications of this case could be profound. As I pointed out in my previous essay on this case:
California is essentially asking the Supreme Court to engage in a constitutional revolution and upset a century’s worth of First Amendment jurisprudence. The State wants the Court to equate violent media content with sexual content, which in certain limited cases can be regulated if deemed “obscene” or “harmful to minors” (”HTM”). If you thought that business was messy and hopelessly arbitrary, just wait till we let the Federal Communications Commission or state regulators open this new Pandora’s Box of content regulation and go after “excessively violent” content.
I’ve sorted through some of those thorny issues before (1, 2, 3, 4, 5, 6) and there’s just no getting around the fact that it is remarkably difficult to come up with any sort of workable test for what counts as “excessively violent” media content. And that may be one of the reasons that the courts have historically steered clear of bringing violent content under the HTM standard.