He Wants to Terminate Your First Amendment Rights
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.”
The John Connor of Your First Amendment Freedoms
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:
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This week, the Ninth Circuit Court of Appeals struck down a California video game statute as unconstitutional, holding that it violated both the First and Fourteenth Amendments to the federal Constitution. The California law, which passed in October 2005 (A.B.1179), would have blocked the sale of “violent” video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law. It was immediately challenged by the Video Software Dealers Association and the Entertainment Software Association and, in August of 2007, a district court decision in the case of Video Software Dealers Association v. Schwarzenegger [decision here] enforced a permanent injunction against the law. The Ninth Circuit heard the state’s challenge to the injunction last year and handed down it’s decision this week [decision here] holding the statute unconstitutional. The key passage:
We hold that the Act, as a presumptively invalid content based restriction on speech, is subject to strict scrutiny and not the “variable obscenity” standard from Ginsberg v. New York
, 390 U.S. 629 (1968). Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion. Accordingly, we affirm the district court’s grant of summary judgment to Plaintiffs and its denial of the State’s cross-motion. Because we affirm the district court on these grounds, we do not reach two of Plaintiffs’ challenges to the Act: first, that the language of the Act is unconstitutionally vague, and, second, that the Act violates Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment.
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In discussions about data-intensive government programs like watchlists, people often talk about the importance of “redress” – giving the public some way to correct information or dispute adverse decisions arising from these programs.
“Redress” is a misnomer that diminishes the importance of the subject at hand. Constitutional Due Process is what’s at stake. So says the Ninth Circuit in the case of Humphries v. County of Los Angeles.
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