Supreme Court's Year in Review

The U.S. Supreme Court’s most recent term — October Term 2010, or OT10 to court watchers — concluded in the last week of June with a flurry of divided opinions on heated issues, from the First Amendment, to campaign finance reform, to class actions. Several of these cases, and indeed many of the most controversial cases this term, arrived at the Supreme Court from California and the Ninth Circuit U.S. Court of Appeals. Whether that’s because the West continues to push the forefront of legal and political innovation, or because its judges and politicians routinely step dangerously far outside the national mainstream, is a question of ongoing debate. What’s clear is that, for one reason or another, California and the Ninth Circuit continue to be key foci of the court’s attention.

First Amendment: Free Speech

On the free speech front, one of the first cases argued this term was also one of the last decided: Brown v. Entertainment Merchants Association, 11 C.D.O.S. 7874, in which the court held a 2005 California statute banning the sale of violent video games to minors violates the First Amendment. The law made it a crime to sell video games to minors in which “an image of a human being” could be killed, maimed, or assaulted in a way that appeals to a “deviant or morbid interest,” but the Ninth Circuit found the statute unconstitutionally burdened speech. The Supreme Court affirmed in a 7-2 vote, holding that video games are entitled to the same First Amendment protections as other traditional media. Thus, the court explained, governmental restrictions based on the content of video games must be narrow and designed only to serve a compelling state interest — and the California statute, which relied on questionable psychological studies purporting to show a connection between violence in video games and violent behavior among children, met neither requirement. Importantly, the court refused to grant violent speech the same status as obscene speech, which is not subject to First Amendment protections; the court held that obscene speech is purely sexual and cannot be extended to include violence. Justice Stephen Breyer’s dissent, however, asked why a state may ban the sale to minors of images of a barely nude woman, while it cannot ban the sale of images showing horrific acts of violence toward that woman.