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SUPREME COURT DOCKET REPORT

Mayer Brown's Supreme Court and Appellate Practice Group distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community. We also email the Docket Report to our subscribed members and if you don't already subscribe to the Docket Report and would like to, please click here.

October Term 2009 - April 26, 2010

Today the Supreme Court granted certiorari in one case of interest to the business community:


First Amendment—Restrictions on Sales of Violent Materials to Minors

The Supreme Court has long held that states can restrict the distribution of otherwise-protected sexual expression to minors without offending the First Amendment. Today the Court granted certiorari in Schwarzennegger v. Entertainment Merchants Association, No. 08-1448, to decide whether states can also permissibly restrict the distribution of violent material to minors, and to clarify the level of scrutiny courts must apply to such restrictions.

In 2005, California passed a law prohibiting the sale or rental of “violent video games” to minors, defining such a game as one that depicts “killing, maiming, dismembering, or sexually assaulting an image of a human being” in a manner offensive to prevailing community standards. Cal. Civ. Code §§ 1746-1746.5. The California Legislature passed the act after considering a range of studies suggesting a link between such games and anti-social behavior in those who play them. In response to a facial challenge by industry groups, the district court enjoined enforcement of the legislation. Although the district court recognized that the Supreme Court had articulated a deferential standard of review for restrictions on distribution of sexual materials to minors in Ginsberg v. New York, 390 U.S. 629 (1968), it concluded that such deference did not apply to violent materials. The district court thus applied strict scrutiny to the restriction, and found that California had not established a sufficient causal nexus between the violent video games and the protection of minors. The Ninth Circuit affirmed, rejecting an extension of Ginsberg to cover violent materials, and holding that to demonstrate the restrictions served the compelling state interest of protecting the psychological well-being of minors, California would need to offer evidence that the games actually cause psychological harm, not merely evidence of correlation between the games and aggression.

California petitioned for certiorari, contending that restrictions on the distribution of violent content to minors should be subject to the same deferential scrutiny extended to restrictions on sexual content under Ginsberg. In the alternative, California argues that states should be able to satisfy the demands of strict scrutiny with evidence short of a direct causal link between the regulated material and the compelling state interest at stake in areas where complete empirical support for such a link is inherently unlikely to be available.

This case is of great interest to any entity involved in the production or distribution of expressive content protected under the First Amendment. In deciding this case, the Supreme Court will likely clarify what types of expression can be restricted from distribution to minors without implicating First Amendment concerns. The Court may also clarify the nature of the burden states must meet to satisfy the application of strict scrutiny if they seek to regulate protected expression.

Absent extensions, which are likely, amicus briefs in support of the petitioners will be due on June 17, 2010, and amicus briefs in support of the respondents will be due on July 19, 2010. Any questions about this case should be directed to Andrew Tauber (+1 202 263 3324) in our Washington, D.C. office.


Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at atauber@mayerbrown.com or +1 202 263 3324).

Feel free to forward this message to anyone who you believe might be interested in the Docket Report.

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Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at atauber@mayerbrown.com or +1 202 263 3324).

Mayer Brown Supreme Court Docket Reports provide information and comments on legal issues and developments of interest to our clients and friends. They are not a comprehensive treatment of the subject matter covered and are not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed. 



 
 
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