Question: VIDEO SOFTWARE DEALERS ASS'N v. SCHWARZENEGGER, 556 F.3D 950 (9TH CIR. 2009)

FACTS The state of California passed a statute imposing restrictions and a labeling requirement on the sale or rental of "violent video games," such as Grand Theft Auto: Vice City, Postal 2, and Duke Nukem 3D, to minors. The state legislature stated that it had a compelling interest in passing the statute: "preventing psychological or neurological harm to minors who play violent video games." The Video Software Dealers Association and the Entertainment Software Association challenged the statute, arguing that it violated their First Amendment rights. The trial court granted summary judgment to the Associations, and the state appealed. DECISION On appeal, the Ninth Circuit held that:

(1) the Act's ban on sales or rentals was an invalid contentbased restriction on speech and

(2) the Act's labeling requirement was invalid as it compelled false speech.

First, the court noted: "Existing case law indicates that minors are entitled to a significant measure of First Amendment protections, that content-based regulations are presumptively invalid and subject to strict scrutiny, and that if less restrictive means for achieving a state's compelling interest are available, they must be used." Only in "relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to" minors. Although the U.S. Supreme Court has recognized that "there is a compelling interest in protecting the physical and psychological well-being of minors," the state failed to prove that the harm it was concerned with was real and that the Act would alleviate that harm in a direct and material manner. The evidence presented by the state on this issue did not "establish[ ] or suggest[ ] a causal link between minors playing violent video games and actual psychological or neurological harm, and inferences to that effect would not be reasonable." Moreover, the state failed to show that less restrictive means of achieving its goal were not available. The state seemed more focused on the "most-effective" means of achieving its objective, rather than the "least-restrictive" means.

Parental controls available on modern gaming systems could further the government's purpose in protecting minors, as would an enhanced educational program aimed at retailers and parents regarding the industry's own rating system. Thus, the statute was not "narrowly tailored." Second, the court found that the Act's labeling provision, which required that the front of the package of a "violent video game" be labeled with a foursquare-inch label reading "18" was unconstitutional. Compelled speech is permissible if the "disclosure requirements are reasonably related to the State's interest in preventing deception of customers." Here, though, the statute was compelling video game manufacturers to display the state's subjective opinion, not to disclose purely factual information. Because the court had already determined that the statute's provisions barring rental or purchase of games by minors was unconstitutional and because there is no statemandated age threshold for purchasing or renting video games, the state-mandated label conveyed a false statement that certain conduct (purchase or rental of the video by a minor) is illegal when it is not. As the court noted, "The State has no legitimate reason to force retailers to affix false information on their products." Thus, the statute's labeling requirement was unconstitutional.