Video Software Dealers Association et al v. Schwarzenegger et al

Filing 70

MOTION for Summary Judgment filed by Arnold Schwarzenegger, Bill Lockyer. Motion Hearing set for 5/12/2006 09:00 AM in Courtroom 6, 4th Floor, San Jose. (Morazzini, Zackery) (Filed on 3/30/2006)

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Video Software Dealers Association et al v. Schwarzenegger et al Doc. 70 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 1 of 31 1 BILL LOCKYER Attorney General of the State of California 2 LOUIS R. MAURO Senior Assistant Attorney General 3 CHRISTOPHER E. KRUEGER Supervising Deputy Attorney General 4 SUSAN K. LEACH Deputy Attorney General 5 ZACKERY P. MORAZZINI, State Bar No. 204237 Deputy Attorney General 1300 I Street, Suite 125 6 P.O. Box 944255 Sacramento, CA 94244-2550 7 Telephone: (916) 445-8226 Fax: (916) 324-5567 8 Email: 9 Attorneys for Defendants Governor Arnold 10 Schwarzenegger and Attorney General Bill Lockyer 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION VIDEO SOFTWARE DEALERS ASSOCIATION and ENTERTAINMENT SOFTWARE ASSOCIATION, Plaintiffs, v. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of the State of California; BILL LOCKYER, in his official capacity as Attorney General of the State of California; GEORGE KENNEDY, in his official capacity as Santa Clara County District Attorney, RICHARD DOYLE, in his official capacity as City Attorney for the City of San Jose, and ANN MILLER RAVEL, in her official capacity as County Counsel for the County of Santa Clara, Defendants. C 05-4188 RMW RS GOVERNOR AND ATTORNEY GENERAL'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; POINTS AND AUTHORITIES IN SUPPORT THEREOF Hearing: May 12, 2006 Time: 9:00 a.m. Courtroom: 6 Judge: The Honorable Ronald M. Whyte Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 2 of 31 1 2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 12, 2006, at 9:00 a.m., in courtroom 6 of the above- 3 referenced Court located at 280 South 1st Street, San Jose, California, defendants Governor 4 Arnold Schwarzenegger and Attorney General Bill Lockyer will and hereby do move this Court 5 for entry of summary judgment on each and every cause of action set forth in plaintiffs' 6 complaint in this action pursuant to Rule 56(b) of the Federal Rules of Civil Procedure and L.R. 7 56-1. The motion will be based upon this Notice of Motion and Motion, the Memorandum of 8 Points and Authorities filed in support thereof, all supporting papers and pleadings filed and on 9 file herein, and the oral arguments which the Court may hear in this matter. 10 Summary Judgment on all causes of action in the defendants favor is appropriate because 11 there are no genuine issues of material facts in dispute and, as a matter of law, each and every 12 aspect of the act at issue survives judicial scrutiny. 13 14 INTRODUCTION This motion is likely to turn on whether the Court determines that the evidence the 15 Legislature considered in passing Assembly Bill 1179, California Civil Code section 1746 16 1746.5 ("the Act") is substantial. Through this motion, Governor Arnold Schwarzenegger and 17 Attorney General Bill Lockyer ("the State") will demonstrate that they are entitled to summary 18 judgment because the evidence in the legislative record is more than enough to show that the 19 Legislature drew reasonable inferences based upon substantial evidence in passing the Act. Not 20 only does the evidence provide sufficient grounds for the Legislature to reasonably infer that 21 playing the violent video games covered by the Act can cause harm to children, it is the best 22 possible evidence the Legislature can obtain without performing unwarranted, unethical, and 23 possibly illegal experiments on children. The substantial evidence standard does not require the 24 State to force children to play video games that are so violent they are patently offensive to 25 prevailing standards in the community and a reasonable person would find they appeal to a 26 deviant or morbid interest of children in order to determine that such games are harmful. 27 Responsible social science uses field experiments, cross-sectional correlation studies, 28 longitudinal studies, and meta-analyses combining the results of other studies to form Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 1 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 3 of 31 1 conclusions regarding causation. These methodologies are standard operating procedure in 2 social sciences such as child psychology and child psychiatry. And in reviewing the results of 3 leading professionals applying these methodologies the same results reviewed by the 4 Legislature leading medical associations such as the American Academy of Pediatrics, the 5 American Psychological Association, the California Psychiatric Association, and the California 6 Psychological Association and have come to a clear consensus - violent video games cause harm 7 to children. 8 The Act does not shield children from the games, but simply ensures that parents and not 9 store clerks make the important decision as to whether a child should be allowed to play this 10 exceedingly narrow category of video games. The State should be applauded in this just effort. 11 12 STATEMENT OF FACTS AND ISSUES TO BE DECIDED The State asks this Court to decide whether, as a matter of law, the Act is constitutional 13 based upon the evidence considered by the Legislature and contained in the legislative record. 14 Specifically, the State asks this Court to decide, as a matter of law: (1) whether the Legislature's 15 determination that helping parents combat children's automatic aggressiveness, increased 16 aggressive thoughts and behavior, antisocial behavior, desensitization to violence, and poor 17 school performance due to playing video games covered by the Act represents a compelling state 18 interest; (2) whether the Legislature's determination was based upon substantial evidence; (3) 19 whether the Act is narrowly tailored; (4) whether the Act is unconstitutionally vague; and (5) 20 whether the Act's labeling requirements are constitutional. The State requests that this Court 21 grant summary judgment in its favor on Plaintiffs' causes of action for declaratory and injunctive 22 relief, and lift the preliminary injunction entered on December 21, 2005, because the Act is 23 constitutional and therefore survives Plaintiffs' challenges brought under the First and 24 Fourteenth Amendments and the Equal Protection Clause. 25 26 27 28 Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS The relevant facts are as follows. Assembly Member Leland Yee, Ph.D, introduced 2 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 4 of 31 1 Assembly Bill 450 on February 15, 2005.1/ Later during the same legislative session, Assembly 2 Bill 1179 was gutted and amended, and replaced with the language of Assembly Bill 450.2/ AB 3 1179 was passed by the Assembly on September 8, 2005, with a vote of 66 ayes, 7 noes, and was 4 passed by the Senate that same day with a vote of 22 ayes, 9 noes. RJN, Ex. 5, p. 1; Ex. 3, p.1. 5 The Governor signed the bill into law on October 7, 2005. RJN, Ex. 6, p.1. The Act was set to 6 take effect on January 1, 2006 (Cal. Const., Art. IV, 8(c)(2)), but on December 21, 2005, after 7 motion by Plaintiffs, briefing and oral argument, this Court issued a preliminary injunction, 8 enjoining defendants from enforcing the Act until further order of this Court. 9 Before passing the Act, the Legislature reviewed considerable evidence regarding the 10 negative effects violent video games have on children. RJN, Appendices A-E. The Legislature 11 also considered the positions taken on the issue by leading medical associations, each supporting 12 the conclusion that violent video games are harmful to children. Appendix A, pp. A081-085. 13 The Legislative record contains dozens of studies and reports regard the negative effects violent 14 video games have on children. 15 16 STANDARD OF REVIEW Summary judgment is appropriate if the record, read in the light most favorable to the 17 non-moving party, demonstrates no genuine issue of material fact and that the moving party is 18 entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 19 Material facts are those necessary to the proof or defense of a claim, and are determined by 20 reference to the substantive law. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). 21 At the summary judgment stage the question before the court is whether there are genuine 22 issues for trial, or whether the matter can be decided as a matter of law. Ibid. Upon a showing 23 that there is no genuine issue of material fact as to a particular claim, the court may grant 24 25 1. See State's Request For Judicial Notice in Support of Motion for Summary Judgment ("RJN"), Ex. 7, filed concurrently herewith and incorporated herein by this reference. 26 27 2. RJN, Ex. 1, p. 2, ("On September 2, 2005, the last day for amending bills without a rule waiver, the author gutted and amended AB 1179 (Yee) to insert the language largely identical to the 28 text of AB 450."). Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 3 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 5 of 31 1 summary judgment in the party's favor "upon all or any part thereof." Wang Laboratories, Inc. 2 v. Mitsubishi Electronics, America, Inc., 860 F. Supp. 1448, 1450 (C.D.Cal. 1993); Robi v. Five 3 Platters, Inc., 918 F.2d 1439, 1441 (9th Cir. 1990). 4 5 6 7 8 ARGUMENT I. BECAUSE PLAINTIFFS' FIRST AMENDMENT CHALLENGE TO THE ACT FAILS AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD BE ENTERED IN FAVOR OF THE STATE. The Act survives strict scrutiny because the State has a compelling interest in preventing 9 harm to minors, and the Act is narrowly tailored to serve this interest. Sable Communications of 10 Cal., Inc. v. F.C.C., 492 U.S. 115, 126 (1989).3/ 11 A. 12 13 The State Has A Compelling Interest In Helping Parents Protect Children From Automatic Aggressiveness, Increased Aggressive Thoughts And Behavior, Antisocial Behavior, Desensitization To Violence, And Poor School Performance. The United States Supreme Court has firmly established that safeguarding the physical 14 and psychological well-being of children is a compelling state interest. Sable Communications 15 of California, Inc. v. F.C.C., 492 U.S. at 126 ("This interest extends to shielding minors from the 16 influence of literature that is not obscene by adult standards."). "A democratic society rests, for 17 its continuance, upon the healthy, well-rounded growth of young people into full maturity as 18 citizens." Prince v. Massachusetts, 321 U.S. 158, 168 (1944). The State's interest is not limited 19 to helping parents protect the developing minds of children from exposure to obscene material, 20 but includes simple nudity (Ginsberg v. New York, 390 U.S. 629, 645-47 (1968)) and even 21 "filthy words." F.C.C. v. Pacifica Foundation, 438 U.S. 726, 741-44 (1978). The Supreme 22 Court recognizes that parents, not society, are entitled to choose the appropriate material for their 23 individual children to view or hear. Ibid. And parents are entitled to the assistance of state laws 24 in this battle. 25 26 27 3. The State does not concede that strict scrutiny applies to the Act, but will not re-litigate here the issue that this Court decided in its ruling on Plaintiffs' motion for preliminary injunction, 28 which the State preserves for potential appellate proceedings. Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS These established principles are grounded in the recognition that "during the formative 4 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 6 of 31 1 years of childhood and adolescence, minors often lack the experience, perspective, and judgment 2 to recognize and avoid choices that could be detrimental to them." Bellotti v. Baird, 443 U.S. 3 622, 635 (1979). To assist parents in this regard, the Supreme Court has affirmed that 4 "constitutional interpretation has consistently recognized that the parents' claim to authority in 5 their own household to direct the rearing of their children is basic in the structure of our society . 6 . . . [P]arents and others, teachers for example, who have this primary responsibility for 7 children's well-being are entitled to the support of laws designed to aid discharge of that 8 responsibility." Ginsberg, supra, 390 U.S. at 639. Existing precedent recognizes that parents, 9 not society, bear the primary obligation of determining what is, and what is not, appropriate 10 material to for their children. 11 The State has a compelling interest in assisting parents in their fight to limit children's 12 exposure to material that can cause automatic aggressiveness, increased aggressive thoughts and 13 behavior, antisocial behavior, desensitization to violence, and poor school performance. 14 Preventing these specific harms to children is of the utmost importance. The developing minds 15 of children are extremely vulnerable to negative external influences such as violent video games. 16 The Supreme Court recently explained the social science behind this important fact. 17 18 19 20 21 22 23 24 25 26 27 28 First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, "[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions." Johnson, supra, at 367, 113 S.Ct. 2658; see also Eddings, supra, at 115-116, 102 S.Ct. 869 ("Even the normal 16-year-old customarily lacks the maturity of an adult"). It has been noted that "adolescents are overrepresented statistically in virtually every category of reckless behavior." Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 Developmental Review 339 (1992). [] The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure . . . . This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment. See Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003). [] The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. See generally E. Erikson, Identity: Youth and Crisis (1968). Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 5 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 7 of 31 1 Roper v. Simmons, 543 U.S. 551, 569 (2005). The Supreme Court based its findings on social 2 science, recognizing that the susceptibility of minors to mental harm from external influences, 3 well beyond that of adults, justifies different treatment in the eyes of the law. 4 And a state's compelling interest is not limited to helping parents prevent their children 5 from unwanted exposure to obscene material. In FCC v. Pacifica Foundation, supra, 438 U.S. 6 726, the Supreme Court upheld a formal declaratory order by the F.C.C. holding that a radio 7 station "`could have been the subject of administrative sanctions'" for its broadcasting of George 8 Carlin's "Filthy Words" monologue. Id., at p. 730. The F.C.C. had determined that the language 9 used in the monologue, though not obscene, was "indecent" pursuant to a federal statute. Id., at 10 p. 729. The Court expressly rejected the argument that a broadcast must be obscene in order to 11 be restricted under any circumstances, finding that the broadcast could be restricted because 12 "[t]hese words offend for the same reasons that obscenity offends," as the F.C.C. found that the 13 words used "debase and brutalize humans." Id., at p. 746 & n. 23. Emphasizing that material 14 need not be obscene in order to be regulated as to children, the Court opined, "We simply hold 15 that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory 16 power does not depend on proof that the pig is obscene." Id., at pp. 750-51. 17 Notably, in his concurring opinion, Justice Powell observed that the "Court has recognized 18 society's right to `adopt more stringent controls on communicative materials available to youths 19 than on those available to adults.'" Id., at p. 757 (J. Powell, concurring) (internal citation 20 omitted). Justice Powell explained: 21 22 23 24 25 This recognition stems in large part from the fact that `a child . . . is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.' . . . . Thus, children may not be able to protect themselves from speech which, although shocking to most adults, generally may be avoided by the unwilling through the exercise of choice. At the same time, such speech may have a deeper and more lasting negative effect on a child than on an adult. For these reasons, society may prevent the general dissemination of such speech to children, leaving to parents the decision as to what speech of this kind their children shall hear and repeat . . . ." 26 Id., at pp. 757-58 (internal citations omitted; emphasis added). 27 Given the extreme vulnerability of children to negative external influences, as a matter of 28 law, the State has a compelling interest in helping parents limit children's exposure to material Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 6 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 8 of 31 1 that can cause automatic aggressiveness, increased aggressive thoughts and behavior, antisocial 2 behavior, desensitization to violence, and poor school performance. 3 B. 4 5 6 7 The Act Is Supported By Substantial Evidence And, In Fact, The Best Possible Evidence The State Can Obtain Without Performing Unwarranted, Unethical, And Possibly Illegal Experiments On Children. 1. The Evidence Considered By The Legislature Is Substantial And Reflects The Prevailing View Of The Healthcare Community. The Legislative record is flush with peer-reviewed articles, studies, reports, and 8 correspondence from leading social scientists and medical associations analyzing the impact of 9 media violence, and specifically violent video games, on minors and young adults. Articles by 10 Dr. Craig A. Anderson, Ph.D.4/, along with many other respected psychologists, psychiatrists and 11 scholars, explain the methodologies used and results obtained in researching the impact of video 12 game violence on children. The legislative record contains no less than twenty-three published 13 articles authored by Dr. Anderson and other social scientists explaining the negative impacts 14 playing violent video games has on minors.5/ 15 For example, in 2004 (nearly four years after Judge Posner's opinion in American 16 Amusement Machine Ass'n v. Kendrick, 244 F.3d 572 (2001)), Dr. Anderson reported that an 17 "updated meta-analysis reveals that exposure to violent video games is significantly linked to 18 increases in aggressive behaviour, aggressive cognition, aggressive affect, and cardiovascular 19 arousal, and to decreases in helping behaviour."6/ Dr. Anderson explained that "[e]xperimental 20 studies reveal this linkage to be causal. Correlational studies reveal a linkage to serious, 21 real-world types of aggression. Methodologically weaker studies yielded smaller effect sizes 22 than methodologically stronger studies, suggesting that previous meta-analytic studies of violent 23 4. Dr. Anderson is a Distinguished Professor and Chair of the Iowa State University Department of Psychology. See He has been 25 publishing articles on the effects of violent video games on minors since 2000. 24 26 27 5. RJN, Appendix A, p. A014, "Violent Video Game Bibliography." Appendices A - E are presently on file with the Court through manual lodging and were previously served on all parties. 6. Appendix C, p. C091, Anderson, An Update on the Effects of Playing Violent Video 28 Games, Journal of Adolescence, 24 (2004) 113-122. Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 7 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 9 of 31 1 video games underestimate the true magnitude of observed deleterious effects on behaviour, 2 cognition, and affect." Appendix C, p. C091. 3 The Legislature was presented with strong evidence demonstrating the causal relationship 4 between violent video games and the harm caused to minors. One such article, a comprehensive 5 meta-study, or statistical practice of combining the results of a number of studies that address a 6 set of related research hypotheses, concluded that "[t]hough the number of studies investigating 7 the impact of violent video games is small relative to the number of television and film studies, 8 there are sufficient studies with sufficient consistency (as shown by the meta-analysis results) to 9 draw some conclusions . . . . The experimental studies demonstrate that in the short term, violent 10 video games cause increases in aggressive thoughts, affect, and behaviour; increases in 11 physiological arousal; and decreases in helpful behaviour."7/ 12 In another study where 607 eighth and ninth grade students from four schools were 13 analyzed, research demonstrated that "[a]dolescents who expose themselves to greater amounts 14 of video game violence were more hostile, reported getting into arguments with teachers more 15 frequently, were more likely to be involved in physical fights, and performed more poorly in 16 school."8/ 17 The legislative record contains further research showing that playing violent video 18 games increases "automatic aggressiveness," even in adults. In a study conducted using 121 19 college students, the results showed "[w]hile most video game enthusiasts insist that the games 20 they play have no effect on them, their exposure to scenes of virtual violence may influence them 21 automatically and unintentionally."9/ The study concluded that "[d]espite the misleading debate 22 23 24 25 7. Appendix A, p. A100, Anderson, et al., The Influence of Media Violence on Youth, Psychological Science in the Public Interest, Vol. 4, No. 3, pp. 91-93 (December 2003). 8. Appendix B, p. B028, provided in full in Appendix D, p. D001, Gentile, et al., The Effects of Violent Video Game Habits on Adolescent Hostility, Aggressive Behaviors, and School 26 Performance, Journal of Adolescence 27 (2004) 5-22, p. 5. 27 9. Appendix B, p. B064, provided in full at Appendix D, p. D019, Uhlmann & Swanson, Exposure to Violent Video Games Increases Automatic Aggressiveness, Journal of Adolescence, 27 28 (2004) 41-52, p. 48. Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 8 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 10 of 31 1 in the news media over whether exposure to violent television, movies and video games leads to 2 an increase in aggressive behavior, the empirical evidence that it does so has become 3 overwhelming." Appendix D, pp. D027-28. 4 The legislative record also contains research demonstrating that violent video games can 5 lead to desensitization to violence in minors.10/ Desensitization is "the attenuation or elimination 6 of cognitive, emotional, and ultimately, behavioral responses to a stimulus [violence]." 7 Appendix E, p. E03. The article reported specific findings that, as between violent video games, 8 movies, televisions, and Internet content, "[r]egression analyses indicated that only exposure to 9 video game violence was associated with (lower) empathy." Appendix E, p. E001 (internal 10 citations omitted). Empathy is "the capacity to perceive and to experience the state of another 11 [and] is critical to the process of moral evaluation." Appendix E, p. E004. Evidence in the 12 legislative record plainly demonstrates a "[r]elationship[] between lower empathy and social 13 maladjustment and aggression in youth . . . ." Ibid. 14 Other research in the legislative record demonstrates the impact violent video games have 15 on brain activity. One such study, conducted over a two-year period and reported by the Indiana 16 University School of Medicine, concluded that "[t]here appears to be a difference in the way the 17 brain responds depending upon the amount of past violent media exposure through video games, 18 movies and television."11/ For minors previously diagnosed with disruptive behavior disorders 19 (DBD), the research demonstrated "less brain activity in the frontal lobe while the youths with 20 DBD watch violent video games." The frontal lobe "is the area of the brain responsible for 21 decision-making and behavior control, as well as attention and a variety of other cognitive 22 functions." Brain function was also altered in non-DBD youth. Appendix A, p. A127. 23 /// 24 10. Request for Judicial Notice, Ex. 2, Senate Rules Committee analysis of AB 1179, pp. 4-5; "Violent Video Game Bibliography," Appendix A, A014; Appendix E, p. E001, Funk, et al., 26 Violence Exposure in Real-Life, Video Games, Television, Movies, and the Internet: Is There Desensitization?, Journal of Adolescence 27 (2004) 23-39. 27 11. Appendix A, p. A127, Aggressive Youths, Violent Video Games Trigger Unusual Brain 28 Activity, Indiana University School of Medicine, December 2, 2002. 25 Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 9 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 11 of 31 1 The evidence regarding the negative impacts playing violent video games have on children 2 is bolstered by the unanimous position taken by multiple professional medical associations. By 3 correspondence dated April 15, 2005, the American Academy of Pediatrics informed the 4 Legislature that "early studies on video games indicate that the effects of child-initiated virtual 5 violence may be even more profound than those of passive media, such as televisions . . . . The 6 time has passed for contemplating and discussing whether violence in video games and other 7 media are harmful to our children. Action is needed." Appendix A, p. A085. The California 8 Psychiatric Association informed the Legislature as follows: 9 10 11 12 13 We believe that your legislation will provide a significant step towards decreasing child and adolescent aggression and violence. We believe it could also result in fewer child and adolescent behavioral, aggression and violence problems in homes, schools and communities. Were your bill to become law we would also expect to see a lessening of not only aggression, but symptoms of anxiety, depression, agitation and social isolation for many young people already predisposed to behavioral problems or with Severely Emotionally Disturbed diagnoses, or with Severe Persistent Mental Illness. 14 Appendix A, p. A082-084. 15 The evidence considered by the Legislature is truly substantial. Indeed, the United States 16 District Court for the Western District of Washington recently reviewed similar research and 17 came to the same conclusion as the California Legislature. In Video Software Dealers Ass'n v. 18 Maleng, the court expressly found that existing evidence and expert opinions supported the 19 finding that "the depictions of violence with which we are constantly bombarded in movies, 20 television, computer games, interactive videos games, etc., have some immediate and 21 measurable effect on the level of aggression experienced by some viewers and that the unique 22 characteristics of video games, such as their interactive qualities, the first-person identification 23 aspect, and the repetitive nature of the action, makes video games potentially more harmful to 24 the psychological well-being of minors than other forms of media." 325 F. Supp. 2d 1180, 1188 25 (W.D. Wash. 2004) (emphasis added). 26 In Maleng, the court struck down the video game ordinance not because existing research 27 did not support the state's finding that violent video games cause harm to minors, but because 28 the court found that "there has been no showing that exposure to video games that `trivialize Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 10 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 12 of 31 1 violence against law enforcement officers' is likely to lead to actual violence against such 2 officers." Ibid. The act at issue in Maleng did not seek to prevent harm to minors, it sought to 3 prevent minors from inflicting harm on law enforcement officers - an interest that is separate and 4 distinct from that sought to be advanced by California. Id. at p. 1186. In the instant case, 5 California is seeking to prevent harm to minors, not to prevent them from committing violent 6 acts. 7 True, other courts have considered older research and found it insufficient to support similar 8 legislation. Judge Posner, for example, writing for the panel in American Amusement Machine 9 Ass'n v. Kendrick, stated in dicta that "shield[ing] children right up to the age of 18 from 10 exposure to violent descriptions and images would not only be quixotic, but deforming; it would 11 leave them unequipped to cope with the world as we know it." 244 F.3d at p. 577 (2001). Judge 12 Posner's dicta has no application here for two reasons. First, the research relied upon in 13 Kendrick was from 2000 and prior (when Dr. Anderson first began publishing on the effects of 14 violent video games) California has the benefit of over five years of additional research and 15 publications on the subject. And second, the Act does not "shield" children from anything. The 16 State is simply assisting parents in making the determination as to whether their children should 17 be allowed to play the video games covered by the Act. The Act does not prohibit children from 18 playing the covered video games. Rather, it simply takes that decision out of the hands of store 19 clerks and places it in the hands of parents where it should properly rest. Interestingly, Judge 20 Posner fails to explain how helping parents prevent their children from playing games that are so 21 violent that they appeal to a child's deviant or morbid interest can under any circumstances be 22 "deforming" or "leave them unequipped to cope with the world." Such dicta is entirely 23 unsupportable. 24 Automatic aggressiveness, increased aggressive thoughts and behavior, antisocial behavior, 25 desensitization, poor school performance, reduced activity in the frontal lobes of the brain each 26 represents a distinct harm to the developing minds of children. And prevailing social science 27 points directly to violent video games as a major culprit. Presented with such substantial 28 evidence, the Legislature could not simply ignore the deleterious effects these video games are Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 11 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 13 of 31 1 having on children. The Legislature's finding that the video games covered by the Act cause 2 harm to children is supported by substantial evidence. 3 Nevertheless, if this Court considers it necessary for the State to more fully elaborate on the 4 present state of the research regarding the harmful effects violent video games have on children 5 prior to deciding the issues raised in the motions for summary judgment, the State respectfully 6 requests that the Court grant summary adjudication in favor of the State on the narrow tailoring, 7 vagueness, labeling, and Equal Protection issues raised herein, and deny summary judgment to 8 all parties. The parties can then proceed to trial on the remaining issues. 9 10 11 2. The State Is Not Required To Perform Experiments On Children, Exposing Them To Video Games So Violent That They Are Patently Offensive and Appeal To A Deviant or Morbid Interest In Children, In Order to Support The Act. Never before has a state been required to perform experiments on children in order to 12 justify legislation seeking to protect them from harm. No responsible governing body would 13 even consider doing so. The very premise of the idea is absurd inflict harm on children just to 14 make sure that the children will be harmed. But Plaintiffs have consistently taken the position 15 that the First Amendment prohibits the State from even finding a compelling interest in this case 16 absent such proof. Their position is untenable, at best, and truly irresponsible. 17 It is beyond argument that the Supreme Court allows states to regulate children's exposure 18 to sexual material. Ginsberg, supra, 390 U.S. 629. But no court has ever required a state to 19 demonstrate a direct causal link between such exposure and the harm to be prevented, such as a 20 child becoming prematurely sexually active from viewing the material. The law does not require 21 states to use children as guinea pigs, exposing them to material that prevailing social science has 22 found to cause harm, in order to justify legislation seeking to protect them from the harm. 23 Instead, the law recognizes that responsible social science must use field experiments, 24 cross-sectional correlation studies, longitudinal studies, and meta-analyses combining the results 25 of other studies to form conclusions regarding causation. Indeed, entire scientific fields,( e.g., 26 astronomy), are based on correlational data obtained through observation. Children can be 27 observed and surveyed regarding the video games they play, observed interacting with other 28 children and teachers, their school performance can be reviewed, and correlations can be Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 12 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 14 of 31 1 obtained and professional opinions formed regarding the impact that playing violent video games 2 have on children. From those conclusions, responsible social science can also form opinions and 3 draw conclusions regarding the impact that playing ultra-violent video games, those covered by 4 the Act, can have on children. Of course, not all children are the same and not all children will 5 suffer the same deleterious effects of playing the games covered by the Act. And not all smokers 6 will get lung cancer, while some who never have smoked will. This certainly does not mean that 7 smoking is not harmful it is widely accepted that first and second-hand smoke cause lung 8 cancer despite the absence of direct causation. This absence of direct causation also certainly 9 does not mean that a state has no compelling interest in protecting its citizens from the harm. 10 Absent intrusive, unethical, and possibly illegal experimentation on children, social science 11 may never be able to discover a single environmental variable that causes automatic aggression, 12 increased aggressive behavior, antisocial behavior, desensitization to violence, and poor school 13 performance in children. But such is not demanded by the First Amendment. All that is required 14 is that the legislative body consider the available evidence, and draw reasonable inferences from 15 the evidence considered. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994). 16 The Supreme Court recognizes that "[s]ound policymaking often requires legislators to forecast 17 future events and to anticipate the likely impact of these events based on deductions and 18 inferences for which complete empirical support may be unavailable." Ibid. Once the legislative 19 body does so, courts "must accord substantial deference to the predictive judgments" of the 20 legislative body. Ibid. 21 The substantial evidence standard is not the equivalent of the clear and convincing standard, 22 or even the reasonable doubt standard. Absolute certainty is not required. This standard leaves 23 room for reasonable minds to differ. It is the job of the legislative and executive branches to 24 consider the evidence presented and make the final determination. Upon reviewing the final 25 determination, the Supreme Court has made it clear that the substantial evidence standard "is not 26 a license to reweigh the evidence de novo, or to replace [the legislature's] factual predictions 27 with our own. Rather, it is to assure that, in formulating its judgments, [the legislature] has 28 drawn reasonable inferences based on substantial evidence." Turner Broadcasting System, Inc., Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 13 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 15 of 31 1 supra, 512 U.S. at p. 666. 2 In the instant case, the Legislature considered the very best evidence available regarding the 3 harmful effects that playing ultra-violent video games have on children. As discussed above, the 4 Legislature considered dozens of published studies and reports, and considered the unanimous 5 position taken by the leading professional associations in the child development and medical 6 fields. The Legislature's determination that assisting parents in combating the deleterious effects 7 of playing the video games covered by the Act represents a compelling interest is supported by 8 the prevailing view in the professional community. The Legislature was not required to demand 9 laboratory experiments where children are forced to play such vile video games like Postal II, 10 bashing women with a shovel until the head pops off and setting on fire images of humans that 11 appear to be alive, begging for their life. The First Amendment does not demand such an 12 absurdity. It cannot be said that, in siding with the prevailing view of the healthcare community 13 and dozens of studies, the State's determination was not a reasonable inference based upon 14 substantial evidence. 15 C. 16 The Act Is Narrowly Tailored To Advance The State's Compelling Interest. The Act survives strict scrutiny because the State has chosen the least restrictive means to 17 advance its compelling interest. Sable Communication of Cal., Inc., supra, 492 U.S. at p. 126. 18 19 1. The Act Applies Only to Video Games Given Their Unique Interactive Nature. The Legislature had substantial evidence to determine that extremely violent video games, 20 given their interactive nature requiring players to affirmatively cause characters to engage in 21 extreme violence, pose a special risk of harm to children beyond the passive viewing of 22 television or movies. 23 Video games are uniquely interactive. The player controls the characters in first-person, 24 causing them to shoot, stab, beat, stomp, run over, or ignite the opponent. Often this is the entire 25 point of the game. The American Academy of Pediatrics advised the Legislature that "early 26 studies on video games indicate that the effects of child-initiated virtual violence may even be 27 more profound than those of passive media, such as television." Appendix A, p. A085. The 28 California Psychiatric Association mirrored these concerns when it advised the Legislature that Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 14 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 16 of 31 1 violent content in "interactive media" have "more significantly severe negative impacts than 2 those wrought by television, movies, or music." Appendix A, p. A082. The California 3 Psychological Association informed the Legislature that the research "point[s] overwhelmingly 4 to a causal connection between media violence and aggressive behavior in some children" and 5 that "[t]he interactive nature of video games exacerbates this problem." Appendix A, p. A081. 6 And according to the American Psychological Association, "violent video games may be more 7 harmful than violent television and movies because they are interactive, very engrossing and 8 require the player to identify with the aggressor . . . ."12/ 9 Plaintiffs likely would not dispute that video games, given their interactive nature, can be 10 excellent mechanisms for teaching minors a variety of subject matters. The Legislature 11 considered the research that supports this conclusion.13/ But just as the interactive nature of 12 video games makes them exemplary teachers, it is this interactive nature that also posses a 13 special risk to minors when the games contain extreme violence. 14 Focusing the Act on such interactive video games is the only means through which the 15 Legislature could attempt to remedy the exacerbated harm caused thereby. Although the 16 Legislature was presented with evidence that extreme violence in other forms of media can also 17 cause harm to minors, substantial evidence supports the determination that the interactive nature 18 of video games poses a special risk. The Legislature was more than justified in focusing on this 19 narrow medium of violent material. 20 21 2. The Category of Video Games Covered By The Act Is Exceedingly Narrow. By definition, the Act covers only those games that, as a whole, a reasonable person would 22 find appeal to a deviant or morbid interest of minors, are patently offensive by community 23 standards as to what is suitable for minors, and lack serious literary, artistic, political, or 24 25 26 12. 13. Appendix B, p. B003, Gentile & Gentile, Violent Video Games as Exemplary Teachers, 27 paper presented at Biennial Meeting of the Society for Research in Child Development, April 9, 2005 (concluding that playing violent video games leads to greater hostile attribution bias and 28 increased aggressive behaviors -- "exemplary" teaching of aggression). Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 15 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 17 of 31 1 scientific value for minors. Civil Code, 1746(d)(1). The Act provides an alternative definition 2 with precise terms that cover only the most "especially heinous" depictions of violence on a 3 substantially human character. Video games meeting either definition, an exceedingly narrow 4 category of video games, contain little if any expression. 5 In contrast, the video game ordinance at issue in Interactive Digital Software Association v. 6 St. Louis County, 329 F.3d 954 (8th Cir. 2003), relied heavily upon by Plaintiffs, applied to all 7 "graphically violent video games," and was not narrowly drawn. Because the Act at issue 8 covers only an exceedingly narrow category of violent video games, it is narrowly tailored. 9 10 11 3. The Act Does Not Restrict Adult Access to Any Video Games, and Does Not Prohibit Children From Playing the Games, Only Purchasing Them Without Adult Supervision. The Act poses none of the problems raised in prior Supreme Court precedent where 12 Congress sought to regulate indecent speech as to minors, but also prohibited adult access to the 13 covered material. See United States v. Playboy Ent. Group, 529 U.S. 803, 812-817 (2000) 14 (regulation of "signal bleeding" of indecent programing invalid because it also prohibited adult 15 access); Sable Communications, supra, 492 U.S. at 127 (ban on "dial-a-porn" to protect minors 16 struck down for prohibiting adult access to protected speech). Here, the Act is specifically 17 limited to children. Adult access to video games remains unimpeded. 18 And should parents or guardians desire children to have access to such games, they can 19 purchase the games for the child. By containing this safe harbor, the Act hits only the 20 specifically desired target children whose parents do not want them exposed to the extremely 21 violent video games. Alternative avenues for children's access to the covered games are written 22 into the Act. Thus, any burden placed on children is minimal. They need only persuade their 23 parent or guardian to purchase these games for them. 24 25 26 4. No Less Restrictive Means Exists For Ensuring, Through Threat of Civil Penalty, That Children Only Have Access to Extremely Violent Video Games With Parental Knowledge. The presence of industry self-regulation has limited relevance in this case. The self- 27 imposed ratings described in detail by Plaintiffs simply do not carry the force of a state law, the 28 violation of which subjects the offender to civil penalty. The Legislature considered substantial Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 16 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 18 of 31 1 evidence demonstrating that the effectiveness of the video game industry's self-regulation is 2 simply unacceptable. The Senate Judiciary Committee analysis raised the issue, stating, "[t]he 3 author acknowledges that the ESRB rating system is currently in place, but argues that its 4 implementation has been unsatisfactory." RJN, Exhibit 1, p. 13. In fact, the Legislature 5 considered that "[r]ecent studies show that the voluntary rating and enforcement system 6 implemented by self-regulatory associations or entertainment producers have had limited success 7 on decreasing youth access to Mature (M) rated video games." RJN, Exhibit 1, pp. 13-14. They 8 were also made aware that "[d]uring 2004, the National Institute on Media and the Family had 9 children between the ages of seven and fourteen attempt to purchase M-rated games in thirty-five 10 stores. Youth succeeded 34% of the time. While the overall purchase rate was 34%, boys as 11 young as seven were able to buy M-rated games 50% of the time." RJN, Exhibit 1, pp. 13-14. 12 The Legislature was also aware that "a nationwide undercover survey of stores completed by the 13 Federal Trade Commission in 2003 corroborated these findings. In this study, 69% of 14 unaccompanied 13 to 16-year-olds purchased M-rated games and only 24% of cashiers asked the 15 youth's age." RJN, Exhibit 1, pp. 13-14. 16 The ineffectiveness of the industry's attempts to self-regulate comes as no surprise. 17 According to a Federal Trade Commission ("FTC") report to Congress, cited to the Legislature 18 in the Senate Judiciary Committee analysis, the industry specifically markets M-rated (Mature) 19 games to minors.14/ The FTC report states, "[a]ccording to industry data, nearly 40% of M-rated 20 games purchased in 2002 were for children under 17." Appendix E, p. E053. Although 21 Plaintiffs claim they have implemented new enforcement provisions, the FTC report concluded 22 that "[t]he industry is actively enforcing those standards and penalizing those companies found 23 to be in noncompliance. Yet those standards permit, and, in fact, industry members continue to 24 place, advertisements in television and print media with substantial youth audiences." Appendix 25 E, p. E054. 26 27 14. Appendix E, p. E020, FTC July 2004 Report, at pp. 20-28; Request for Judicial Notice, 28 Exhibit 1, pp. 13-14. Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 17 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 19 of 31 1 The Legislature was not willing to simply maintain the status quo, hoping that purported 2 industry efforts would eventually eliminate children's access to extremely violent video games. 3 The Act is thus narrowly tailored to ensure that, through threat of civil penalty, only with 4 parental 5 knowledge will children have access to the most extremely violent video games. No less 6 restrictive means of achieving this goal exists. 7 8 9 10 II. BECAUSE THE ACT'S DEFINITIONS ARE NOT IMPERMISSIBLY VAGUE, THE STATE IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW. The Legislature carefully drafted the language of the Act to enable a person of ordinary 11 intelligence to discern what violent video games may not be sold or rented to children. The Act's 12 definition provides: 13 14 15 16 17 18 (1) "Violent video game" means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following: (A) Comes within all of the following descriptions: (i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors. (ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors. (iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors. 19 Civil Code, 1746(d). The Act provides a secondary definition, but only one need be met for 20 purposes of the Act. 21 A law is not unconstitutionally vague where it provides "a person of ordinary intelligence a 22 reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. 23 City of Rockford, 408 U.S. 104, 108 (1979); see also Daily v. Bond, 623 F.2d 624, 626 (9th Cir. 24 1980) ( a statute is not unconstitutionally vague if it gives fair warning of the proscribed 25 conduct). The key terms of the Act are defined with precision. An ordinary person, using 26 common sense, is capable of determining which games fall into the "violent video game" 27 category. 28 In reviewing a business regulation for facial vagueness, the principal inquiry is whether the Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 18 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 20 of 31 1 law affords fair warning of what is proscribed. Village of Hoffman Estates v. The Flipside, 455 2 U.S. 489 (1982) (finding in a pre-enforcement challenge of a law that prohibited the sale of 3 certain drug paraphernalia that the statute contained some ambiguities, but holding that it was 4 sufficiently clear to provide notice and was not impermissibly vague). In Village of Hoffman 5 Estates, the Supreme Court recognized that "economic regulation is subject to a less strict 6 vagueness test because its subject matter is often more narrow, and because businesses, which 7 face economic demands to plan behavior carefully, can be expected to consult relevant 8 legislation in advance of action . . . . The Court has also expressed greater tolerance of 9 enactments with civil rather than criminal penalties because the consequences of imprecision are 10 qualitatively less severe." Id. at 498-99 (footnotes omitted). Here, the key terms are defined 11 with precision such that a person of ordinary intelligence will understand the meaning and 12 application. 13 A person of ordinary intelligence will easily be capable of playing a video game and 14 determining if the level of violence available to the player meets a definition contained in the 15 Act. Does the game allow a player to kill, maim, dismember, or sexually assault an image of a 16 human being? Would a reasonable person, considering the game as a whole, find that it appeals 17 to a deviant or morbid interest of minors? Is the game patently offensive to prevailing standards 18 in the community as to what is suitable for minors? And does the violence cause the game, as a 19 whole, to lack serious literary, artistic, political, or scientific value for minors? A person of 20 ordinary intelligence can surely apply this straight forward test to any video game. 21 Moreover, as to the terms used in the secondary definition, including "heinous, cruel and 22 depraved" and "serious physical abuse" and "torture," the Legislature used definitions that had 23 already been deemed constitutional by courts in other contexts. The Supreme Court has found 24 that any vagueness in the statutory definition of "heinous, cruel, and depraved" is cured by the 25 limitation that the statutory definition of the offense involve torture or serious physical abuse. 26 See Walton v. Arizona, 497 U.S. 639, 654-55 (1990) (overruled on other grounds) (upholding a 27 death penalty statute that used these definitions); United States v. Jones, 132 F.3d 232, 249-50 28 (5th Cir. 1998) (finding that similar definitions for cruel, depraved, heinous, serious physical Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 19 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 21 of 31 1 abuse and torture were not unconstitutionally vague and did not lead to an arbitrary imposition of 2 the death penalty). In the Act, the definitions for "heinous," "cruel" and "depraved" include 3 qualifications requiring the act include torture or serious physical abuse of the victim. It 4 therefore survives the vagueness challenge as the death penalty statute in Walton survived. And 5 the definitions for "serious physical abuse" and "torture" are almost identical to definitions used 6 in a death penalty statute that survived a vagueness challenge in at least one Appellate Court. 7 See United States v. Jones, 132 F.3d at 250. 8 Additionally, the Act restricts only certain forms of violence against "an image of a human 9 being;" there are no restrictions on violence against non-humans. The argument that the Act is 10 impermissibly vague because video games are a creative medium divorced from everyday reality 11 with non-human and animal-like characters is not persuasive. However, a person of ordinary 12 intelligence can determine whether or not a video game depicts an "image of a human being." 13 To be sure, the video game industry already independently reviews and rates the level of 14 violence in video games for all platforms.15/ For more than ten years the ESRB has had a rating 15 system for computer and video games, and the rating system offers actual ratings for age 16 appropriateness of content and short descriptive phrases. Lowenstein Decl., 7. Under this 17 rating system, the ESRB rates certain games as "AO" (Adults Only), and games with this 18 designation contain content that the ESRB suggests should only be played by users 18 and older. 19 Lowenstein Decl., 8. In making these determinations, the ESRB states that "AO" games "have 20 content that should only be played by persons 18 years and older. Titles in this category may 21 include prolonged scenes of intense violence and/or graphic sexual content and nudity." 22 Lowenstein Decl., Exhibit A. The ESRB defines "intense violence" as "graphic and realistic23 looking depictions of physical conflict. May involve extreme and/or realistic blood, gore, 24 weapons, and depictions of human injury and death." Ibid. A distinction is made by the ESRB 25 between "intense violence" and "violence" which is defined as "scenes involving aggressive 26 conflict." Ibid. Thus, the industry is already reviewing and rating video games based on violent 27 15. See Declaration of Douglas Lowenstein submitted in support of Plaintiffs' Motion for 28 Preliminary Injunction, on file herein, at 4. Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 20 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 22 of 31 1 content. The requirements of the Act may require a similar process of reviewing and rating the 2 video games, based on the Act's own definitions and guidelines. 3 The definitions in this statute require common sense judgment. The parameters of the 4 statute are sufficiently clear to give notice to an ordinary person applying the Act. Mathematical 5 precision in definitional terms is not required to meet the constitutional standard and a certain 6 amount of flexibility in the statute is permissible. See Grayned, 408 U.S. at 110-111. "It will 7 always be true that the fertile legal `imagination can conjure up hypothetical cases in which the 8 meaning of [disputed] terms will be in nice question.'" Id. at n. 15 (internal citations omitted). 9 Similar to the statue in Grayned, the terms used in this Act "delineates its reach in words of 10 common understanding." Id. at p. 112 (internal citation omitted). Notwithstanding creative 11 hypotheticals, the terms used in this Act are ones with a common, straightforward understanding 12 and meaning. Therefore, as a matter of law, the Act's definition of violent video game is not 13 impermissibly vague. 14 15 16 17 A. 18 III. BECAUSE THE ACT'S LABELING PROVISION IS CONSTITUTIONAL, THE STATE IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW. The Act's Labeling Requirement Regulates Purely Commercial Speech. The Act provides that each video game covered by the Act "that is imported into or 19 distributed into California for retail sale shall be labeled with a solid white `18 ' outlined in 20 black. The `18' shall have dimensions of no less than 2 inches by 2 inches" and "shall be 21 displayed on the front face of the video game package." Civ. Code, 1746.2. Plaintiffs' claim 22 that the this provision of the Act violates the First Amendment because it allegedly compels 23 them "to disseminate the government's message that minor's should be denied access to certain 24 video games . . . ." Compl., 57. However, because the Act's labeling requirement expressly 25 impacts only the commercial speech aspect of the covered video games, it is subject to and 26 survives judicial scrutiny under Zauderer v. Office of Disciplinary Counsel of The Supreme 27 Court of Ohio, 471 U.S. 626 (1985), as a matter of law. 28 In Zauderer, the Supreme Court upheld a requirement that attorneys advertising services on Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 21 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 23 of 31 1 contingent-fee basis disclose that clients will have to pay costs even if their lawsuits are 2 unsuccessful. Id., at pp. 652-53. The Court held that, in reviewing government mandated 3 disclosure requirements of factual information in advertising, the "constitutionally protected 4 interest in not providing any particular factual information in . . . advertising is minimal." Id., at 5 p. 651. The Court set forth the appropriate level of judicial review for such disclosure 6 requirements on commercial speech: "we hold that an advertiser's rights are adequately 7 protected as long as disclosure requirements are reasonably related to the State's interest in 8 preventing deception of consumers." Ibid. And when "the possibility of deception is . . . self9 evident . . . we need not require the State to `conduct a survey of the . . . public before it [may] 10 determine that the [advertisement] had a tendency to mislead.'" Id., at pp. 652-53 (internal 11 citation omitted). This lesser standard of review is appropriate because "the extension of First 12 Amendment protection to commercial speech is justified principally by the value to consumers 13 of the information such speech provides . . . ." Id., at p. 651. 14 By its plain language, the labeling provision of the Act applies only to covered video games 15 that are "for retail sale" in California. Act, Civ. Code, 1746.2. The cover of a video game 16 displayed for retail sale is the prime advertising space which easily communicates messages to 17 potential consumers and retailer. "[A]dvertising pure and simple" constitutes commercial speech 18 for purposes of First Amendment analysis. Zauderer, supra, 471 U.S. at p. 637. Because the 19 Act's labeling provision impacts the purely commercial aspect regarding retail sales of the 20 covered video games, they are subject to review under Zauderer. 21 The Act's labeling requirement serves the self-evidence purpose of communicating to 22 consumers and store clerks that the video game cannot be legally purchased by anyone under 18 23 years of age. This requirement is necessary, in part, because of the misleading effect of the 24 ratings included on the cover of video games by the industry itself. The cover of video games 25 sold in California presently display the ESRB's independent, self-imposed rating from "E" for 26 Everyone to "AO" for Adults Only. Lowenstein Decl., 4-8. Such ratings only reflect the 27 industry's recommendation of the appropriate age group of the particular games and do not 28 communicate any factual information regarding the legality of the sale of the game to children. Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 22 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 24 of 31 1 It is self-evident that individuals and store clerks could be deceived by the ESRB rating 2 appearing on the cover of a game subject to the Act's restrictions, believing that an "M" or "AO" 3 rating can legally be sold to children. Absent the "18" label appearing on the cover of such 4 games, consumers and store clerks would have essentially no way of knowing whether or not a 5 child could legally purchase the game. Thus, the labeling requirement is reasonably related to 6 the State's interest in preventing deception to consumers and retailers. 7 B. 8 The Act Is Not Subject To Review As Compelled Speech. The labeling requirements of the Act do not compel speech and strict scrutiny does not 9 apply to this provision of the Act. The facts of this case are not similar to Riley v. Nat'l Fed'n of 10 the Blind of N.C., Inc. or Pacific Gas & Electric Co. v. Public Utilities Commission of California 11 where the Supreme Court struck down content-based regulations that compelled speech. In 12 Riley, the Court struck down a law which regulated professional fundraisers and required the 13 fundraisers to disclose to potential donors the average percentage of gross receipts actually 14 turned over to charities during a certain period of time. Riley v. Nat'l Fed'n of the Blind of N.C., 15 Inc., 487 U.S. 781, 784 (1988). Riley and earlier precedent squarely held that charitable 16 solicitations involve a variety of core speech interests that are within the protection of the First 17 Amendment and "have not been dealt with as `purely commercial speech.'" Id. at 788. The Act 18 does not regulate a charitable solicitation and is not comparable to the statute in Riley. Instead, 19 the Act regulates pure commercial speech regarding the advertising of covered games for retail 20 sale. 21 Similarly, in Pacific Gas & Electric Co., the Court found that the California Public Utilities 22 Commission may not require a privately owned utility company to include in its billing 23 envelopes speech of a private third party organization with which the utility disagrees. 475 U.S. 24 1, 20 (1986). In Pacific Gas & Electric Co., the Court expressly found that the information the 25 utility provides in its envelopes "extends well beyond speech that proposes a business 26 transaction . . . and includes the kind of discussion of `matters of public concern' that the First 27 Amendment both fully protects and implicitly encourages." Id., at p. 9. 28 Here, in contrast, the "18" is a label required to be placed on the cover of the game to Governor & Attorney General's MSJ Video Software Dealers Association, et al. v. Arnold Schwarzenegger, et al. C 05 4188 RMW RS 23 Case 5:05-cv-04188-RMW Document 70 Filed 03/30/2006 Page 25 of 31 1 communicate factual, legal information to consumers and retailers -- expressly related to a 2 proposed business transaction. And the label is required by the state government, not a private 3 third party, to inform the public that a specific game cannot legally be sold to anyone under 18.16/ 4 Under no circumstances can the labeling requirement of the Act be considered compelled speech 5 subject to strict scrutiny. Therefore, the State is entitled to judgment as a matter of law on the 6 issue of the constitutionality of the Act's labeling requirement. 7 8 9 IV. THE ACT DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE. Plaintiffs' claim that the Act violates the Equal Protection Clause because it regulates only

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