Newbs Lose, Experts Win: Video Games in the Supreme Court

• Jurisdiction: United States,Federal
• Citation: Vol. 95
• Publication year: 2021

95 Nebraska L. Rev. 965. Newbs Lose, Experts Win: Video Games in the Supreme Court

Newbs Lose, Experts Win: Video Games in the Supreme Court

Angela J. Campbell(fn*)

Table of Contents

I. Introduction .......................................... 966

II. The Advantage of a Supreme Court Expert ............ 971
A. California's Counsel ............................... 972
B. Entertainment Merchant Association's (EMA) Counsel ........................................... 973

III. Background on the Video Game Cases ................. 975
A. Cases Prior to Brown v. Entertainment Merchants Ass'n .............................................. 975
B. Brown v. Entertainment Merchants Ass'n .......... 978
1. Before the District Court ...................... 980
2. Before the Ninth Circuit ....................... 980
3. Supreme Court ................................ 984

IV. Comparison of Expert and Non-Expert Representation in Brown ............................................. 985
A. Merits Briefs ...................................... 985
1. Statement of Facts ............................ 986
a. California's Statement of Facts ............. 987
b. EMA's Statement of Facts .................. 988
c. A More Effective Statement of Facts ........ 989
2. Arguments .................................... 991
a. Standard of Review ........................ 991
b. California's Arguments ..................... 992
c. EMA's Arguments ......................... 993
3. California's Risky Strategy ..................... 995
B. Alternative Arguments ............................ 998
1. Facial Challenge ............................... 998
2. Intermediate Scrutiny ......................... 999
3. Whose First Amendment Rights? ............... 1000

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4. Strict Scrutiny ................................. 1001
C. Amicus Briefs ..................................... 1002
1. Briefs Supporting California ................... 1003
2. Briefs Supporting EMA ........................ 1005
3. Influence of the Amicus Briefs on the Justices . . 1008
D. Oral Argument .................................... 1009
1. Role of Experience ............................. 1010
2. Quantitative Analysis .......................... 1011
3. Qualitative Analysis ........................... 1012
a. Morazzini's Oral Argument ................. 1013
b. Smith's Oral Argument .................... 1016

V. Did Advocacy Matter? ................................. 1018

VI. Conclusion ............................................ 1021

Appendix .................................................. 1023

I. INTRODUCTION

Newb: A term used to describe an inexperienced gamer/person/etc. Unlike a noob, a newb is someone who actually wants to get better.(fn1)

In the five years since the Supreme Court found unconstitutional a California statute prohibiting the sale of ultra-violent video games to minors in Brown v. Entertainment Merchants Ass'n,(fn2) not a single jurisdiction has passed a law regulating the sale of violent video games to minors. The absence of legislation is striking in light of several subsequent and highly publicized shootings linked to violent video games. For example, after Adam Lanza shot and killed twenty elementary school students in Newtown, Connecticut, in December 2012, it was widely reported that Lanza spent most of his day in the basement playing violent video games such as Call of Duty.(fn3)

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After the Newtown shootings, some officials called for new legislation.(fn4) New Jersey Governor Chris Christie, for example, sought legislation to limit the sale of violent video games to minors.(fn5) West Virginia Senator John Rockefeller introduced a bill to fund the National Academy of Sciences to study the impact of violent video games and violent video programming on children.(fn6) Utah Representative Jim Matheson introduced a bill that would have prohibited the sale or rental of video games to minors with an Entertainment Software Ratings Board (ESRB) rating of "adults only" or "mature."(fn7) But none of these measures passed.

Moreover, policymakers seem to have lost interest in even trying to pass legislation. After the shootings at the Washington Navy Yard in September 2013, for example, "cable news hosts quickly homed in on the shooter's obsession with playing military-style online games, repeatedly asking whether it was a factor in the mass shootings."(fn8) This time, however, "that line of questioning was all but missing . . . on Capitol Hill, where hardly a word was uttered about video game violence."(fn9)

It is not surprising states have given up trying to prevent the sale of violent video games to minors. The Brown decision found that

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"[b]ecause the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny-that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest."(fn10) It is extremely difficult to meet the test for strict scrutiny.

In Brown, the majority concluded that California failed to meet the test because:

[t]he State's evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, "[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology."(fn11)

Much of the scholarly commentary before and after the Brown decision focused on whether social science research shows violent video games "cause" violence or other harmful effects in the real world. Dr. Craig Anderson, distinguished professor of psychology at Iowa State University, has published multiple studies finding that exposure to violent video games makes youths more aggressive and less caring.(fn12) His work has been relied on by states and localities in passing legislation regulating minors' access to violent video games.(fn13) But he is not alone; many other researchers have also found negative consequences from playing violent video games.(fn14)

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Dr. Christopher Ferguson is probably the most vocal and prolific critic of the research on video game violence.(fn15) He has criticized researchers for making claims not supported by the data, failing to address or even mention research that reaches a different conclusion, and overstating causality.(fn16) After the Brown decision, he called on the psychological community to view the decision as "an opportunity to learn from the mistakes made and to begin the process of scientific self-correction."(fn17) Anderson and others have responded to these criticisms.(fn18) Nonetheless, the debate over the effects of video game violence continues.(fn19)

Other scholarship has examined whether courts correctly understand the scientific evidence on video game violence. William K. Ford, for example, concluded that "[o]n the whole, the courts did a mediocre job of assessing the scientific evidence."(fn20) One problem was simply the large volume of research. Ford found that no court analyzed the entire literature on video game violence.(fn21) Also, judges and lawyers lacked the training and background knowledge to understand scien-

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tific literature.(fn22) He suggests that judges are "insufficiently exposed to scientific writings that are forthcoming about their weaknesses or limitations," which may explain why the courts "treated standard scholarly statements about the limitations of their work as something closer to admissions of failure."(fn23) Ford cites the Ninth Circuit decision as an example of a court rejecting research due to readily admitted flaws.(fn24) Yet, the Brown majority opinion accepted that reasoning uncritically.(fn25) Others, however, have defended the majority's dismissal of the scientific literature as properly recognizing "that correlational data are insufficient to overcome basic First Amendment principles."(fn26)

This Article focuses on the role of the lawyers using the framework described by Professor Richard J. Lazarus in his 2008 article, Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar.(fn27) Lazarus argues the modern Supreme Court bar has come to be dominated by a small number of Supreme Court specialists. Because of their experience and superior knowledge of the Justices and Supreme Court practice, Supreme Court specialists are more likely to obtain outcomes desired by their clients, which are typically large corporations or industry trade associations.(fn28) Consistent with Lazarus's finding, this Article shows the video game industry's representation by a Supreme Court specialist in Brown gave it advantages over California that likely affected the outcome of the case.

Part II analyzes whether the counsel in Brown fit within Lazarus's definition of a Supreme Court specialist. Part III provides background on the Brown case and the cases that came before it. Part IV compares the expert and non-expert representation in Brown by examining the parties' briefs, the amicus briefs, and the oral argument. Finally, Part V explores whether the case might have come out differently if both sides had been represented by Supreme Court specialists.

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It concludes that with expert representation, California could have captured the five votes necessary to win, or at least obtained a narrower decision that would have allowed the legislature to try again to craft a law that could survive a constitutional challenge.

II...