Video Software Dealers Association v. Schwarzenegger

• Decision Date: 20 February 2009
• Docket Number: No. 07-16620.,07-16620.
• Parties: VIDEO SOFTWARE DEALERS ASSOCIATION; Entertainment Software Association, Plaintiffs-Appellees, v. Arnold SCHWARZENEGGER, in his official capacity as Governor State of California; Edmund G. Brown, Jr., in his official capacity as Attorney General, State of California, Defendants-Appellants, and 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; Ann Miller Ravel, in her official capacity as County Counsel for the County of Santa Clara, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

556 F.3d 950

VIDEO SOFTWARE DEALERS ASSOCIATION; Entertainment Software Association, Plaintiffs-Appellees, v. Arnold SCHWARZENEGGER, in his official capacity as Governor State of California; Edmund G. Brown, Jr., in his official capacity as Attorney General, State of California, Defendants-Appellants, and 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; Ann Miller Ravel, in her official capacity as County Counsel for the County of Santa Clara, Defendants.

No. 07-16620.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 29, 2008.

Filed February 20, 2009.

Zachery P. Morazzini, Deputy Attorney General for the State of California, on behalf of Defendants-Appellants Arnold Schwarzenegger, in his official capacity as Governor of the State of California, and Edmund G. Brown, in his official capacity as Attorney General of the State of California.

Paul M. Smith, Jenner & Block LLP, on behalf of Plaintiffs-Appellees Video Software Dealers Association and Entertainment Software Association.

Appeal from the United States District Court for the Northern District of California, Ronald M. Whyte, District Judge, Presiding. D.C. No. CV-05-04188-RMW.

Before: ALEX KOZINSKI, Chief Judge, SIDNEY R. THOMAS and CONSUELO M. CALLAHAN, Circuit Judges.

CALLAHAN, Circuit Judge:

Defendants-Appellants California Governor Schwarzenegger and California Attorney General Brown (the "State") appeal the district court's grant of summary judgment in favor of Plaintiffs-Appellees Video Software Dealers Association and Entertainment Software Association ("Plaintiffs"), and the denial of the State's cross-motion for summary judgment.¹ Plaintiffs filed suit for declaratory relief seeking to invalidate newly-enacted California Civil Code sections 1746-1746.5 (the "Act"), which impose restrictions and a labeling requirement on the sale or rental of "violent video games" to minors, on the grounds that the Act violates rights guaranteed by the First and Fourteenth Amendments.²

We hold that the Act, as a presumptively invalid content-based restriction on speech, is subject to strict scrutiny and not the "variable obscenity" standard from Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State's expressed interests. Additionally, we hold that the Act's labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State's controversial opinion. Accordingly, we affirm the district court's grant of summary judgment to Plaintiffs and its denial of the State's cross-motion. Because we affirm the district court on these grounds, we do not reach two of Plaintiffs' challenges to the Act: first, that the language of the Act is unconstitutionally vague, and, second, that the Act violates Plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment.

I.

A.

On October 7, 2005, Governor Schwarzenegger signed into law Assembly Bill 1179 ("AB 1179"), codified at Civil Code §§ 1746-1746.5.³ The Act states that "[a] person may not sell or rent a video game that has been labeled as a violent video game to a minor." Cal. Civ.Code § 1746.1(a).⁴ Violators are subject to a civil penalty of up to $1,000. Id. at § 1746.3.

Central to this appeal, the Act defines a "violent video game" as follows:

(d)(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.

(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.

Id. at § 1746(d)(1).⁵ Borrowing language from federal death penalty jury instructions, the Act also defines the terms "cruel," "depraved," "heinous," and "serious physical abuse,"⁶ and states that "[p]ertinent factors in determining whether a killing depicted in a video game is especially heinous, cruel, or depraved include infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victim's body, and helplessness of the victim."⁷ Id. at § 1746(d)(2)-(3).

The Act also imposes a labeling requirement. It requires that each "violent video game" imported into or distributed in California must "be labeled with a solid white `18' outlined in black," which shall appear on the front face of the game's package and be "no less than 2 inches by 2 inches" in size. Id. at § 1746.2.

A.B. 1179 states that the State of California has two compelling interests that support the Act: (1) "preventing violent, aggressive, and antisocial behavior"; and (2) "preventing psychological or neurological harm to minors who play violent video games." A.B. 1179 also "finds and declares" that:

(a) Exposing minors to depictions of violence in video games, including sexual and heinous violence, makes those minors more likely to experience feelings of aggression, to experience a reduction of activity in the frontal lobes of the brain, and to exhibit violent antisocial or aggressive behavior.

(b) Even minors who do not commit acts of violence suffer psychological harm from prolonged exposure to violent video games.

The State included in the excerpts of record several hundred pages of material on which the Legislature purportedly relied in passing the Act. While many of the materials are social science studies on the asserted impact of violent video games on children, other documents are varied and include legal analyses, general background papers, position papers, etc. Dr. Craig Anderson, whose work is central to the State's arguments in this case, is listed as an author of roughly half of the works included in the bibliography.

B.

The content of the video games potentially affected by the Act is diverse. Some of the games to which the Act might apply are unquestionably violent by everyday standards, digitally depicting what most people would agree amounts to murder, torture, or mutilation. For example, the State submitted a videotape that contains several vignettes from the games Grand Theft Auto: Vice City, Postal 2, and Duke Nukem 3D, which demonstrate the myriad ways in which characters can kill or injure victims or adversaries.⁸ The record also contains descriptions of several games, some of which are based on popular novels or motion pictures, which are potentially covered by the Act. Many of these games have extensive plot lines that involve or parallel historical events, mirror common fictional plots, or place the player in a position to evaluate and make moral choices.

The video game industry has in place a voluntary rating system to provide consumers and retailers information about video game content. The Entertainment Software Rating Board ("ESRB"), an independent, self-regulated body established by the Entertainment Software Association, rates the content of video games that are voluntarily submitted. ESRB assigns each game one of six age-specific ratings, ranging from "Early Childhood" to "Adults Only."⁹ It also assigns to each game one of roughly thirty content descriptors, which include "Animated Blood," "Blood and Gore," "Cartoon Violence," "Crude Humor," "Fantasy Violence," "Intense Violence," "Language," "Suggestive Themes," and "Sexual Violence."

C.

On October 17, 2005, before the Act took effect, Plaintiffs filed suit against the Governor, the Attorney General, and three city and county defendants, all in their official capacities, for declaratory relief against the Act on the grounds that it violated 42 U.S.C. § 1983 and the First and Fourteenth Amendments. Plaintiffs argued that the Act unconstitutionally restricted freedom of expression on its face based on content regulation and the labeling requirement, was unconstitutionally vague, and violated equal protection.

The district court granted Plaintiffs' motion for a preliminary injunction. Video Software Dealers Ass'n v. Schwarzenegger, 401 F.Supp.2d 1034 (N.D.Cal.2005). Subsequently, the parties filed cross-motions for summary judgment. The district court granted Plaintiffs' motion and denied the State's cross-motion. See Video Software Dealers Ass'n v. Schwarzenegger, No. C-05-04188, 2007 WL 2261546 (N.D.Cal. Aug. 6, 2007). The district court's summary judgment order invalidated the Act under strict scrutiny, and did not reach Plaintiffs' claims regarding vagueness, equal protection, or the Act's labeling requirement. The district court permanently enjoined enforcement of the Act. The State timely appealed.

II.

We review a grant of summary judgment de novo and must "determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied substantive law." Ballen v. City of Redmond, 466 F.3d 736, 741 (9th Cir. 2006) (citation...