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24 Comm. Law. 1 (2006-2007)

handle is hein.journals/comlaw24 and id is 1 raw text is: ( \ THJURALOF MEIA INORATIN AD CMUIAIN LAW In this issue COVER STORY (et seq.) Video Games & American Youth Legislation that restricts access by minors to violent video games presents several interesting twists, including restriction of violent, as opposed to sexual, speech and the limits imposed by the Brandenburg doctrine. The ACLU & Skokie, Illinois ........ 2 The forum chair believes that the ACLU was wrong to defend the rights of Nazis to march in Skokie and explains why. It All Started with Janet Jackson.. 3 The FCC's most recent decisions, released on the Ides of March, have decisively demonstrated that the Commission's indecency standards, at least as applied, clearly contravene core First Amendment principles. How Much Is Too Much? ...... 9 The de minimus doctrine arises when there has been exact copying by the defendant but the similarity between the plaintiff and the defendant's works is not substantial. But what one court may regard as trivial is treated as substantial by another. International Law & the First Amendment ............ 16 Can a foreign journalist be held liable for speech in a foreign land that encourages violence against an ethnic group? The authors discuss two class action suits filed by Falun Gong followers against Chinese media defendants in U.S, courts. Libel Defendant's Dilemma ...... 21 The author describes several techniques that new and seasoned practitioners alike can use in jury trials. Hate Speech Laws ................. 35 Denmark's laws hate speech and blasphemy laws, suggests the author, impose a burden on its government that recent experience has demonstrated is unwise, unnecessary, and dangerous. Courtside ................................. 37 CL's correspondents report on the Supreme Court's recent First Amendment actions. Attack on Violent Video Games PAUL M. SMITH, KATHERINE A. FALLOW, DUANE C. POZZA, AND MATTHEW S. HELLMAN Just as legislators condemned comic books in the 1950s based on a concern that horror and crime comics con- tributed to juvenile delinquency in gen- eral and caused specific crimes in par- ticular, video games have been attacked in recent years for their purported nega- tive effects on children's thoughts and behaviors. But unlike comic books, which largely avoided direct govern- ment regulation, violent video games have been the target of laws passed in six jurisdictions over the past several years. To date, none of these laws has survived constitutional scrutiny. Courts have repeatedly struck down, on First Amendment grounds, laws restricting minors' access to violent video games. Despite this unbroken series of deci- sions striking such laws down, legisla- tive interest in finding a way, any way, to restrict minors' access to such video games continues unabated. Just recent- ly, Senator Hillary Rodham Clinton proposed federal legislation that would restrict the sale or rental of video games to minors based on the games' ratings. And Michigan, Louisiana, and Oklahoma just enacted similar laws, all of which have been challenged in federal court. In the courtroom, these laws pit leg- islators concerned about the level of violence in video games against the manufacturers, distributors, and retail- ers of such games. Legislators have decried the prevalence of popular games such as Grand Theft Auto and offer up research studies purporting to show that violent video games cause aggressive thoughts and behavior by minors (though none of these has been accepted by courts as adequate to satis- fy strict scrutiny). To the plaintiffs who challenge such statutes, arguing that video games are an expressive medium and laws that regulate games based on their content are presumptively invalid under the First Amendment, they are an issue of free speech. More broadly, this legal battle implicates whether adults and minors may access and play certain video games without the threat of crim- inal penalties imposed by the state and whether the control of minors' access to these games will be left in the hands of parents and the private sector (the video game industry already has adopted a voluntary private rating system similar to that used by the movie industry). The developing case law in this area presents a number of interesting First Amendment issues, including the abili- ty of the government to restrict violent, as opposed to sexual, speech; the limits imposed by the Brandenburg doctrine on the government's authority to restrict speech in the name of prevent- ing aggression; the legitimacy of a state interest in regulating minors' thoughts and personalities; the vagueness con- cerns raised by efforts to define prohib- (Continued on page 25) Paul Smith and Katherine Fallow are partners and Matthew Hellman and Duane C. Pozza are associates in the Washington, D.C., office of Jenner & Block LLP. The authors represent video game makers and retailers in their First Amendment challenges to recent laws in several states. f0 Communications . ~ ~Publication of the Foruml ay e on Communications Law American Bar Association Volume 24, Number 1, Spring 2006

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