24 Comm. Law. 1 (2006-2007)

handle is hein.journals/comlaw24 and id is 1 raw text is: (
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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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