Violent video games & minors – analogy to obscenity/child pornography?

1. Violent video games & minors – analogy to obscenity/child pornography? • Cal. Civ. Code § 1746.1(a): A person may not sell or rent a video game that has been labeled as a violent video game to a minor. • Exceptions – (1) reasonable reliance on proof of adulthood or mfrs’ failure to label & (2) minor received from parent, legal guardian or related adult • Many, Many definitions. Most important is in§ 1746(d)(1): • "Violent video game" means a video game [where the 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 . . . [either] (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; [or] (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. • Terms – Cruel, Depraved, Heinous, Serious Physical Abuse, & Torture also defined

2. Government regulation of sexually explicit non-obscene speech • Outside of the context of obscenity – where SCT has announced the Miller & Ginsberg standards for judging whether distribution of obscenity can be punished – and actual child pornography – where SCT has said both distribution and possession can be criminally punished: • What interest does the gov’t have in regulating sexually explicit expression? • We have already seen one case involving this issue – Renton v. Playtime Theatres(p. 113) – SCT upheld zoning regulations pertaining to adult theaters • Controversy re decision – claimed law was content-neutral TPM regulation due to it’s reliance on “secondary effects” rationale • Attempts to regulate sexually explicit speech come up in a variety of contexts

3. Non-Obscene Sexually Explicit Speech – Nude Dancing • Why are cases like Barnes & Paps A.M. even decided on First Amendment grounds – is nude dancing expressive conduct deserving of First Amendment protection? • Note Dallas v. Stanglin– gathering together for purposes of recreational dancing is NOT protected by the 1st Amendment – does NUDE dancing convey expressive meaning?

4. Nude Dancing – Barnes v. Glen Theatre • SCT upheld law prohibiting intentional public nudity (defining nudity as showing of genitals (including breasts), pubic areas or buttocks with less than a fully opaque covering) • Plurality applied 4 part O’Brien test: (w/in power of gov’t, important gov’t interest, unrelated to suppression of free expression, no greater than necessary to meet gov’t interest • Does the state have an interest in protecting morality by prohibiting public nudity? In all public places? • Would the law ban nudity in theatrical productions of “Hair”? • If so, is it legitimate? Is it related to suppression of free expression? • If not, what problems does the law raise? • Does the effect that nude dancers use certain covering devices unduly interfere with the “erotic message” under Prong 4 of O’Brien?

5. Nude Dancing – Erie v. Paps A.M. • SCT applied O’Brien & upheld law banning public nudity as applied to business engaging in nude dancing but on different reasoning than Barnes. • SCT – State’s interest in regulating public nudity is unrelated to suppression of free expression • Because the state interest is battling the harmful secondary effects of nude dancing – crime, prostitution, etc. • Can this reasoning be right? • How does a total ban on nudity aim at secondary effects of nude dancing? Does the use of pasties and G-strings really combat the secondary effects of nude dancing? • Is SCT’s use of secondary effects doctrine different from Young (cited in Paps) and Renton?