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First Amendment Attorney Takes Aim at Schwarzenegger

California Governor Arnold Schwarzenegger is trying to terminate the First Amendment, or at least undermine it for video games and potentially a lot more protected speech.

That is the word from Davis Wright Tremaine Partner Robert Corn-Revere, a veteran First Amendment attorney who has represented broadcast and cable industry clients in key content-related cases.

In an opinion piece for the Speaking Freely series of publications co-sponsored by The Media Institute and The Thomas Jefferson Center for the Protection of Free Expression, Corn-Revere takes aim at the governor for his decision to ask the Supreme Court to save a law that restricted access by minors to violent video games.
A Ninth Circuit decision had held that the California law violated freedom of expression.

Invoking Schwarzenegger's starring role in The Terminator movie series, Corn-Revere warns that "In 2009, the killer cyborg turned governor has materialized in the present from the past in a plot to undermine the First Amendment."

Corn-Revere points out that the Ninth Circuit decision is just one of five cases all to have reached the same conclusion about the law, and that the governor now wants the High Court to step in to rewrite basic free speech principles in order to "lower the bar" on protected speech to make it subject to the whims of the legislature.

The Ninth Circuit, says Corn-Revere, found the law unconstitutional because it was not narrowly tailored, because treating violence as obscenity is not permissible by the Constitution and because the state had not demonstrated that violent video games cause psychological or neurological damage.

Bottom line, says Corn-Revere: "In seeking review, California is asking the Supreme Court to reverse 60 years of First Amendment jurisprudence and to hold that 'excessively violent' material-whatever that may be-'deserves no constitutional protection.' It is also asking the Court to relieve government from actually having to demonstrate the purported harmfulness of speech it seeks to regulate, but instead to defer to "reasonable inferences" and legislative judgments."

And like the proverbial camel's nose--or in this case Terminator's cyborg arm--under the tent, Corn-Revere argues that a California victory could be an unsettling precedent for other speech: "If California is successful, it will open the door to regulate not just video games, but a wide range of speech that is currently protected under the First Amendment."

Concerns about government crackdowns on video violence extend beyond the courts. The Chairman of the Senate Commerce Committee, Jay Rockefeller of West Virginia, has been a strong critic of TV violence and has even introduced legislation in the past to give the FCC the power to regulate it as it does indecency.

Corn-Revere is well-versed in that side of the equation as well. He scored a major First Amendment victory for cable in the Playboy case, in which he successfully argued that the availability of channel-blocking technologies rendered a ban on adult programming unconstitutional. The court ruled that a blanket ban on the channel's programming was an unconstitutional means of guarding against audio and video bleed-throughs of scrambled adult programming.

The FCC has also been charged by Congress with coming up with a report next month on content control strategies across a range of media. It's new chairman, Julius Genachowski, is a founding board member of Common Sense Media, which backs both parental control and a government role in media content, though it favors technology-driven consumer control over government regulation when the former is sufficient to protect kids from undesirable content.