• by Karl Greenberg , September 20, 2010

The Association of National Advertisers (ANA) is joining a roster of groups urging the Supreme Court to support a lower court that judged unconstitutional legislation in California restricting violent images and speech.

The U.S. Supreme Court in Schwarzenegger v. Entertainment Merchants Association, No. 08-1448, is reviewing a decision by the 9th Circuit Court of Appeals, which said a California law aimed principally at video-game publishers violates the First Amendment. Arguments begin Nov. 2.

California says states should be able to regulate any material that its legislature deems likely to harm the ethical or moral development of minors, and that states should be able to deny minors direct access to material protected by the First Amendment as long as parents do not choose to provide such items to their minor children. Broadly, the ANA argues that the proposals are content-based, subjective in application and potentially vast in scope, and "antithetical to First Amendment values."

The ANA is joined in the amicus brief by a diverse group, including the American Booksellers Foundation for Free Expression, the Association of American Publishers, the Freedom to Read Foundation, the National Association of Recording Merchandisers, the Recording Industry Association of America, the Amusement & Music Operators Association, PEN Center USA and the Recording Academy.

The industry brief argues that among other things, legal precedent should direct the court to support the Ninth Circuit's decision. The group argues that since the court has not heretofore recognized exceptions to the protections of the First Amendment for violent content, it should not do so now.

"Contrary to the contention of the State of California, this court has consistently and properly declined to make exceptions to the protections of the First Amendment for visual depictions or textual descriptions of violence," says the brief. "Such descriptions and depictions, both fictional and real, have always been a part of our civilization's art, history and literature, both for children and for adults."

The brief says a long aesthetic history of violence supports the point. The 53-page novella-like brief's examples range from Homer ("Menelaus hacked Pisander between the eyes, the bridge of the nose, and bone cracked, blood sprayed and both eyes dropped at his feet to mix in the dust") to the Brothers Grimm fairy tales and Tom and Jerry cartoons ("Tom and Jerry spend short after short physically attacking each other.")

Dan Jaffe, ANA executive vice president, said in a statement that while he agrees children should be protected from inappropriate material, "The California law is far too sweeping and clearly violates the First Amendment. We joined in this brief to respond to the growing effort of policymakers across the country to 'childproof' ever widening categories of speech in our society."

Jaffe argues that the high court has, in the past, asserted that regulations restricting speech that is lawful for adults can't be unbridled simply because they are intended to protect children. "Also, treating older teenagers up to the age of 18 as if they were very young children is constitutionally suspect," he said.

Jaffe doesn't miss the obvious chance to reflect on the Terminator's own career: "It is ironic that this case is being pursued by California Gov. [Arnold] Schwarzenegger, whose career was propelled by a series of movies that contained substantial violent content and which spawned video games based on them."

"The Terminator is determined," says Jaffe, who adds that the regulations follow a trend toward raising the age of childhood and restricting a broader range of advertising and products because of their potential to be marketed to children. "It's the whole idea of putting kids in some sort of chrysalis, or hermetically sealed container until they are 'fully mature' at some magic date."

On Monday, the ANA, the American Association of Advertising Agencies (4As) and the American Advertising Federation (AAF), filed a brief calling on the U.S. Supreme Court to review another case involving restrictions on alcohol beverage advertising in university publications.

In that case, the U.S. Court of Appeals for the Fourth Circuit said a new Virginia law that bans the advertisement of alcohol beverage products in publications directed to a primarily student audience was constitutional. The court based its holding on the fact that a portion of the readership is under legal drinking age and the state has an interest in preventing underage drinking.

"What's happening in the food area is that they are saying a range of foods can't be advertised because the audience is under 18. The violence issue is only a piece of it. It's not only trying to raise the age at which one can be treated as a child, but the number of categories."

Jaffe predicts that if the Court takes the case, odds are they will rule in favor. "I think the odds are they will continue to uphold these kinds of First Amendment protections as they have in the past. But there are two new members who have not spoken out in these issues and whenever you go to the Supreme Court it's a situation where you have to cross your fingers."