Marketers are cheering a U.S. Supreme Court decision Monday striking down a California law banning the sale of violent video games to children. But some observers say that the pro-free speech ruling could have a counter-intuitive result: It could give broadband providers a boost in their fight against Net neutrality.
The Supreme Court ruled 7-2 that California's law restricting the sale or rental of violent video games to minors violates the First Amendment. "No doubt a State possesses legitimate power to protect children from harm," Justice Antonin Scalia wrote for the majority. "But that does not include a free-floating power to restrict the ideas to which children may be exposed."
Scalia added that because California's law restricts content, it's invalid unless it "passes strict scrutiny -- that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest."
He went on to rule that the California law did not meet that standard for several reasons, including that it was "seriously underinclusive" because it only applied to video games and not other types of entertainment.
The Association of National Advertisers had joined other groups, including the Association of American Publishers and Recording Industry Association of America, in a friend-of-the-court brief opposing California's law. Dan Jaffe, executive vice president of government relations for the ANA, says the organization saw the case as important because it dealt with "whether video game advertising was going to be treated differently than other types of advertising."
"The broader issue for us, and the advertising community, was were they going to start putting in further restrictions to advertising to those under 18," Jaffe says. He adds that the ruling could affect the validity of proposed online privacy laws that only apply to minors, though that would depend very much on the final wording of those laws.
At the same time, the ruling could give broadband providers significant ammunition in their fight against Net neutrality laws. That's according to Cardozo Law School professor Susan Crawford, a prominent neutrality proponent. "Today's opinion may further strengthen the carriers' arguments that any nondiscrimination requirement imposed on them should be struck down," she writes.
The key issue, says Crawford, centers on whether the FCC's neutrality rules are interpreted as "content-based." If so, then broadband providers can argue that the rules are invalid unless they meet the "strict scrutiny" standard -- they are as narrow as possible and further a compelling interest. Crawford adds that content-based rules are "always" struck down by the Supreme Court.
The FCC's rules, which were passed 3-2 last December, ban broadband providers from blocking or degrading Web sites or applications. But Crawford says the carriers will be able to argue those rules are impermissible because they require providers to transmit certain content.
"Even though today's opinion is about regulations prohibiting speech rather than regulations requiring speech, it's likely that the carriers will be able to frame the debate their way: We'd like to speak, to use all of our pipes the way we want to, without restriction. By forcing us to fairly carry speech with which we don't want to be associated, you're restricting our free use of our private communications medium," she writes.
Verizon and MetroPCS already filed suit over the rules, but the case was dismissed as premature because the final regulations have not yet been published in the Federal Register. The FCC is expected to take the next step toward finalizing the rules this week by submitting them to the Office of Management and Budget.