No. 02-3010

______________

 

          In The

      UNITED STATE COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

____________

 

INTERACTIVE DIGITAL SOFTWARE ASSOCIATION, et al.,

Appellants

 

                 v.

 

St. Louis County, et al.,

Appellees

____________

 

On Appeal from the United States District Court

for the Eastern District of Missouri

 

Case No. 4:00CV2030 SNL

    Honorable Stephen Limbaugh

____________

 

        BRIEF AMICUS CURIAE OF THE LION & LAMB PROJECT

                IN SUPPORT OF THE APPELLEE AND SUPPORTING AFFIRMANCE

____________

 

Professor Kevin W. Saunders

Michigan State University-

Detroit College of Law

Law Building

East Lansing, MI 48824-1300

(517) 432-6911

 

Attorney for Amicus Curiae

 

October 22, 2002

TABLE OF CONTENTS

 

 

TABLE OF AUTHORITIES . . . . . . . . iii

 

INTEREST OF THE AMICUS CURIAE . . . . . . 1

 

ARGUMENT . . . . . . . . . . 1

 

1.               CASE LAW SHOULD NOT BE TAKEN TO

PRECLUDE HOLDING THAT DEPICTIONS

OF VIOLENCE MAY BE OBSCENE . . . . 2

 

2.               SUFFICIENTLY OFFENSIVE AND EXPLICIT

DEPICTIONS OF VIOLENCE FIT WITHIN

THE OBSCENITY EXCEPTION TO THE

FIRST AMENDMENT . . . . . . . 6

 

A.           The Ordinary Language Concept of Obscenity

Encompasses Violence as Well as Sex . . . 6

 

2.               The Case Law in All Constitutionally Relevant

Eras Speaks as Well to Violence as to Sex . . . 9

 

3.               First Amendment Policy Analysis That Justifies

an Obscenity Exception for Sex Equally

Justifies an Exception for Violence . . . . 11

 

4.               Offense as an Element of Obscenity Does Not

Distinguish Violence from Sex . . . . . 14

 

3.               THE OBSCENITY AS TO CHILDREN DOCTRINE

JUSTIFIES THE ST. LOUIS ORDINANCE . . . 17

 

1.               "Harmful to Minors" Statutes Focusing on

Violence Fit Within the Framework Provided

By Ginsberg v. New York . . . . . 17

2.               The Ordinance is Not Unconstitutionally Vague . . 19

 

3.               The Ordinance is Distinguishable for the

the Ordinance in American Amusement

Machines Ass'n v. Kendrick Based on the

Age Limits Imposed . . . . . . 20

 

4.               Concerns over the Psychological and Physical

Well Being of Youth Comport With the

Application of Ginsberg v. New York . . . . 22

 

CONCLUSION . . . . . . . . . . 24

 

CERTIFICATE OF COMPLIANCE . . . . . . . 25

 

CERTIFICATE OF SERVICE . . . . . . . . 25

TABLE OF AUTHORITIES

 

Cases: Page

 

American Amusement Machines Ass'n v. Kendrick,

115 F. Supp. 943 (S.D. Ind. 2000), rev'd, 244 F.3d 572

(7^th Cir.), cert. denied, 122 S.Ct. 468 (2001) . . . 5, 24

 

American Amusement Machines Ass'n v. Kendrick,

244 F.3d 572 (7^th Cir.), cert. denied,

122 S.Ct. 468 (2001) . . . . 7-8, 14-15, 20-22

 

Cohen v. California, 403 U.S. 15 (1971) . . . . . 4

 

Eclipse Enterprises, Inc. v. Gulotta,

134 F.3d 63 (2d Cir. 1997) . . . . . . 3

 

Erznoznik v. Jacksonville, 422 U.S. 205 (1975) . . . . 3, 4

 

Ginsberg v. New York, 390 U.S. 629 (1968) . . . 2, 17-19, 21-24

 

Hamling v. United States, 418 U.S. 87 (1974) . . . . 20

 

Interactive Digital Software Ass'n v. St. Louis,

200 F. Supp.2d 1126 (E.D. Mo. 2002) . . . 2, 18-19, 22

 

James v. Meow Media, Inc., 300 F.3d 683 (6^th Cir. 2002) . . 5, 14

 

Kingsley Books v. Brown, 354 U.S. 347 (1957) . . . . 4

 

Miller v. California, 413 U.S. 15 (1973) . . 3, 4, 12, 14-15, 18-19

 

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) . 21-22

 

Roth v. United States, 354 U.S. 476 (1957) . . . . 3-4, 9-12

 

Swearingen v. United States, 161 U.S. 446 (1896) . . . . 10

Video Software Dealers Ass'n v. Webster,

968 F.2d 684 (8^th Cir. 1992) . . . . 1, 2, 3, 19, 21

 

Winters v. New York, 333 U.S. 507 . . . . . 3, 4, 10

 

Miscellaneous:

 

Richard C. Beacham, The Roman Theatre

and its Audience (1991) . . . . . . 7

 

Vincent Blasi, The Checking Value in First Amendmet

Theory, 1977 Amer. Bar Found. Res. J. 521 . . . 12

 

Harry M. Clor, Obscenity and Public Morality (1969) . 6, 7

 

Joel Feinberg, The Moral Limits of the

Criminal Law (1985) . . . . . . . 7

 

Roy Flickinger, The Greek Theater and its

Drama (4^th ed. 1936) . . . . . . . 7

 

Eberhard & Phyllis Kronhausen, Pornography

and the Law (1964) . . . . . . . 7

 

Richard H. Kuh, Foolish Figleaves? Pornography

in-and out-of Court (1967) . . . . . . 4

 

Daniel Linz, Edward Donnerstein, Bradley J. Schafer,

Kenneth C. Land, Patricia McCall & Arthur C. Graesser, Discrepancies Between the Legal Code and Community

Standards for Sex and Violence: An Empirical Challenge

to Traditional Assumptions in Obscenity Law,

29 Law & Soc'y Rev. 127 (1995) . . . . . 16

 

Alexander Meiklejohn, Free Speech and Its

Relationship to Self-Government (1948) . . . 12

 

St. Louis Revised Ordinances . . . . 15, 18-19

 

Kevin W. Saunders, Violence as Obscenity:

Limiting the Media's First Amendment

Protection (1996) . . . . . . 4, 6, 9-11

 

Frederick F. Schauer, Free Speech: A Philosophical

Enquiry (1982) . . . . . . . 12-13

 

Frederick F. Schauer, The Law of Obscenity (1976) . . . 10

 

Maria Tatar, Off With Their heads: Fairy Tales

and the Culture of Childhood (1992) . . . . 8

 

Maria Tatar, The Hard Facts of the Grimms'

Fairy Tales (1987) . . . . . . . 8, 9

 

INTEREST OF THE AMICUS CURIAE

 

The Lion & Lamb Project is a national organization whose mission is to stop the marketing of violent entertainment to children.  Lion & Lamb works with parents and other adults to reduce children's exposure to violent video games, movies, music, television programs, and toys.  The organization achieves these goals by conducting parenting workshops and training workshop leaders nationwide; disseminating printed materials to parents; hosting an extensive website with research information and other resources; and conducting an annual press conference highlighting the year's Dirty Dozen violent toys and video games, as well as the Top 20 toys.  Lion & Lamb has also testified at congressional hearings that focus on the marketing of violent products to children.  Lion & Lamb, while a strong supporter of the First Amendment, believes sales of violent entertainment to children should be restricted just as sales of cigarettes, alcohol and pornography are restricted to this vulnerable group.

This brief is filed with the consent of all parties.

 

  ARGUMENT

The Court should reconsider its conclusion in Video Software Dealers Association v. Webster, 968 F.2d 684 (8th Cir. 1992), that violence and obscenity are distinct categories.  That decision was made without the benefit of more recent arguments that violent depictions can be obscene without regard to any sexual content.  The opinion also did not analyze the issue in great depth.  An analysis of the use of the concept in ordinary language, the case law in all constitutionally relevant periods, and the policies that serve to justify the obscenity exception to the First Amendment all speak just as well to depictions of violence as to material of a sexual nature.  If violent depictions are recognized as potentially obscene, then under the theory of Ginsberg v. New York, 390 U.S. 629 (1968), less graphic and offensive depictions can be considered obscene when the images are made available to children.  The St. Louis ordinance, drafted in a manner similar to the statute found constitutional in Ginsberg, although focused on violence, should be held constitutional.

 

I.  CASE LAW SHOULD NOT BE TAKEN TO PRECLUDE HOLDING THAT DEPICTIONS OF VIOLENCE MAY BE OBSCENE

The Video Software case involved a Missouri statute barring the rental or sale of violent video tapes to those under seventeen.  The statute there contained a number of flaws not present in the ordinance under consideration, but part of that opinion was taken by Judge Limbaugh in the District Court opinion here as precluding the argument that violent video games may be obscene as to minors.  See Interactive Digital software Ass'n v. St. Louis Co., 200 F. Supp.2d 1126, 1135-36 (E.D. Mo. 2002).  The Video Software opinion's entire analysis of the issue of violence as obscene amounts to three sentences, asserting that obscenity encompasses only depictions of sexual content, that material with violence but no sex cannot be obscene, and concluding that violent videos are not obscene.  See Video Software, 968 F.2d at 688.  A more recent decision in the Second Circuit reaches the same conclusion with the same lack of analysis.  Eclipse Enterprises, Inc. v. Gulotta, 134 F.3d 63, 67 (2d Cir. 1997), simply states that the standards applied to obscenity differ from those applied to violence, while a concurring opinion at least found some merit in being guided by the approach to obscenity, even if violence and obscenity were different categories, see id. at 69-70 (Griesa, J., concurring).

The Video Software decision indicates a belief that Supreme Court precedent leaves an unbridgeable chasm between nonsexual violence and the obscene.  The opinion cites to Roth v. United States, 354 U.S. 476 (1957), and Miller v. California, 413 U.S. 15 (1973), the Supreme Court cases recognizing the obscenity exception and providing the standard by which obscenity statutes are to be judged, and Erznoznik v. Jacksonville, 422 U.S. 205 (1975), asserting that to be obscene material must be erotic.  These cases, however, may be read so as not to deny the possibility of the violent being obscene.

First, it must be noted that the Supreme Court has not declared that violence cannot be obscene, and it did have the opportunity to do so.  In Winters v. New York, 333 U.S. 507 (1948), the Court considered the application of a New York statute addressing "Obscene prints and articles" but including "papers devoted to the publication, and principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime."  See Winters, 333 U.S. at 508.  The Court did declare the statute unconstitutional but did so on vagueness grounds and warned against reading the case more generally as barring state regulation through a more precise statute.  The second case to come before the Court in which an obscenity statute was applied to violent material was Kingsley Books v. Brown, 354 U.S. 347 (1957).  There, the defendant had conceded that the publications at issue, the Nights of Horror series of paperbacks, were obscene, despite the fact that the primary objections to them were with regard to their violent nature and a series of copycat violent crimes, see Richard H. Kuh, Foolish Figleaves? Pornography in-and out of-Court 44 (1967); see also Kevin W. Saunders, Violence as Obscenity 129-30 (1996)(discussing the lower court opinions and the nature of the material at issue).  Kingsley Books is remembered only for its conclusion that injunctions may issue against the distribution of materials found to be obscene.

The Roth, Miller and Erznoznik decisions, as well as Cohen v. California, 403 U.S. 15 (1971), do all discuss obscenity and do all focus on depictions of a sexual nature.  Roth and Miller define obscenity and do so in terms of sexual content.  Erznoznik concludes that nonerotic nudity is not obscene, and Cohen concludes that words that may also have a sexual connotation are, when used in a nonerotic way, not obscene.  These decisions have been read to conclude that only erotic, and thus sexual, material may be obscene.  However, the Court in all these decisions was called on to define obscenity in the context of singling out from sexual or potentially sexual material that which does not enjoy first amendment protection.  They do not directly address the issue of whether or not similar lines may be drawn in distinguishing what might be characterized as obscene and nonobscene violence.

Several more recent decisions do contain analysis of the claim that violence may be obscene.  In a case involving an Indianapolis ordinance, similar in most respects but not with regard to the age involved to that at issue here, the federal district court concluded that depictions of violence could be obscene when presented to children, while the appellate court rejected the position.  See American Amusement Machines Ass'n v. Kendrick, 115 F. Supp.2d 943 (S.D. Ind. 2000), rev'd, 244 F.3d 572 (7th Cir.), cert. denied, 122 S.Ct. 462 (2001).  There are also several tort cases that deny the liability of media defendants in cases alleging injury to individuals by actors influenced by violent films and video games.  See, e.g. James v. Meow Media, Inc., 300 F.3d 683 (6th Cir. 2002).  These cases are distinguishable because of the chilling effect of imposing liability without any prior definition of the materials that could be the basis for such liability.  Here, the ordinance provides more guidance, guidance that parallels that offered under constitutional obscenity statutes.

 

                II. SUFFICIENTLY OFFENSIVE AND EXPLICIT DEPICTIONS OF VIOLENCE FIT WITHIN THE OBSCENITY EXCEPTION TO THE FIRST AMENDMENT

 

A. The Ordinary Language Concept of Obscenity Encompasses Violence as Well as Sex

The ordinary language concept of obscenity is the least important argument of the three presented regarding the scope of the obscenity exception.  It is nonetheless of some relevance and will be treated briefly.  An examination in more depth may be found in Kevin W. Saunders, supra, at 63-85.  The work of Professor Harry Clor argues that we, as a society, withhold from public view, i.e. consider obscene, acts or depictions of acts in which any human context is lost in a focus on the physical.  He concludes that "there can be . . . obscene views of death [as well as certain other acts].  Obscenity makes a public exhibition of these phenomena and does so in a way that their larger human context is lost or depreciated."  Harry M. Clor, Obscenity and Public Morality 225 (1969).  This is an approach that speaks to the slasher film or video game as well as it does to obscene depictions of sex.  Clor specifically includes violence as obscene, defining an obscene depiction as "one which tends predominantly to . . . [v]isually portray in detail . . . violent physical destruction, torture or dismemberment provided this is done to exploit morbid and shameful interest in these matters and not for genuine scientific, educational, or artistic purposes."  Id. at 245.  Joel Feinberg in his multi-volume work on the criminal law reaches a similar conclusion specifically including scenes such as the film machine gunning of the named characters in Bonnie and Clyde as obscene.  See Joel Feinberg, Offense to Others, 2 The Moral Limits of the Criminal Law 115 (1985).

The history of what has been banned from the stage, that which is ab scaena, also includes violence in many eras.  The Greeks were tolerant of sexual content but did not allow the depiction of homicide on stage, although a narrator could describe what had happened.  See, e.g., Roy Flickinger, The Greek Theater and Its Drama 127-28 (4th ed.  1936).  While theater became more violent in other eras, for example in late Rome and in Medieval drama, copulation also became acceptable entertainment.  See  Richard C. Beacham, The Roman Theatre and Its Audience 137 (1991); Eberhard & Phyllis Kronhausen, Pornography and the Law 66-67 (1964).  From the point of view of what has been ab scaena, sex cannot claim from violence an exclusive right to the ascription "obscene."

This discussion is most relevant to Judge Posner's look at literature in the Indianapolis case.  He wrote: "Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low.  It engages the interest of children from an early age, as everyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault is aware."  Kendrick, 244 F.3d at 577.  But, all but the last clause of the quotation would ring just true with "sex" substituted for "violence," and that observation would not justify striking down limitations on the exposure of children to sexual images.  With regard to that last clause, hearing or reading of Hansel and Gretel's encounter with a witch in a fantasy world in which houses are made of bread is a far cry from the modern slasher film or using a virtual pistol to kill characters in a video game.  Hansel and Gretel is as far from the modern slasher film or violent video game as Prince Charming kissing Sleeping Beauty is from x-rated films.

The fairy tales learned in youth are not of the victimization/retaliation genre more recently popular but of the transgression/punishment genre.  They are cautionary tales that "end with the triumph of adult wisdom over childish disobedience, curiosity, or naughtiness."  See Maria Tatar, The Hard Facts of the Grimms' Fairy Tales 191 (1987).  They are, then, morality plays for children, not simply early slasher stories or first person shooter video games.

Furthermore, the Grimms Brothers' versions are toned down from the folk stories they collected.  See Maria Tatar, Off With Their Heads: Fairy Tales and the Culture of Childhood 7-8 (1992)(describing the toning down of Little Red Riding Hood).  The Disney versions remembered from childhood are further toned down.   See Maria Tatar, The Hard Facts of the Grimms' Fairy Tales at 239 n.28 (noting that Disney lessened the emphasis on the evil queen by concentrating on the dwarves, who had not even been named in the Grimms' version).  Given the impact of film on the sort of visceral response that seems the hallmark of obscenity, the existence of violence in the oral tradition of fairy tales, especially coupled with criticism of even that genre's suitability for children, see, e.g., id. at 185 (noting that Grimms' fairy tales have come under "heavy fire" from educators), may not provide the justification Judge Posner sees for the far more realistic and visually explicit violence of many films and video games.

 

B. The Case Law in All Constitutionally Relevant Eras

Speaks as Well to Violence as to Sex

When the Supreme Court, in Roth, recognized the obscenity exception, it did so, at least in part based on a series of cases and statutes from the colonial era and the era of the Bill of Rights, as establishing the founding era pedigree of the obscenity exception, and cases as then recent as 1953, as demonstrating its continuing vitality.  See Roth, 354 U.S. at 482, 482 n.12, 481.  However, an examination of the cases and statutes, see Kevin W. Saunders, supra, at 87-110, shows a lack of focus on sexual material in both the era of the Bill of Rights and at the time of the Fourteenth Amendment, which became the basis for imposition of first amendment freedoms against the states.  Professor Schauer finds a lack of focus for the obscenity exception on sexual material in United States law, until the 1896 case Swearingen v. United States, 161 U.S. 446 (1896).  See Frederick F. Schauer, The Law of Obscenity 19 (1976).

One of the later cases cited in the Roth opinion was Winters, the opinion that had  declared New York's limits on depictions of violence unconstitutionally vague.  See Roth, 354 U.S. at 481.  This would seem to reinforce the position that, even in the post-Swearingen era, the Court still considered a statute aimed at violence an obscenity statute, even if a vague one.

Even accepting Swearingen as the time at which obscenity focused on sex, it is interesting to note the reactions of the states to that development.  In the era leading up to Swearingen and after that decision, the states passed statutes specifically addressing violence, including the statute struck down in Winters.  By the time of Winters, half the states had such statutes, a fact noted by Justice Frankfurter, joined by Justices Jackson and Burton, in his Winters dissent, see Winters, 333 U.S. at 520-23 (Frankfurter, J., dissenting)(listing the statutes he found to be similar).  The statutes are discussed in Kevin W. Saunders, supra, at 113-19.  Some of the statutes continued to label depictions of violence "obscene," while others indicate a desire to continue regulation, even if a different label must be used.  See id.

The focus of obscenity, in terms of statute and case law, on sex alone was in the Victorian Era and seems to be just another manifestation of the era's strong concerns over sex.  That post-Fourteenth Amendment era is, with regard to an examination of constitutionally, lacking the importance of the eras of the Bill of Rights or the Fourteenth Amendment.  If a legal history barring the obscene is to serve to justify the present obscenity exception, as the Roth Court took it to, it should  include the earlier, broader view of what was obscene, rather than the more exclusive view of the Victorians.  That is especially true, given the continued efforts of the states to regulate such material, establishing the continuing vitality of the interest.

 

C. First Amendment Policy Analysis That Justifies an Obscenity   Exception for Sex Equally Justifies an Exception for Violence

 

Commentators have presented policy reasons for denying First Amendment protection to obscene materials.  Their analysis has been limited to considering depictions of sexual activity, but the policy bases apply equally well to  violent material sufficiently explicit, offensive and lacking serious value as to be arguably obscene.  The two justifications that lie at opposite extremes in terms of the scope of first amendment protectiveness, while still justifying the obscenity exception, are examined here, but an examination of other justifications between these extremes yields similar results.  See Kevin W. Saunders, supra, at 135-60.