Supreme Court Update: Brown v. Entertainment Merchants Association (08-1448), Chamber of Commerce of the United States of America v. Whiting (09-115) and Flores-Villar v. United States (09-5801)

July 6, 2011 Supreme Court Update

Greetings, Court fans!

While we won't be getting any new decisions, we're still working our way through the old ones. This Update will cover: Brown v. Entertainment Merchants Association (08-1448), finding a California law limiting the sale of violent video games to minors unconstitutional (leading parents everywhere to groan); Chamber of Commerce of the United States of America v. Whiting (09-115), on state laws seeking to punish those who employ unauthorized aliens; and Flores-Villar v. United States (09-5801), an immigration/discrimination case.

Brown v. Entertainment Merchants Association (08-1448) caused one of the most interesting splits of the year. Justice Scalia wrote for the majority, joined by Kennedy and all of the female Justices (Ginsburg, Sotomayor and Kagan); Justice Alito, joined by the Chief, concurred in the judgment; and Breyer and Thomas issued two dissents, going along very different paths.

Though the decision yielded four opinions, the five Justice majority opinion was sweeping. California's law prohibiting minors from buying violent video games without a parent's (or another close relative's) consent and requiring games to be labeled "18" violates the First Amendment. The law at issue defined "violent video games" as those "in which a range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted" in a manner that "a reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors," that is "patently offensive to prevailing standards in the community as to what is suitable for minors," and that "causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors." (You have to give it to the California legislators. They read the cases and tried really, really hard to craft a constitutional law.) The Court's decision boils down to this: First, there are few exceptions to the First Amendment's protection of free speech. Obsenity (i.e., sex) is one; violence is not. There is no tradition of restricting access to violent speech (see, e.g., Hansel and Gretel, Lord of the Flies, The Odyssey). Minors have First Amendment speech rights, although in categories already recognized as unprotected (e.g., obsenity – yes, sex again), the boundaries of the category can be modified to make the category appropriate to minors (i.e., somewhat less sexy sex). Or, as the Court more nicely put it: "No doubt a State possesses legitimate power to protect children from harm, but that does not include a free floating power to restrict the ideas to which children may be exposed." Here, California wasn't altering the boundaries of an existing exception category, but attempting to create a new category of unprotected speech altogether. This, the Court would not allow. While these video games may depict extreme violence that upsets us, "disgust is not a valid basis for restricting expression."

Having found the speech protected by the First Amendment, the Court next turned to whether the California law could pass strict scrutiny – that is, whether it was justified by a compelling interest and was narrowly drawn to serve that interest. The majority was not compelled. First, the studies adduced below were contradictory and fell well short of demonstrating that playing violent video games leads to violent behavior. Second, California could not establish a compelling interest in aiding parental authority. The Court "doubt[ed] that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority." And the video game industry already had adopted a voluntary rating system and encourages game sellers not to sell games rated "M" (mature) to children under 17 or games rated "AO" (adults only) to children under 18, undercutting the need for regulatory action. The Court also found that the law was not narrowly drawn. As a means of protecting children from violence, it was seriously underinclusive because it did not cover other types of exposures, such as movies, and permitted exposure so long as a parent or other authorized adult consented. As a means of aiding parental authority, it was overinclusive because it abridged the rights of young people whose parents think these video games are harmless fun.

Justice Alito, joined by the Chief, concurred in the judgment only. After providing a litany of examples of just how violent these games can be (including games involving raping women and children, reenacting President Kennedy's assassination, and attempting to kill off various racial minorities), Alito explained that he was not at all certain that these games were the same as books and that the Court should "proceed with caution" when dealing with this new technology that literally places the viewer in the role of killer in an extremely realistic way (which apparently may, with time, include 3D images and sensory capabilities sufficient to feel the spatter of blood from a victim). Thus, a constitutional statute in this area might well be drafted . . . this just wasn't it because the statute does not define "violent video game" with the "narrow specificity" that the Constitution requires. For example, "maiming" is not defined. Accordingly, it is overly broad, sweeping in potentially protected speech, and cannot stand.

Justice Thomas dissented, painting a compelling historical portrait of the role of parents and children at the founding, one in which parents had complete authority over their children. Given this, Thomas did not believe that children had First Amendment rights to speak or be spoken to without their parents' consent.

Justice Breyer also dissented. He noted that this was a facial challenge, and thus, plaintiff was required to show that a "substantial number" of the law's applications were unconstitutional. Plaintiff could not meet this burden as there were a significant heartland of cases in which the law would be constitutional – that is, extremely violent highly realistic games provided to children under 17. Second, Breyer noted that the statute regulates speech combined with conduct, "a virtual form of target practice." Therefore, more regulation is permissible. Third, the categories of unprotected speech were never as crystal clear and narrow as the majority portrays.

With this background, Breyer first tackled Alito's vagueness argument and found the statute sound. It gives concrete guidance on what is forbidden and also provides an escape hatch for anything of societal value. In short, the statute mirrors statutes upheld in other cases involving minors and "girlie magazines." Finally, the law is adequately justified by California's twin interests in protecting youths and supporting parental authority. While Breyer admitted that the studies on the effects of violent video games were contradictory, he found (after a massive canvassing) plenty of evidence that playing these games caused children to behave more violently. California, which has more competence than the Court, should be permitted to make its determination based on this body of evidence. And aiding parental authority was another compelling goal. Requiring consent for these videos is a modest burden to support the authority of the many parents who wish to prohibit their children from playing these games. The fact that there are two compelling interests that were balanced by California cannot invalidate the statute by making it, according to the majority, simultaneously underinclusive and overly broad. Moreover, with respect to underbreadth, the studies showed sound reasons for treating these interactive games differently than passive media, such as books and movies. Finally, Breyer complained about the Court's odd dichotomy between sex and violence: It would be odd indeed to find that a video game involving the rape, torture and killing of a girl was protected and not subject to regulation . . . unless she was topless.

In Chamber of Commerce of the United States of America v. Whiting (09-115), a fractured Court upheld an Arizona law concerning employment of unauthorized aliens against a challenge that activity by the States in this area was preempted by federal law. The federal Immigration Reform and Control Act ("IRCA") makes it unlawful to knowingly employ an unauthorized alien. Employers must verify an employee's identification on an I-9 form under penalty of perjury. Since 1996, employers have also had the option of participating in a pilot program known as "E-Verify." With E-Verify, employers can submit an online request based on an employee's identification information, and receive either a confirmation or tentative nonconfirmation of the employee's authorization to work. An employee may challenge a nonconfirmation report, but if the challenge fails, his employment must be terminated or the federal government must be informed. Notably, IRCA generally prohibits the Secretary of Homeland Security from requiring persons and entities outside the federal government to participate in E-Verify. IRCA also expressly preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens." But several States, including Arizona, have recently passed laws attempting to impose sanctions for employment of unauthorized aliens, centered around use of E-Verify. A coalition of business and civil rights organizations led by the Chamber of Commerce argued that both aspects of Arizona's law – licensing sanctions and mandatory use of E-Verify – were preempted.

The Court disagreed on both counts. First, the Chief led the conservative wing of the Court in finding that Arizona's law was not expressly preempted by IRCA. IRCA carves out "licensing and similar laws" from preemption, and the Arizona law fits within that saving clause. Under the Arizona law, a state court may order a 10-day suspension of an employer's licenses for a first "knowing" violation, and must impose a 10-day suspension for a first "intentional" violation. A second violation – knowing or intentional – brings a mandatory, permanent revocation of all business licenses. Arizona was careful to define "license" in a way that largely parrots the definition of "license" in the federal Administrative Procedure Act. Arizona's express inclusion of foundational documents such as articles of incorporation, certificates of partnership, and grants of authority to foreign companies is supported by the APA's inclusion of "registration[s]" and "charter[s]." The Court rejected the Chambers' argument that the Arizona law is not a "licensing" law because it operates only to suspend and revoke licenses rather than to grant them. The APA defines "licensing" to include both granting and "revocation, suspension, annulment, [or] withdrawal" proceedings. The Court also rejected the Chambers' argument (and Justice Breyer's dissent) that IRCA's saving clause applies only to farm contracting licenses that had been part of another statute that IRCA superseded. No such limitation could be found in the statute.

The Chief, along with Justices Scalia, Kennedy, and Alito, also concluded that Arizona's law was not impliedly preempted by IRCA. (Justice Thomas presumably sat this part out because he found the express preemption analysis to be sufficient.) In their view, Arizona "went the extra mile" to track IRCA's provisions in all material respects. Arizona adopted the federal definition of who qualifies as an "unauthorized alien"; requires state investigators to consider only the federal government's determination on whether an employee is an unauthorized alien (under an IRCA provision that requires the federal government to verify an individual's citizenship or immigration status in response to a state request); and gives employers the same affirmative defense for good-faith compliance with I-9 forms, and rebuttable presumption of compliance for use of E-Verify, as they have under federal law. The Chief rejected the Chambers' and the dissents' concerns that Arizona law upset Congress's careful balancing of several policy considerations – including avoiding burdens on employers and guarding against employment discrimination – when it enacted IRCA. While license suspension and revocation are significant actions, they are well within state authority. Numerous state and federal laws provide strong incentive not to discriminate. In sum, the "high threshold" for finding a state law to be pre-empted for conflicting with the purposes of a federal law was not met here.

Justice Thomas returned to form a majority for the holding that Arizona's mandate to use E-Verify was not impliedly preempted by IRCA either. To begin, the legislation that created E-Verify only restricted the Secretary of Homeland Security's ability to require participation in E-Verify. Indeed, the federal government relied on that fact (and approvingly referenced Arizona's E-Verify law) in defending a 2008 Executive Order requiring executive agencies to require federal contractors to use E-Verify as a condition of receiving a federal contract. Congress has repeatedly expanded and encouraged the use of E-Verify. And while the United States' amicus brief in this case generally supported the Chambers' preemption challenge, that brief belied the Chambers' arguments that E-Verify was unreliable and/or could not support mandatory use by the states. The United States attested to E-Verify's "successful track record" and assured the Court that E-Verify could "accommodate the increased use that the Arizona statute and existing similar laws would create."

The case generated two dissenting opinions. Justice Breyer penned the first, joined by Ginsburg. Justice Sotomayor penned the second. (Kagan did not participate.) Breyer and Ginsburg focused on the definition of "license." In their view, IRCA's "licensing and similar laws" saving clause refers only to employment-related licensing systems, namely state agricultural labor contractor licensing schemes in place when IRCA was created. The majority's broad reading of "license," by contrast, would undermine IRCA and turn its preemption clause on its head. IRCA balances three competing goals: to discourage employment of unauthorized aliens; to avoid an undue burden on employers; and to prevent employers from disfavoring applicants who appear foreign. The Arizona law upsets this balance. First, it seriously threatens federal anti-discrimination objectives by "radically skewing" the relevant penalties. Whereas the federal law imposes a maximum penalty of $6500 for a second intentional unlawful hire and an equivalent penalty for a second instance of discrimination, the Arizona law would impose the "business death penalty" (the Arizona Governor's words) for the former but no heightened punishment for the latter. Second, Arizona's law subjects lawful employers to increased burdens and risks of erroneous prosecution. The Arizona law relies exclusively on federal determinations, which rely largely on the E-Verify system, but studies have shown that E-Verify provides incorrect preliminary "unemployable" indications 18% of the time. Finally, the Arizona law conflicts with Congress's determination that E-Verify should be a voluntary, pilot program.

In a separate dissent, Justice Sotomayor focused on Congress' comprehensive scheme to address employment of unauthorized aliens in IRCA. Because the scope of "licensing" laws in IRCA's preemption saving clause was ambiguous, it was necessary to look to the statute as a whole. Congress enacted IRCA amidst a patchwork of state laws, and "forcefully" made combating the employment of unauthorized aliens central to federal immigration policy. Congress explicitly expressed its intent that IRCA be enforced not only vigorously, but "uniformly." To that end, the Attorney General was instructed to establish procedures for receiving and investigating complaints, and to designate a specialized federal agency to prosecute violations. Employers are entitled to notice and a hearing before a federal administrative law judge. Congress made no provision for the sharing of work authorization information between federal and state authorities. IRCA does allow, and the Arizona law relies upon, a separate verification system by which States can ascertain the immigration status of aliens applying for benefits such as Medicaid and food stamps. But that only suggests that Congress did not contemplate any role for the States in adjudicating questions regarding employment authorization. Thus, Sotomayor would read the saving clause only to permit States to impose licensing sanctions following a final federal order determining that a person has violated IRCA. Finally, Justice Sotomayor would hold that Arizona and other States are preempted from making use of E-Verify mandatory because doing so "improperly puts States in the position of making decisions for the Federal Government that directly affect expenditure and depletion of federal resources." The United States attests now that it can accommodate increased use based on existing State laws, but Congress has not allocated anywhere near the billions of dollars necessary to make E-Verify a mandatory program across all 50 states.

Finally, we missed out on what could have been a fascinating immigration-meets-equal rights decision when an equally divided Court affirmed, without opinion, the Ninth Circuit's judgment in Flores-Villar v. United States (09-5801). Flores-Villar concerned two former sections of the Immigration and Nationality Act, which imposed a ten-year residency requirement on U.S. citizen fathers – but only a one-year requirement on U.S. citizen mothers – to transmit citizenship to a child born out of wedlock abroad to a non-citizen. The question presented was whether "gender discrimination that has no biological basis" is permitted. Justice Kagan had to sit this one out, and the other Justices, splitting 4-4, decided to remain silent.

That's it for now. As always, thanks for reading!

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400