In the Arizona Election cases (consolidated) the Supreme Court reversed 5-4, holding “Arizona’s matching funds scheme substantially burdens political speech and is not sufficiently justified by a compelling interest to survive First Amendment scrutiny. ”
More analysis soon.
The opinion is here. The California is struck down in an opinion by Justice Scalia. Justice Alito concurred in judgment, joined by Chief Justice Roberts. Justice Thomas and Justice Breyer dissented.
Here is the overview of Scalia’s opinion:
Because the Act imposes a restriction on the content of pro- tected speech, it is invalid unless California can demonstrate that it passes strict scrutiny, i.e., it is justified by a compelling government interest and is narrowly drawn to serve that interest. R. A. V. v. St. Paul, 505 U. S. 377, 395. California cannot meet that standard. Psy- chological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demon- strated effects are both small and indistinguishable from effects pro- duced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regula- tion is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint. California also cannot show that the Act’s restrictions meet the alleged substantial need of parents who wish to restrict their children’s access to violent videos. The video-game industry’s voluntary rating system already accomplishes that to a large extent. Moreover, as a means of assisting parents the Act is greatly overinclusive, since not all of the children who are pro- hibited from purchasing violent video games have parents who dis- approve of their doing so. The Act cannot satisfy strict scrutiny.
Scalia opens up by noting that the First Amendment protects video games.
Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.
Even though this is a new technology, Scalia seeks to apply the First Amendment principles to it (mirroring his approach in Kyllo).
And whatever the challenges of applying the Constitution to ever-advancing technology, “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary” when a new and different medium for communica tion appears.
Justice Scalia recites Stevens, notes its relation to “social costs” (Social Costs!), and says it controls this case:
The Government argued in Stevens that lack of a his- torical warrant did not matter; that it could create new categories of unprotected speech by applying a “simple balancing test” that weighs the value of a particular cate- gory of speech against its social costs and then punishes that category of speech if it fails the test. Stevens, 559 U. S., at ___ (slip op., at 7). We emphatically rejected that “startling and dangerous” proposition. Ibid. “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.” Id., at ___ (slip op., at 9). But without persuasive evidence that a novel re- striction on content is part of a long (if heretofore unrec- ognized) tradition of proscription, a legislature may not revise the “judgment [of] the American people,” embodied in the First Amendment, “that the benefits of its restric- tions on the Government outweigh the costs.” Id., at ___ (slip op., at 7).That holding controls this case.1
Scalia finds the law-in-question here is different, as California attempted to create a new category of speech that receives less protection.
The California Act is something else entirely. It does not adjust the boundaries of an existing category of unpro- tected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults—and it is wise not to, since that is but a hair’s breadth from the argument re- jected in Stevens. Instead, it wishes to create a wholly new category of content-based regulation that is permissi- ble only for speech directed at children. That is unprecedented (Paging Randy Barnett) and mistaken.
Scalia finds that minors have First Amendment rights.
“[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” Erznoznik v. Jackson- ville, 422 U. S. 205, 212–213 (1975) (citation omitted). No doubt a State possesses legitimate power to protect chil- dren from harm, Ginsberg, supra, at 640–641; Prince v. Massachusetts, 321 U. S. 158, 165 (1944), but that does not include a free-floating power to restrict the ideas to which children may be exposed. “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik, supra, at 213–214.3
And, we have storytime with Scalia with the Brothers Grimm, the Oddyssey, and Lord of the Flies
Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim in- deed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jeal- ousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.
High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls. 1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp. 187–189 (A. Mandelbaum transl. Bantam Classic ed. 1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.
Footnote 4, which references Mortal Kombat and Dante, is quite epic:
JUSTICE ALITO accuses us of pronouncing that playing violent video games “is not different in ‘kind’ ” from reading violent literature. Post, at 2. Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny—a question to which we devote our attention in Part III, infra. Even if we can see in them “nothing of any possible value to society . . . , they are as much entitled to the protection of free speech as the best of literature.”
Scalia shows a progression from attempts to ban the violent media of the day—from violent penny novels, to movies, to television, to comic books, to violent video games.
Scalia zings Alito, and goads him for his “independent research.” This passage is killer (no pun intended).
JUSTICE ALITO has done considerable independent re- search to identify, see post, at 14–15, nn. 13–18, video games in which “the violence is astounding,” post, at 14. “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools.” Ibid. JUSTICE ALITO recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. And the same is true of JUSTICE ALITO’s description, post, at 14–15, of those video games he has discovered that have a racial or ethnic motive for their violence—“‘ethnic clean- sing’ [of] . . . African Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.
Scalia states the standard for strict scrutiny (a standard that Justice Breyer does not really apply).
Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can dem- onstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is nar- rowly drawn to serve that interest. The State must specifically identify an “actual prob- lem” in need of solving, Playboy, 529 U. S., at 822–823, and the curtailment of free speech must be actually neces- sary to the solution, see R. A. V., supra, at 395. That is a demanding standard. “It is rare that a regulation restrict- ing speech because of its content will ever be permissible.”
California fails to meet this standard, and Scalia finds its evidence unpersuasive (noteably, he does not consider external evidence, the type Justice Breyer looks like). They show a correlation, not causation.
California cannot meet that standard. The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them,6 and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” Video Software Dealers Assn. 556 F. 3d, at 964. They show at best some correlation between expo- sure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or mak- ing louder noises in the few minutes after playing a vio- lent game than after playing a nonviolent game.7
The majority opinion is short and sweet. Only 18 pages. Scalia assigned it to himself, interestingly. This shows a broad consensus approach to keep people aboard.
Alito’s concurring opinion agrees the law is “not framed with the precision that the Constitution demands,” but does not agree with the Court’s approach. At 17 pages, it is almost as long as the majority opinion.
Alito’s concurrence focuses on deference to the legislator and caution about applying constitutional principles to new technologies.
Justice Alito’s primary concern with the law is that it fails to provide sufficient notice to satisfy due process concerns. On this ground he distinguishes it from Ginsberg.
Here, the California law does not define “violent video games” with the “narrow specificity” that the Constitution demands. In an effort to avoid First Amendment prob- lems, the California Legislature modeled its violent video game statute on the New York law that this Court upheld in Ginsberg v. New York, 390 U. S. 629 (1968)—a law that prohibited the sale of certain sexually related materials to minors, see id., at 631–633. But the California Legisla- ture departed from the Ginsberg model in an important respect, and the legislature overlooked important differ- ences between the materials falling within the scope of the two statutes.
I disagree, however, with the approach taken in the Court’s opinion. In considering the application of un- changing constitutional principles to new and rapidly evolving technology, this Court should proceed with cau- tion. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution.
Scalia replies to this portion in a footnote.
8JUSTICE ALITO is mistaken in thinking that we fail to take account of “new and rapidly evolving technology,” post, at 1. The studies in question pertain to that new and rapidly evolving technology, and fail to show, with the degree of certitude that strict scrutiny requires, that this subject-matter restriction on speech is justified. Nor is JUSTICE ALITO correct in attributing to us the view that “violent video games really present no serious problem.” Post, at 2. Perhaps they do present a problem, and perhaps none of us would allow our own children to play them. But there are all sorts of “problems”—some of them surely more serious than this one—that cannot be addressed by governmental restriction of free expression: for example, the problem of encouraging anti-Semitism (National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam)), the problem of spreading a political philosophy hostile to the Constitution (Noto v. United States, 367 U. S. 290 (1961)), or the problem of encouraging disrespect for the Nation’s flag (Texas v. Johnson, 491 U. S. 397 (1989)).
Alito fears that the majority discounts the fears of those impacted by the laws (Courts protecting countermajoritarian rights tend to do this), and that violent video games are nothing like books or the like.
In the view of the Court, all those concerned about the effects of violent video games—federal and state legisla- tors, educators, social scientists, and parents—are unduly fearful, for violent video games really present no serious problem. See ante, at 10–13, 15–16. Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in “kind” from reading a description of violence in a work of literature. See ante, at 10–11.
The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.
Alito proceeds to distinguish this case from Ginsberg.
The first important difference between the Ginsberg law and the California violent video game statute concerns their respective threshold requirements. As noted, the Ginsberg law built upon the test for adult obscenity, and the current adult obscenity test, which was set out in Miller, requires an obscenity statute to contain a threshold limitation that restricts the statute’s coverage to specifi- cally defined “hard core” depictions. . . . By contrast, the threshold requirement of the California law does not perform the narrowing function served by the limitation in Miller. At least when Miller was decided, depictions of “hard core” sexual conduct were not a com- mon feature of mainstream entertainment. But nothing similar can be said about much of the conduct covered by the California law.
Justice Alito, unlike Justice Breyer was not willing to defer to the legislature’s lack of judgment about what constituted violence.
In drafting the violent video game law, the California Legislature could have made its own judgment regarding the kind and degree of violence that is acceptable in games played by minors (or by minors in particular age groups). Instead, the legislature relied on undefined societal or community standards.
…
In this case, California has not provided any evidence that the California Legislature intended the law to be limited in this way, or cited any decisions from its courts that would support an “oldest minors” construction.5
Another item that troubled Alito at oral arguments, and popped up here, is the inability to distinguish between minors of different ages.
Finally, the difficulty of ascertaining the community standards incorporated into the California law is com- pounded by the legislature’s decision to lump all minors together. The California law draws no distinction between young children and adolescents who are nearing the age of majority.
Alito, in a subtle move, distinguishes “violence” from “obscenity.” (this effectively leaves open violence as a new category of speech).
By the time of this Court’s landmark obscenity cases in the 1960’s, obscenity had long been prohibited, see Roth, 354 U. S., at 484–485, and this experience had helped to shape certain generally accepted norms concerning ex- pression related to sex. There is no similar history regarding expression related to violence. As the Court notes, classic literature contains descriptions of great violence, and even children’s stories sometimes depict very violent scenes.
Another passage suggests he is amenable to limiting what he sees as “violent” speech.
For these reasons, I conclude that the California violent video game law fails to provide the fair notice that the Constitution requires. And I would go no further. I would not express any view on whether a properly drawn statute would or would not survive First Amendment scrutiny. We should address that question only if and when it is necessary to do so.
In In Part II, Justice Alito notes why this case is not controlled by Stevens, and notes that the dissents by Justices Thomas and Breyer “raise valid concerns.”
First, the law doesn’t limit the creation of expressive material, only the limit on its sale.
The Court is wrong in saying that the holding in United States v. Stevens, 559 U. S. ___ (2010), “controls this case.” Ante, at 4. First, the statute in Stevens differed sharply from the statute at issue here. Stevens struck down a law that broadly prohibited any person from creating, selling, or possessing depictions of animal cruelty for commercial gain. The California law involved here, by contrast, is limited to the sale or rental of violent video games to minors. The California law imposes no restriction on the creation of violent video games, or on the possession of such games by anyone, whether above or below the age of 18.
Second, Stevens was about speech categorically not protected by the First Amendment. The strict scrutiny analysis is not applicable to this case.
Second, Stevens does not support the proposition that a law like the one at issue must satisfy strict scrutiny. The portion of Stevens on which the Court relies rejected the Government’s contention that depictions of animal cruelty were categorically outside the range of any First Amend- ment protection. 559 U. S., at __ (slip op., at 5). Going well beyond Stevens, the Court now holds that any law that attempts to prevent minors from purchasing violent video games must satisfy strict scrutiny instead of the more lenient standard applied in Ginsberg, 390 U. S. 629, our most closely related precedent.
Third, this “Sweeping” opinion leaves no room for narrowly tailored opinions.
Third, Stevens expressly left open the possibility that a more narrowly drawn statute targeting depictions of animal cruelty might be compatible with the First Amendment. See 559 U. S., at ___ (slip op., at 19). In this case, the Court’s sweeping opinion will likely be read by many, both inside and outside the video-game industry, as suggesting that no regulation of minors’ access to violent video games is allowed—at least without supporting evi- dence that may not be realistically obtainable given the nature of the phenomenon in question.
Alito repeats an argument Breyer made, that this law “reinforces parental decisionmaking.”
If parents want their child to have a violent video game, the California law does not interfere with that parental prerogative. Instead, the California law reinforces parental decisionmaking in exactly the same way as the New York statute upheld in Ginsberg. Under both laws, minors are prevented from purchasing certain materials; and under both laws, par- ents are free to supply their children with these items if that is their wish. . . . Nor does the Court note, as JUSTICE BREYER points out, see post, at 11 (dissenting opinion), that many parents today are simply not able to monitor their children’s use of com- puters and gaming devices.
In a footnote, Scalia responded to Alito’s arguments.
JUSTICE ALITO distinguishes Stevens on several grounds that seem to us ill founded. He suggests, post, at 10 (opinion concurring in judg- ment), that Stevens did not apply strict scrutiny. If that is so (and we doubt it), it would make this an a fortiori case. He says, post, at 9, 10, that the California Act punishes the sale or rental rather than the “creation” or “possession” of violent depictions. That distinction ap- pears nowhere in Stevens itself, and for good reason: It would make permissible the prohibition of printing or selling books—though not the writing of them. Whether government regulation applies to creating, distributing, or consuming speech makes no difference. And finally, JUSTICE ALITO points out, post, at 10, that Stevens “left open the possi- bility that a more narrowly drawn statute” would be constitutional. True, but entirely irrelevant. Stevens said, 559 U. S., at ___ (slip op., at 19), that the “crush-video” statute at issue there might pass muster if it were limited to videos of acts of animal cruelty that violated the law where the acts were performed. There is no contention that any of the virtual characters depicted in the imaginative videos at issue here are criminally liable.
Alito also takes time to distinguish video games from other types of expressive conduct.
Finally, the Court is far too quick to dismiss the possi- bility that the experience of playing video games (and the effects on minors of playing violent video games) may be very different from anything that we have seen before. Any assessment of the experience of playing video games must take into account certain characteristics of the video games that are now on the market and those that are likely to be available in the near future.
Methinks one of Alito’s clerks is a video game fanboy, with this paragraph:
Today’s most advanced video games create realistic alternative worlds in which millions of players immerse themselves for hours on end. These games feature visual imagery and sounds that are strikingly realistic, and in the near future video-game graphics may be virtually indistinguishable from actual video footage.7 Many of the games already on the market can produce high definition images,8 and it is predicted that it will not be long before video-game images will be seen in three dimensions.9 It is also forecast that video games will soon provide sensory feedback.10 By wearing a special vest or other device, a player will be able to experience physical sensations sup- posedly felt by a character on the screen.11 Some amici who support respondents foresee the day when “‘virtual- reality shoot-‘em-ups’” will allow children to “‘actually feel the splatting blood from the blown-off head’” of a victim.
In short, video games have the potential to really mess up teens:
If the technological characteristics of the sophisticated games that are likely to be available in the near future are combined with the characteristics of the most violent games already marketed, the result will be games that allow troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence.
Alito poo-poos Nino’s arguments that “all literature is interactive,” and goads him for not deferring to some expert group.
The Court is untroubled by this possibility. According to the Court, the “interactive” nature of video games is “noth- ing new” because “all literature is interactive.” Ante, at 10–11. Disagreeing with this assessment, the Interna- tional Game Developers Association (IGDA)—a group that presumably understands the nature of video games and that supports respondents—tells us that video games are “far more concretely interactive.” Brief for IGDA et al. as Amici Curiae 3. And on this point, the game developers are surely correct.
Scalia disagrees, with a citation to Posner.
As for the argument that video games enable participation in the violent action, that seems to us more a matter of de- gree than of kind. As Judge Posner has observed, all literature is interactive.
Alito uses the murder from Crime & Punishment as an example:
But only an extraordinar- ily imaginative reader who reads a description of a killing in a literary work will experience that event as vividly as he might if he played the role of the killer in a video game. To take an example, think of a person who reads the passage in Crime and Punishment in which Raskolni- kov kills the old pawn broker with an axe. See F. Dostoyevsky, Crime and Punishment 78 (Modern Library ed. 1950). Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same
Video games are just different:
When all of the characteristics of video games are taken into account, there is certainly a reasonable basis for thinking that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie. And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The Court acts prematurely in dismissing this possibility out of hand.
Alito would leave this issue to another day:
For all these reasons, I would hold only that the particu- lar law at issue here fails to provide the clear notice that the Constitution requires. I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Fed- eral Government, we can consider the constitutionality of those laws when cases challenging them are presented to us.
Justice Thomas has an originalist dissent, whereby the First Amendment “does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.” At 20 pages, Thomas’ dissent is longer than the majority opinion.
The Court’s decision today does not comport with the original public understanding of the First Amendment. The majority strikes down, as facially unconstitutional, a state law that prohibits the direct sale or rental of certain video games to minors because the law “abridg[es] the freedom of speech.” U. S. Const., Amdt. 1. But I do not think the First Amendment stretches that far. The prac- tices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians. I would hold that the law at issue is not facially unconstitutional under the First Amendment, and reverse and remand for further proceedings.
With a 20 page opinion, and a 15 page appendix of various studies dealing with the effects of video game violence (that eerily mirrors his dissents in McDonald), Justice Breyer would affirm.
Ap plying traditional First Amendment analysis, I would uphold the statute as constitutional on its face and would consequently reject the industries’ facial challenge.
Is this a Supreme Court opinion, or a law review article?
If these studies were so important, why weren’t they cited by the parties?
Many, but not all, of these articles were available to the California Legislature or the parties in briefing this case. I list them because they suggest that there is substantial (though controverted) evidence supporting the expert associations of public health professionals that have con cluded that violent video games can cause children psycho logical harm. See supra, at 15–16. And consequently, these studies help to substantiate the validity of the origi nal judgment of the California Legislature, as well as that judgment’s continuing validity.
This is beyond rational basis review. Justice Breyer is covering the assess of the legislators who failed to justify their own statute that infringed invidual liberty. Justice Holmes would be proud.
In his First Amendment analysis, Justice Breyer focuses not on the violent aspect of the speech, but in the interest of the state in protecting children.
In doing so, the special First Amendment category I find relevant is not (as the Court claims) the category of “depictions of violence,” ante, at 8, but rather the category of “protection of children.” This Court has held that the “power of the state to control the conduct of children reaches beyond the scope of its authority over adults.” Prince v. Massachu- setts, 321 U. S. 158, 170 (1944).
Breyer rejects the vagueness argument.
In my view, California’s statute provides “fair notice of what is prohibited,” and consequently it is not impermis sibly vague. . . . Why are the words “kill,” “maim,” and “dismember” any more difficult to understand than the word “nudity?” JUSTICE ALITO ob jects that these words do “not perform the narrowing function” that this Court has required in adult obscenity cases, where statutes can only cover “‘hard core’” depic tions. Ante, at 6 (opinion concurring in judgment). But the relevant comparison is not to adult obscenity cases but to Ginsberg, which dealt with “nudity,” a category no more “narrow” than killing and maiming. And in any event, narrowness and vagueness do not necessarily have any thing to do with one another. All that is required for vagueness purposes is that the terms “kill,” “maim,” and “dismember” give fair notice as to what they cover, which they do.
Breyer is in favor of applying a “strict standard of review.” (Is that strict scrutiny?) Breyer identifies 5 (random?) factors he sees as important to First Amendement analysis.
Rather, in applying it, I would evaluate the degree to which the statute injures speech-related interests, the nature of the potentially-justifying “compelling interests,” the degree to which the statute furthers that interest, the nature and effectiveness of possible alternatives, and, in light of this evaluation, whether, overall, “the statute works speech related harm . . . out of proportion to the benefits that the statute seeks to provide.” Ibid. See also Burson v. Free- man, 504 U. S. 191, 210 (1992) (plurality opinion) (apply ing strict scrutiny and finding relevant the lack of a “significant impingement” on speech). First Amendment standards applied in this way are difficult but not impossible to satisfy.
Scalia finds that Breyer fails to properly apply strict scrutiny.
Let’s see the extent to which he actually identifies individual liberty interests (he fails on this ground in McDonald).
Breyer finds the infringement on individual liberty appropriate because “California has substan tiated its claim of harm with considerably stronger evidence.”
Part of this analysis is based on empirical studies.
There are many scientific studies that support Califor nia’s views. Social scientists, for example, have found causal evidence that playing these games results in harm. Longitudinal studies, which measure changes over time, have found that increased exposure to violent video games causes an increase in aggression over the same period.
And he continues to cite page after page of study, in addition to his 20 page appendix. Elsewhere I have ranted about the Court relying on statistics provided by amici that were never introduced at the trial level. Justice Breyer did one better. He cited stats not even submitted by amici, but he gathered himself with the assistance of the Supreme Court Library. Unreal.
With the assistance of the Supreme Court Library, I have compiled these two appendixes listing peer-reviewed academic journal articles on the topic of psychological harm resulting from playing violent video games. The library conducted a search for relevant articles on the following databases: PsycINFO, PubMed, Academic Search Premier, ArticleFirst (OCLC), and Dialog (files 1, 7, 34, 98, 121, 142, 144, 149). The following search terms were used: “(video* or computer or arcade or online) and (game*) and (attack* or fight* or aggress* or violen* or hostil* or ang* or arous* or prosocial or help* or desens* or empathy).” After eliminating irrelevant matches based on title or abstract, I categorized these articles as either supporting the hypothesis that violent video games are harmful (listed in Appendix A), or not supporting/rejecting the hypothesis that violent video games are harmful (listed in Appendix B).
And, in a sign of humility, Justice Breyer notes that studies vary, and as a Judge he lacks the ability to say which is right. It is funny he did not deign to mention this infirmity in McDonald or Heller, where he cited numerous studies, which are subject to great debate.
Experts debate the conclusions of all these studies. Like many, perhaps most, studies of human behavior, each study has its critics, and some of those critics have pro duced studies of their own in which they reach different conclusions. (I list both sets of research in the appen dixes.) I, like most judges, lack the social science expertise to say definitively who is right. But associations of public health professionals who do possess that expertise have reviewed many of these studies and found a significant risk that violent video games, when compared with more passive media, are particularly likely to cause children harm.
With this caution, he proceeds to cite several more pages of studies, which allows him to defer to the legislature.
Unlike the majority, I would find sufficient grounds in these studies and expert opinions for this Court to defer to an elected legislature’s conclusion that the video games in question are particularly likely to harm children. This Court has always thought it owed an elected legislature some degree of deference in respect to legislative facts of this kind, particularly when they involve technical mat ters that are beyond our competence, and even in First Amendment cases. See Holder, 561 U. S., at ___ (slip op., at 28–29) (deferring, while applying strict scrutiny, to the Government’s national security judgments); Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 195–196 (1997) (deferring, while applying intermediate scrutiny, to the Government’s technological judgments). The majority, in reaching its own, opposite conclusion about the validity of the relevant studies, grants the legislature no deference at all.
These are not “legislative facts” you can take judicial notice of. These are studies—some briefed by amici, some gathered by the Supreme Court library—that the legislature knew nothing about. These facts were never introduced into the record of the legislature. They were never introduced as evidence in the lower court. Giving deference to facts not introduced by the parties involved is typical of rational basis review. This deference is totally unwarranted here.
Scalia smacks down Breyer for looking to studies outside the record.
JUSTICE BREYER would hold that California has satisfied strict scrutiny based upon his own research into the issue of the harmfulness of violent video games. See post, at 20–35 (Appendixes to dissenting opinion) (listing competing academic articles discussing the harmful- ness vel non of violent video games). The vast preponderance of this research is outside the record—and in any event we do not see how it could lead to JUSTICE BREYER’s conclusion, since he admits he cannot say whether the studies on his side are right or wrong. Post, at 15. Similarly, JUSTICE ALITO says he is not “sure” whether there are any constitutionally dispositive differences between video games and other media. Post, at 2. If that is so, then strict scrutiny plainly has not been satisfied.
Justice Breyer even finds lacking the free-market rating system introduced to prevent minors from purchasing video games.
he majority points to a voluntary alterna tive: The industry tries to prevent those under 17 from buying extremely violent games by labeling those games with an “M” (Mature) and encouraging retailers to restrict their sales to those 17 and older. See ante, at 15–16. But this voluntary system has serious enforcement gaps. When California enacted its law, a Federal Trade Com mission (FTC) study had found that nearly 70% of unac companied 13- to 16-year-olds were able to buy M-rated video games.
Breyer, in what Mark Tushnet would probably call “annoying” makes a claim about what kind of “First Amendment” permits the sale of violent video games, but not pornographic materials, to a minor (an anomaly with Ginsberg).
But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13 year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restrict- ing sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?
In the conclusion, Justice Breyer views this as a law helping parents. Paternalism to the max.
This case is ultimately less about censorship than it is about education. Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to mak ing our system of government work. Education, however, is about choices. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments. In my view, the First Amendment does not disable government from helping parents make such a choice here—a choice not to have their children buy ex tremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children.
Scalia repudiates this. He notes that not all parents want their children to avoid video games (or even care). This paternalistic approach is telling parents what they “ought” to want.
And finally, the Act’s purported aid to parental author- ity is vastly overinclusive. Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation’s effect may indeed be in support of what some parents of the re- stricted children actually want, its entire effect is only in support of what the State thinks parents ought to want. This is not the narrow tailoring to “assisting parents” that restriction of First Amendment rights requires.
In conclusion, Scalia sounds the alarm against censorship.
California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors. While we have pointed out above that some of the evidence brought forward to support the harmfulness of video games is unpersuasive, we do not mean to demean or disparage the concerns that underlie the attempt to regulate them—concerns that may and doubtless do prompt a good deal of parental oversight. We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development. Our task is only to say whether or not such works constitute a “well-defined and narrowly limited clas[s] of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,” Chaplinsky, 315 U. S., at 571– 572 (the answer plainly is no); and if not, whether the regulation of such works is justified by that high degree of necessity we have described as a compelling state interest (it is not). Even where the protection of children is the object, the constitutional limits on governmental action apply.
Justice Breyer cited a youtube video. This is first for SCOTUS (though he didn’t cite the First Amendment).
In this post I will provide an Instant (not quite as Instant as usual, but hey, I was on a plane) Analysis of Sorrell v. IMS Health. I already blogged about the invocation of Lochner by Breyer and Kennedy.
After explaining commercial speech doctrine, Kennedy finds heightened scrutiny applies.
Act 80 is designed to impose a specific, content-based burden on protected expression. It follows that heightened judicial scrutiny is warranted.
Justice Breyer does not view this as a pure free speech issue. Rather he views it as a regulation on a commercial interest. Unsurprisingly, this continues the Citizens United meme about what kind of constitutional rights corporate entities can have.
In my view, this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special “heightened” standard of review when reviewing such an effort. And, in any event, the statute meets the First Amendment standard this Court has previously applied when the government seeks to regulate commercial speech. For any or all of these reasons, the Court should uphold the statute as constitutional.
Breyer views this is a simple balancing test (how else?) where the interests of the regulatory state win (how else?).
In this case I would ask whether Vermont’s regulatory provisions work harm to First Amendment interests that is disproportionate to their furtherance of legitimate regu- latory objectives. And in doing so, I would give significant weight to legitimate commercial regulatory objectives—as this Court did in Glickman. The far stricter, specially “heightened” First Amendment standards that the major- ity would apply to this instance of commercial regulation are out of place here.
And, in language evoking his opinion in Heller, Breyer speaks about “core” First Amendment rights.
Thus, the First Amendment imposes tight constraints upon government efforts to restrict, e.g., “core” political speech, while imposing looser constraints when the government seeks to restrict, e.g., commercial speech, the speech of its own employees, or the regulation-related speech of a firm subject to a traditional regulatory pro- gram.
The other day I blogged about Justice Scalia’s curious invocation of the word “core” to describe certain types of rights. Now, this makes more sense. I think this may be a new distinction. Core rights get protection. Penumbral rights get less protection.
After reciting the standards for intermediate scrutiny for commercial speech under Central Hudson, Breyer noted that “the Court has also normally applied a yet more lenient approach to ordinary commercial or regulatory legislation that affects speech in less direct ways.” Breyer proceeds in a paen to judicial deference, with specific refernces to the Due Process and Commerce Clause (I wonder why he would mention that???):
The Court has also normally applied a yet more lenient approach to ordinary commercial or regulatory legislation that affects speech in less direct ways. See Glickman, supra, at 475–476. “Our function” in such cases, Justice Brandeis said, “is only to determine the reasonableness of the legislature’s belief in the existence of evils and in the effectiveness of the remedy provided.”
Then, Breyer cites Lee Optical and Carolene Products, the apogee of judicial deference!
Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955) (“It is enough that there is an evil at hand for correction, and that it might be thought that the particular legisla- tive measure was a rational way to correct it”); United States v. Carolene Products Co., 304 U.S. 144, 152 (1938) (“[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators”).
I would caution Justice Breyer to consider the entirety of Carolene Products FN 4, including the part about protecting enumerated rights—hint hint, second amendment.
Justice Breyer thinks applying a regular First Amendment analysis of an economic regulation violates with this “constitutional approach.”
To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial mes- sage) would work at cross-purposes with this more basic constitutional approach.
And by this “constitutional approach,” he means the jurisprudence of maximized deference—a position in which he is in the minority (at least on this issue, I think).
Breyer notes that this approach will empower judges to make legislative determinations (I’ll blog more about how Breyer loves making these decisions for other rights he appreciates, see Carhart).
Since ordinary regulatory pro- grams can affect speech, particularly commercial speech, in myriad ways, to apply a “heightened” First Amendment standard of review whenever such a program burdens speech would transfer from legislatures to judges the primary power to weigh ends and to choose means, threat- ening to distort or undermine legitimate legislative ob- jectives.
And, in the Godwin’s Law of legal debate, Justice Breyer invokes, drom-roll please (!), Lochner!
To apply a “heightened” standard of review in such cases as a matter of course would risk what then-Justice Rehnquist, dissenting in Central Hudson, described as a
“retur[n] to the bygone era of Lochner v. New York, 198 U. S. 45 (1905), in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to imple- ment its considered policies.” 447 U. S., at 589.
Rehnquist’s admonition is wrong as a historical and legal matter (see Bernstein’s book), but Breyer’s invocation of Lochner here is nothing more than a bogeyman to alarm people.
Breyer proceeds to list a number of reasons why heightened scrutiny should not apply here.
For one thing, Ver- mont’s statute neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view, whether ideological or related to the sale of a product. . . . For another thing, the same First Amendment stan- dards that apply to Vermont here would apply to similar regulatory actions taken by other States or by the Federal Government acting, for example, through Food and Drug Administration (FDA) regulation. . . . . Further, the statute’s requirements form part of a tra- ditional, comprehensive regulatory regime. . . . Finally, Vermont’s statute is directed toward informa- tion that exists only by virtue of government regulation. Under federal law, certain drugs can be dispensed only by a pharmacist operating under the orders of a medical practitioner.
Breyer’s major concern seems to be impeding regulatory means. This does not make him happy.
If the Court means to create constitutional barriers to regulatory rules that might affect the content of a com- mercial message, it has embarked upon an unprecedented task—a task that threatens significant judicial interfer- ence with widely accepted regulatory activity.
His opinion has a real New Deal tone to it. In addition to the invocations of Carolene Products and Lochner, Breyer cites a message to Congress from FDR in 1937.
Any statutory initiative stems from a legislative agenda. See, e.g., Message to Congress, May 24, 1937, H. R. Doc. No. 255, 75th Cong., 1st Sess., 4 (request from President Franklin Roosevelt for legislation to ease the plight of factory workers).
His view of the First Amendment is purely Holmesian—the value of free speech is not because of some innate liberty or freedom of expression, but rather it exists to enable the operation of the state and the marketplace of ideas.
In short, the case law in this area reflects the need to ensure that the First Amendment protects the “market- place of ideas,” thereby facilitating the democratic creation of sound government policies without improperly hamper- ing the ability of government to introduce an agenda, to implement its policies, and to favor them to the exclusion of contrary policies. To apply “heightened” scrutiny when the regulation of commercial activities (which often in- volve speech) is at issue is unnecessarily to undercut the latter constitutional goal. The majority’s view of this case presents that risk.
Again, Breyer invokes Lochner, and makes a reference to Holmes quip about Herbert Spencer’s social statics.
Moreover, given the sheer quantity of regulatory initia- tives that touch upon commercial messages, the Court’s vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitu- tionalization of economic theories preferred by individual jurists. See Lochner v. New York, 198 U. S. 45, 75–76 (1905) (Holmes, J., dissenting). By inviting courts to scrutinize whether a State’s legitimate regulatory inter- ests can be achieved in less restrictive ways whenever they touch (even indirectly) upon commercial speech, today’s majority risks repeating the mistakes of the past in a manner not anticipated by our precedents.
The irony, of course is that Holmes, and Breyer (by extension) are much closer to Spencer’s views about the unchecked ability of majorities to rule in certain spheres (see Bernstein’s book).
In a throw-away paragraph, Breyer notes that the Court doesn’t merely rubberstamp economic regulations that have an impact on speech—no the Court applies a rational basis test (what’s the difference?).
This does not mean that economic regulation having some effect on speech is always lawful. Courts typically review the lawfulness of statutes for rationality and of regulations (if federal) to make certain they are not “arbi- trary, capricious, [or] an abuse of discretion.” 5 U. S. C. §706(2)(A). And our valuable free-speech tradition may play an important role in such review. But courts do not normally view these matters as requiring “heightened” First Amendment scrutiny—and particularly not the un- forgiving brand of “intermediate” scrutiny employed by the majority. Because the imposition of “heightened” scrutiny in such instances would significantly change the legislative/judicial balance, in a way that would signifi- cantly weaken the legislature’s authority to regulate commerce and industry, I would not apply a “heightened” First Amendment standard of review in this case.
Just for good measure, Justice Breyer cites Lochner a third time (it must be like clicking your heels, except instead of returning to Kansas, you return to a bakery in New York in 1905).
At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. See, e.g., supra, at 7–8, 9–11. At worst, it re- awakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue. See Central Hudson, 447 U. S., at 589 (Rehnquist, J., dissenting).
This opinion will continue the debate over rights of corporations began in Citizens United, and by proxy continued in Iqbal and Wal-Mart v. Dukes.
In Wal-Mart v. Dukes, Justice Scalia delivered the opinion of the Court. Chief Justice Roberts and Justices Kennedy, Thomas, and Alito joined entirely. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined as to Parts I and III.
We are presented with one of the most expansive class actions ever. The District Court and the Court of Appeals approved the certification of a class comprising about one and a half million plaintiffs, current and former female employees of petitioner Wal-Mart who allege that the discretion exercised by their local supervisors over pay and promotion matters violates Title VII by discriminating against women. In addition to injunctive and declaratory relief, the plaintiffs seek an award of backpay. We consider whether the certification of the plaintiff class was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2).
The entire Court held that “The certification of the plaintiff class was not consistent with Rule 23(a).”
In this Part, Justice Scalia only wrote for 5 members. He begins by explaining “commonality” under Rule 23(a)(2).
The crux of this case is commonality—the rule requiringa plaintiff to show that “there are questions of law or fact common to the class.” Rule 23(a)(2).5 That language is easy to misread, since “[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 131–132 (2009). . . . Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury,” Falcon, supra, at 157. This does not mean merely that they have all suffered a violation of the same provision of law. . . . Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.
Scalia notes that an attempt to sue about millions of employment decision at once would not yield a single answer for why an individual employee was disfavored.
Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to saythat examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.
Scalia, relying on Falcon, identifies “two ways in which that conceptual gap [between an individual’s claim of injury and class’s common injury] might be bridged.”
First, if the employer “used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).” Second, “[s]ignificant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes.”
The first “burden” does not apply because no testing process exists.
The first manner of bridgingthe gap obviously has no application here; Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of permitting discretionary decisionmaking is to avoid evaluating employees under a common standard.
Scalia rejects the second burden, as ““significant proof” that Wal-Mart “operated under a general policy of discrimination . . . is entirely absent here.” Scalia discounts the Plaintiffs’ expert witness.
The only evidence of a “general policy of discrimination” respondents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “‘vulnerable’” to “gender bias.” Id., at 152. He could not, however, “determine with any specificity how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart. At his deposition . . . Dr. Bielby conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.”
Scalia even notes that Daubert should have applied at the class action certification stage.
The parties dispute whether Bielby’s testimony even met the standards for the admission of expert testimony under Federal Rule of Civil Procedure 702 and our Daubert case. The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. 222 F. R. D., at 191. We doubt that is so, but even if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[W]hether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard what he has to say. It is worlds away from “significant proof” that Wal-Mart “operated under a general policy of discrimination.”
Scalia, in disagreement with Justice Ginsburg, finds that an employment policy that provides managers with discretion weakens the inference that there is discrimination.
The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common and presumptively reasonable way of doing business—one that we have said “should itself raise no inference of discriminatory conduct,”
Just because discretion can lead to discrimination does not mean this is always the case.
But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. . . . A partyseeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.
Scalia would require a “common mode of exercising discretion that pervades the entire company.” This point does not address Ginsburg’s claim of inherent and implicit bias.
Finally, Scalia rejects the Plaintiffs’ regression analysis. Even if it does show statistically significant “disparities between men and women at Wal-Mart . . .[and] these disparities . . . can be explained only by gender discrimination,” “that would still not demonstrate that commonality of issue exists.” Scalia also rejects the use of anecdotes to prove discrimination: “But when the claim is that a company operates under a general policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all.”
Citing Chief Judge Kozinski’s opinion, the Plaintiffs have “little in common but their sex and this lawsuit.”
In Part II, Justice Scalia wrote for the entire Court that “respondents’ claims for backpay were improperly certified under Federal Rule of Civil Procedure 23(b)(2).”
Our opinion in Ticor Title Ins. Co. v. Brown, 511 U. S. 117, 121 (1994) (per curiam) expressed serious doubt about whether claims for monetary relief may be certified under that provision. We now hold that they may not, at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief.
The Plaintiffs argued that “their claims for backpay were appropriately certified as part ofa class under Rule 23(b)(2) because those claims do not“predominate” over their requests for injunctive and declaratory relief.” After rejecting their reliance on the Advisory Committee’s notes—“Of course it is the Rule itself, not the Advisory Committee’s description of it, that governs,”—Justice Scalia identifies that “Respondents’ predominance test, moreover, creates perverse incentives for class representatives to place at risk potentially valid claims for monetary relief.”
First, Justice Ginsburg notes where she agrees with the majority.
The class in this case, I agree with the Court, should not have been certified under Federal Rule of Civil Procedure 23(b)(2). The plaintiffs, alleging discrimination in violation of Title VII, 42 U. S. C. §2000e et seq., seek monetary relief that is not merely incidental to any injunctive or declaratory relief that might be available. See ante, at 20–
27. A putative class of this type may be certifiable under Rule 23(b)(3), if the plaintiffs show that common class questions “predominate” over issues affecting individuals— e.g., qualification for, and the amount of, backpay or compensatory damages—and that a class action is “superior” to other modes of adjudication.
She departs from the majority in that she would remand the case to determine whether the class meets the requirements of 23(b)(3).
Whether the class the plaintiffs describe meets the specific requirements of Rule 23(b)(3) is not before the Court, and I would reserve that matter for consideration and decision on remand.1 The Court, however, disqualifies the class at the starting gate, holding that the plaintiffs cannot cross the “commonality” line set by Rule 23(a)(2). In so ruling, the Court imports into the Rule 23(a) determination concerns properly addressed in a Rule 23(b)(3) assessment.
Someone call Adam Liptak. Justice Ginsburg used not one, but two (!) dictionaries to define the word “question.” Holmes never needed no stinking dictionary.
A “question” is ordinarily understood to be “[a] subject or point open to controversy.” American Heritage Dictionary 1483 (3d ed. 1992). See also Black’s Law Dictionary 1366 (9th ed. 2009) (defining “question of fact” as “[a]disputed issue to be resolved . . . [at] trial” and “question of law” as “[a]n issue to be decided by the judge”).
Justice Ginsburg includes her own lengthy fact section from the district court proceedings, focusing on the claims of Dukes regarding gender stereotypes.
Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management employees.” 222 F. R. D., at 146. “[T]he higher one looks in the organization the lower the percentage of women.” Id., at 155. The plaintiffs’ “largely uncontested descriptive statistics” also show that women working in the company’s stores “are paid less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.” Ibid.; cf. Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618, 643 (2007) (GINSBURG, J., dissenting).
Ginsburg also recounts a number of “class members’ tales of their own experiences.”
The plaintiffs’ evidence, including class members’ tales of their own experiences,4 suggests that gender bias suffused Wal-Mart’s company culture. Among illustrations, senior management often refer to female associates as “little Janie Qs.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 13 (internal quotation marks omitted). One manager told anemployee that “[m]en are here to make a career and women aren’t.” 222 F. R. D., at 166 (internal quotation marks omitted). A committee of female Wal-Mart executives concluded that “[s]tereotypes limit the opportunities offered to women.”
In Part C, Justice Ginsburg talks about the risk of bias and discretion which may result in “disparate effects.”
The District Court’s identification of a common question, whether Wal-Mart’s pay and promotions policies gave rise to unlawful discrimination, was hardly infirm. The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects. Managers, like all humankind, may be prey to biases of which they are unaware.6 The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.
Citing Watson v. Fort Worth Bank & Trust and Wards Cove—cases that preceded the Civil Rights Act of 199— which purported to weaken the disparate impact test, Justice Ginsburg noted:
Aware of “the problem of subconscious stereotypes and prejudices,” we held that the employer’s “undisciplined system of subjective decisionmaking” was an “employment practic[e]” that “may be analyzed under the disparate impact approach.” . . .
The plaintiffs’ allegations state claims of gender discrimination in the form of biased decisionmaking in both pay and promotions. The evidence reviewed by the District Court adequately demonstrated that resolving those claims would necessitate examination of particular policies and practices alleged to affect, adversely and globally, women employed at Wal-Mart’s stores. Rule 23(a)(2), setting a necessary but not a sufficient criterion for classaction certification, demands nothing further.
Justice Ginsburg disagrees with the “dissimilarities” approach the Court adopted.
The “dissimilarities” approach leads the Court to train its attention on what distinguishes individual class members, rather than on what unites them
Ginsburg concludes by elaborating on the nature of employment discrimination, and how these violations of law could be remedied through Rule 23.
Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores. The very nature of discretion is that people will exercise it in various ways. A system of delegated discretion, Watson held, is a practice actionable under Title VII when it produces adiscriminatory outcomes. 487 U. S., at 990–991; see supra, at 7–8. A finding that Wal-Mart’s pay and promotions practices in fact violate the law would be the firststep in the usual order of proof for plaintiffs seeking individual remedies for company-wide discrimination. Teamsters v. United States, 431 U. S. 324, 359 (1977); see Albemarle Paper Co. v. Moody, 422 U. S. 405, 415–423 (1975).That each individual employee’s unique circumstances will ultimately determine whether she is entitled to backpay or damages, §2000e–5(g)(2)(A) (barring backpay if a plaintiff “was refused . . . advancement . . . for any reason other than discrimination”), should not factor into the Rule 23(a)(2) determination.
In Nevada Comm’n on Ethics v. Carrigan, Justice Scalia for a unanimous Court held that “The Nevada Ethics in Government Law is not unconstitutionally overbroad.” Justice Kennedy concurred. Justice Alito concurred in part and concurred in judgment.
Scalia’s opinion is relatively straightforward. First, he finds the regulation a “reasonable time, place, and manner limitation.”
If Carrigan was constitutionally excluded from voting, his exclusion from “advocat[ing]” at the legislative session was a reasonable time, place and manner limitation. See Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984) . . . Carrigan does not assert that the recusal laws here are viewpoint discriminatory, nor could he: The statute is content-neutral and applies equally to all legislators regardless of party or position.
Second, he notes that since the founding of the United States, the Senate has had in place recusal laws for those with an interest in the legislation.
Within 15 years of the founding, both the House of Representatives and the Senate adopted recusal rules. The House rule—to which no one is recorded as having objected, on constitutional or other grounds, see D. Currie, The Constitution in Congress: The Federalist Period 1789–1801, p. 10 (1997)—was adopted within a week of that chamber’s first achieving a quorum . . . Members of the House would have been subject to this recusal rule when they voted to submit the First Amendment for ratification; their failure to note any inconsistency between the two suggests that there was none.
Third, legislative voting is not protected speech. Specifically, a legislator casting a vote is not merely expressing his personal preferences, but is in fact casting his vote ““as trustee for his con-stituents, not as a prerogative of personal power.”
The answer is that a legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it. . . . While “a voter’s franchise is a personal right,” “[t]he procedures for voting in legislative assemblies . . . pertain to legislators not as individuals but as political representatives executing the legislative process.” Coleman v. Miller, 307 U. S. 433, 469–470 (1939) (opinion of Frankfurter, J.).
Thus, there is no constitutional violation.
Justice Kennedy wrote separately to comment on any first Amendment issues separate from the act of casting a vote.
Neither in the submissions of the parties to this Court defining the issues presented, nor in the opinion of the Nevada Supreme Court, were the Nevada statutory provisions here at issue challenged or considered from the standpoint of burdens they impose on the First Amendment speech rights of legislators and constituents apart from an asserted right to engage in the act of casting a vote.
Kennedy seems to be willing to protect other forms of speech associated with the legislative process, apart from voting.
The statute may well impose substantial burdens on what undoubtedly is speech. The democratic process presumes a constant interchange of voices. Quite apart from the act of voting, speech takes place both in the election process and during the routine course of communications between and among legislators, candidates, citizens, groups active in the political process, the press, and the public at large. This speech and expression often finds powerful form in groups and associations with whom a legislator or candidate has long and close ties, ties made all the stronger by shared outlook and civic purpose. The process is so intricate a part of communication in a democracy that it is difficult to describe in summary form, lest its fundamental character be understated.
Kennedy imagines a scenario where someone runs for office based on the urging of his friends, with whom he shares a certain “strong and carefully considered position” on some position.
The question then arises what application the Nevada statute has if a legislator who was elected with that support were to vote upon legislation central to the shared cause, or, for that matter, any other cause supported by those friends and affiliates. . . . There is, in my view, a serious concern that the statute imposes burdens on the communications and expressions just discussed. . . . At least without the benefit of further submissions or argument or explanation, it seems that one fair interpretation, if not the necessary one, is that the statute could apply to a legislator whose personal life is tied to the longstanding, close friendships he or she has forged in the common cause now at stake.
Focusing on the chilling effect of this vague statute, Kennedy notes it could be unconstitutional.
And if the statute imposes unjustified burdens on speech or association protected by the First Amendment, or if it operates to chill or suppress the exercise of those freedoms by reason of vague terms oroverbroad coverage, it is invalid. A statute of this sort is an invitation to selective enforcement; and even if enforcement is undertaken in good faith, the dangers of suppression of particular speech or associational ties may well be too significant to be accepted.
The Majority opinion stresses that this issue was not decided below, not raised by Carrigan in his brief in opposition to cert, and is thus waived.
Carrigan raises two additional arguments in his brief: that Nevada’s catchall provision unconstitutionally burdens the right of association of officials and supporters, and that the provision is unconstitutionally vague. Whatever the merits of these arguments, we have no occasion to consider them. Neither was decided below: The Nevada Supreme Court made no mention of the former argument and said that it need not address the latter given its resolution of the overbreadth challenge, 126 Nev. ___, n. 4, 236 P. 3d, at 619, n. 4. Nor was either argument raised in Carrigan’s brief in opposition to the petition for writ of certiorari. Arguments thus omitted are normally considered waived, see this Court’s Rule 15.2; Baldwin v. Reese, 541 U. S. 27, 34 (2004), and we find no reason to sidestep that Rule here.
In a passage that speaks directly to Kennedy’s animosity towards campaign finance regulations, he praises the important issue of campaign speech.
The interests here at issue are at the heart of the First Amendment. “[T]he First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (internal quotation marks omitted). And the Court has made it clear that “the right of citizens to band together in promoting among the electorate candidates who espouse their political views” is among the First Amendment’s most pressing concerns. Clingman v. Beaver, 544 U. S. 581, 586 (2005) (internal quotation marks omitted).
Kennedy also provides a little civics lesson about the importance of representation in our Republic.
As a general matter, citizens voice their support and lend their aid because they wish to confer the powers of public office on those whose positions correspond with their own. That dynamic, moreover, links the principles of participation and representation at the heart of our democratic government. Just as candidates announce positions in exchange for citizens’ votes, Brown v. Hartlage, 456 U. S. 45, 55–56 (1982), so too citizens offer endorsements, advertise their views, and assist political campaigns based upon bonds of common purpose. These are the mechanisms that sustain representative democracy.
Kennedy also distinguishes the recusal rules upheld in Caperton, which applied to the judiciary, to the very different role of the legislature.
The differences between the role of political bodies in formulating and enforcing public policy, on the one hand, and the role of courts in adjudicating individual disputes according to law, on the other, see ante, at 6, may call for a different understanding of the responsibilities attendant upon holders of those respective offices and of the legitimate restrictions that may be imposed upon them. For these reasons, the possibility that Carrigan was censured because he was thought to be beholden to a person who helped him win an election raises constitutional concerns of the first magnitude.
Justice Alito differs from the majority “insofar as it suggests that restrictions upon legislators’ voting are not restrictions upon legislators’ speech.”
Alito focuses on profiles in courage, in which legislators vote on controversial points, often at their own peril.
As respondent notes, “[o]ur history is rich with tales of legislators using their votes to express deeply held and highly unpopular views, often at great personal or political peril.” Brief for Respondent 23.To illustrate this point, respondent notes, among other famous incidents, John Quincy Adams’ vote in favor of the Embargo Act of 1807, a vote that is said to have cost him his Senate seat, and Sam Houston’s vote against the Kansas-Nebraska Act, a vote that was deeply unpopular in the South. Id., at 23–24 (citing J. Kennedy, Profiles in Courage 48, 109 (commemorative ed. 1991)).
Alito finds that “Voting has an expressive component in and of itself.” The Majority’s “strange understanding of the concept of speech is shown by its suggestion that the symbolic act of burning the American flag is speech but John Quincy Adams calling out “yea” on the Embargo Act was not.”
In the majority opinion, Justice Scalia disputes this argument in typical snarky fashion, finding that a single vote is not, and cannot be expressive conduct and symbolizes nothing.
Carrigan and JUSTICE ALITO say that legislators often“‘us[e] their votes to express deeply held and highly unpopular views, often at great personal or political peril.’” Post, at 1 (opinion concurring in part and concurring in judgment) (quoting Brief for Respondent 23). How do they express those deeply held views, one wonders? Do ballots contain a check-one-of-the-boxes attachment that will be displayed to the public, reading something like “( ) I have a deeply held view about this; ( ) this is probably desirable;( ) this is the least of the available evils; ( ) my personal view is the other way, but my constituents want this; ( ) my personal view is the other way, but my big contributors want this; ( ) I don’t have the slightest idea what this legislation does, but on my way in to vote the party Whip said vote ‘aye’”? There are, to be sure, instances where action conveys a symbolic meaning—such as the burning of a flag to convey disagreement with a country’s policies, see Texas v. Johnson, 491 U. S. 397, 406 (1989). But the act of voting symbolizes nothing. It discloses, to be sure, that the legislator wishes (for whatever reason) that the proposition on the floor be adopted, just as a physical assault discloses that the attacker dislikes the victim.
Specifically, Scalia writes that “However unpopular Adams’ vote may have made him, and however deeply Adams felt that his vote was the right thing to do, the act of voting was still nonsymbolic conduct engaged in for an independent governmental purpose.”
This mirrors his concurring opinion in Doe v. Reed: “(“I doubt whether signing a petition that has the effect of suspending a law fits within ‘the freedom of speech’ at all”).”
Alito calls out that the Court’s position is “inconsistent with our reasoning just last Term in Doe v. Reed.”
Just as the act of signing a petition is not deprived of its expressive character when the signature is given legal consequences, the act of voting is not drained of its expressive content when the vote has a legal effect.
Scalia disputes his interpretation of Doe v. Reed, and reads that precedent narrower than does Alito.
That case held only that acitizen’s signing of a petition—“‘core political speech,’” Meyer v. Grant, 486 U. S. 414, 421–422 (1988)—was not deprived of its protected status simply because, under state law, a petition that garnered a sufficient number of signatures would suspend the state law to which it pertained, pending a referendum. See Reed, 561 U. S., at ___ (slip op., at 6); id., at ___ (slip op., at 3) (opinion of SCALIA, J.). It is one thing to say that an inherently expressive act remains so despite its having governmental effect, but it is altogether another thing to say that a governmental act becomes expressive simply because the governmental actor wishes it to be so. We have never said the latter is true.
Alito only finds this law not unconstitutional because “legislative recusal rules were not regarded during the founding era as impermissible restrictions on freedom of speech.”