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Tuesday round-up

Today, the Court will hear oral arguments in Schwarzenegger v. Entertainment Merchants Association, described by CNBC as “by far the most important challenge – legal or otherwise – the video game history has faced.” The implications of the case go beyond a challenge to the industry, however: as Nina Totenberg writes for NPR, the willingness of the Court to hear this case suggests that the Court “may be ready to reconsider the way the First Amendment applies to depictions of violence, at least when sold to children.” The San Francisco Chronicle features an editorial supporting the law banning the sale of violent video games to children, calling it “sensible protection,” while Garrett Epps of The Atlantic contends that permitting the law will invite a deluge of other First Amendment exceptions. On CNN, Adam Sessler underscores that a law banning the sale of violent games to minors allows the government to decide what is appropriate for children, not parents (video via G4). Similarly, the First Amendment Center points to its new poll, finding that a “clear majority of Americans see parents having the most responsibility for deciding” the appropriateness of violent video games. Emily Bazelon of Slate writes that banning these games is “an ineffectual gesture that mostly misses the point.” The case has captured the attention of many, including Adam Cohen of Time, the Washington Post, and USA Today (video available), as well as the Los Angeles Times, the Kansas City Star, the San Jose Mercury News, The Escapist, and the WSJ Law Blog.

Though today’s oral arguments have certainly garnered significant coverage, so have yesterday’s decisions by the Court of what not to review. Courthouse News Service reports that the Court denied review of federal campaign finance disclosure rules just one day before today’s midterm elections. SpeechNow v. FEC, as Bloomberg details, concerned whether federal campaign finance disclosure rules violate the First Amendment rights of non-corporate advocacy groups. According to the Washington Post, this is the second time since the Court’s Citizens United v. Federal Election Commission decision that the Court has refused to review or clarify campaign finance issues. The Christian Science Monitor, The Hill, and CNN all have coverage. In a brief opinion piece at Cato@Liberty, John Samples discusses SpeechNow’s success despite the denial.

The Court also denied certiorari yesterday in Wong v. Smith, which explored whether a judge’s extensive commentary about evidence constitutes coercion of the jurors. Justice Alito issued a dissent joined by Chief Justice Roberts and Justice Scalia. The New York Times highlights Justice Alito’s statement that commentary by judges is “part of a long common-law tradition and should not be lightly disturbed by federal courts.” Other denials of certiorari include Anascape v. Nintendo, which the Associated Press describes as a patent infringement claim over joysticks and Nunchuk controllers. The Christian Science Monitor explores the denial of certiorari in Mayfield v. United States, which challenged whether an individual under surveillance has the right to sue when the government has kept documentation of this surveillance.

The Court did agree to hear an appeal in Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, which considers whether patents on inventions emerging from federally funded research belong to the university at which the invention was created. KQED News outlines the issue in a brief radio clip (available here), while Greg Stohr of Bloomberg, Inside Higher Ed, the San Francisco Chronicle, and Dow Jones Newswire (via NASDAQ) provide more detail. Lyle Denniston of this blog details the other cases granted review yesterday, including this Term’s second case concerning the rights of minors during police questioning. The School Law blog at Education Week and Courthouse News Service provide background on that case, J.D.B. v. North Carolina.

Finally, coverage of the Court’s November sitting continues with ACSblog’s coverage of the oral argument in Williamson v. Mazda Motor of America, which explores whether a common-law tort is preempted by the Federal Motor Vehicle Standard.


  • The Legal Pulse blog features a five-question interview on the OT2010 term with Thomas Goldstein (available here) and Glen Nager (available here).
  • Adam Liptak at the New York Times previews issues of grand jury secrecy that may be considered by the Court next week.
  • Appellate Daily publicizes Justice Breyer’s appearance at George Washington University Law School this Thursday.

Recommended Citation: Nabiha Syed, Tuesday round-up, SCOTUSblog (Nov. 2, 2010, 9:58 AM),