CHAPTER 22: WARRANTIES AND PRODUCT LIABILITY 381
at 1246;
Smith,
734 P.2d at 1054 (quoting
Jackson,
673 P.2d at 365).
[5] As such, strict products liability evolved to accommodate, and is driven by, public policy considerations surround-
ing the relationship between manufacturers and consumers in general, rather than any particular transaction or con-
tract for sale. In addition to the typical inaccessibility of information and inequality of bargaining power inherent in any
FN3. Restatement (Third) of Torts: Products Liability section 18 reads as follows: “Disclaimers and limitations
of remedies by product sellers or other distributors, waivers by product purchasers, and other similar contrac-
tual exculpations, oral or written, do not bar or reduce otherwise valid products liability claims against sellers
or other distributors of new products for harm to persons.”
There appears to be virtually universal agreement on this point among the other jurisdictions considering the ques-
and is void.
III.
Because the lower courts erred in applying the four-part test of
Jones
to a strict products liability claim and in finding
the exculpatory agreement in this case enforceable, the judgment of the court of appeals is reversed with directions to
remand for further proceedings consistent with this opinion.
382 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
Supplemental Case Printout for:
Insight into Ethics
C.A.9 (Cal.),2009.
Video Software Dealers Ass’n v. Schwarzenegger
556 F.3d 950, 09 Cal. Daily Op. Serv. 2020, 2009 Daily Journal D.A.R. 2441, 47 Communications
Reg. (P&F) 410
United States Court of Appeals,
Ninth Circuit.
VIDEO SOFTWARE DEALERS ASSOCIATION; Entertainment Software Association, Plaintiffs-
Appellees,
v.
Arnold SCHWARZENEGGER, in his official capacity as Governor State of California; Edmund G.
Brown, Jr., in his official capacity as Attorney General, State of California, Defendants-Appellants,
and
George Kennedy, in his official capacity as Santa Clara County District Attorney; Richard Doyle, in
his official capacity as City Attorney for the City of San Jose; Ann Miller Ravel, in her official ca-
FN1. Plaintiffs are associations of companies that create, publish, distribute, sell and/or rent video games, in-
cluding games that would be potentially regulated under the California statutory scheme at issue.
FN2. All references to “Civil Code” or “section 1746” refer to the California Civil Code unless otherwise indi-
(1968). Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the
State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest,
CHAPTER 22: WARRANTIES AND PRODUCT LIABILITY 383
and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the
FN3. During the legislative session, A.B. 1179 had been “gutted” and amended; the language in Assembly Bill
450 (“A.B.450”) replaced the original language in A.B. 1179.
FN4. The parties dispute whether the Act bans purchases or rentals by minors who are accompanied by their
parents. The Act does not speak to whether there is an exception for sales to minors accompanied by a par-
ent; it states only that it does not apply “if the violent video game is sold or rented to a minor by the minor’s
parent, grandparent, aunt, uncle, or legal guardian.” Cal. Civ.Code § 1746.1(c).
Central to this appeal, the Act defines a “violent video game” as follows:
FN5. The State concedes on appeal, consistent with the district court’s conclusion, that the alternate definition
of “violent video game” in section 1746(d)(1)(B) is unconstitutional because it “does not provide an exception
FN6. Section 1746(d)(2) includes the following definitions:
(A) “Cruel” means that the player intends to virtually inflict a high degree of pain by torture or serious physi-
cal abuse of the victim in addition to killing the victim.
(B) “Depraved” means that the player relishes the virtual killing or shows indifference to the suffering of the
FN7. Legislative materials in the record indicate that the Legislature used these terms in the Act because they
survived claims of unconstitutional vagueness in
United States v. Jones,
132 F.3d 232 (5th Cir.1998).
The Act also imposes a labeling requirement. It requires that each “violent video game” imported into or distributed in
California must “be labeled with a solid white ’18’ outlined in black,” which shall appear on the front face of the game’s
package and be “no less than 2 inches by 2 inches” in size.
Id.
at § 1746.2.
FN8. We note that the State’s videotape contains heavily edited selections of the violence that can be meted
out, but does not include any context or possible storyline within which the violence occurs.
The video game industry has in place a voluntary rating system to provide consumers and retailers information about
video game content. The Entertainment Software Rating Board (“ESRB”), an independent, self-regulated body estab-
lished by the Entertainment Software Association, rates the content of video games that are voluntarily submitted.
that it violated 42 U.S.C. § 1983 and the First and Fourteenth Amendments. Plaintiffs argued that the Act unconstitu-
tionally restricted freedom of expression on its face based on content regulation and the labeling requirement, was
unconstitutionally vague, and violated equal protection.
The district court granted Plaintiffs’ motion for a preliminary injunction.
Video Software Dealers Ass’n v.
Schwarzenegger,
401 F.Supp.2d 1034 (N.D.Cal.2005). Subsequently, the parties filed cross-motions for summary
1034, 1039 n. 3 (9th Cir.2008).
III.
[1] We first address Plaintiffs’ argument that the entire Act should be invalidated based on the State’s concession on
appeal that the alternate definition of “violent video game” found in section 1746(d)(1)(B) is unconstitutionally broad.
The State counters that the Act is saved by the severability clause in Civil Code § 1746.5, which states: “The provi-
(2005).
[3] Section 1746(d)(1)(B) is grammatically and functionally separable because, as an alternate definition of “violent
386 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
video game,” it can be removed from the Act without affecting the wording or function of the Act’s other provisions.
FN10. Although not argued by the parties, we note that deleting Civil Code § 1746(d)(1)(B) also appears to
require the deletion of sections 1746(d)(2) and (d)(3)-which define when a violent act is “cruel,” “depraved,” or
“heinous,” or involves “serious physical abuse” or “torture”-because these sections only relate to or explain
section 1746(d)(1)(B).
Sections 1746(d)(1)(B), (d)(2), and (d)(3) are also volitionally separable. We must ask whether the inclusion of these
cruel or depraved acts of violence.” Nonetheless, the record does not persuade us that sections 1746(d)(1)(B), (d)(2)
and (d)(3) were “critical” to the passage of the Act. The fact that the Legislature included an alternate definition for
“violent video game” designed to help the Act withstand a constitutional challenge does not necessarily indicate that it
would not have passed the Act but for the inclusion of these sections. Accordingly, in light of California’s presumption
in favor of retaining constitutional parts of statutes, we conclude that the Act is not wholly invalid as a result of the
tations omitted). The State does not contest that video games are a form of expression protected by the First
CHAPTER 22: WARRANTIES AND PRODUCT LIABILITY 387
Amendment.FN11
See Interactive Digital Software Ass’n v. St. Louis,
329 F.3d 954, 956-58 (8th Cir.2003) (holding that
“violent” video games are a protected form of speech);
Maleng,
325 F.Supp.2d at 1184-85 (same). It is also undisput-
ed that the Act seeks to restrict expression in video games based on its content.
See Ctr. for Bio-Ethical Reform, Inc.
FN11. The Supreme Court has not specifically commented on whether video games contain expressive con-
tent protected under the First Amendment; however, story-laden video games of the type potentially covered
under the Act are similar to movies, which the Court has long held are protected expression notwithstanding
their ability to entertain as well as inform.
See, e.g., Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495, 501-02, 72
S.Ct. 777, 96 L.Ed. 1098 (1952).
The State, however, urges us to depart from this framework because the Act concerns minors. It argues that we
should analyze the Act’s restrictions under what has been called the “variable obscenity” or “obscenity as to minors”
standard first mentioned in
Ginsberg,
390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195. In essence, the State argues that
the Court’s reasoning in
Ginsberg
that a state could prohibit the sale of sexually-explicit material to minors that it could
not ban from distribution to adults should be extended to materials containing violence. This presents an invitation to
1274.
FN12. The statute in
Ginsberg
used the defined term “harmful to minors,” which prohibited access by minors
when it: “(i) predominantly appeals to the prurient, shameful or morbid interest of minors, and [¶] (ii) is patent-
ly offensive to prevailing standards in the adult community as a whole with respect to what is suitable material
for minors, and [¶] (iii) is utterly without redeeming social importance for minors.”
Id.
at 646, 88 S.Ct. 1274.
The State suggests that the justifications underlying
Ginsberg
should apply to the regulation of violent content as well
1498 (1957) (discussing the nature of obscenity at length and stating, among other things, that “[o]bscene material is
material which deals with sex in a manner appealing to prurient interest.”). The
Ginsberg
Court applied a rational ba-
sis test to the statute at issue because it placed the magazines at issue within a sub-category of obscenity-obscenity
as to minors-that had been determined to be not protected by the First Amendment, and it did not create an entirely
new category of expression excepted from First Amendment protection. The State, in essence, asks us to create a
regulation of sexual and violent material, the Seventh Circuit discussed why “[v]iolence and obscenity are distinct cat-
egories of objectionable depiction,” explaining that obscenity is concerned with “offensiveness,” whereas ordinances
like the one at issue in
Kendrick
(and here) are concerned with conduct or harm. 244 F.3d 572, 574-75 (7th Cir.2001),
cert. denied,
534 U.S. 994, 122 S.Ct. 462, 151 L.Ed.2d 379 (2001).FN13 In
Video Software Dealers Association v.
Webster
, the Eighth Circuit held that videos “that contain[ ] violence but not depictions or descriptions of sexual con-
FN13. Citing one law review article, the State also urges us to redefine the First Amendment meaning of “ob-
scenity”-which involves material related to sex-by substituting an ordinary definition of obscenity based on its
Latin root. In
Maleng,
Judge Lasnik rejected the same argument. 325 F.Supp.2d at 1185. He explained that
the phrase “obscene material” was not inherently limited to sexually explicit material in the ordinary sense,
and that the Latin root “obscaenus” literally means “filth.”
Id.
Nonetheless, he held, relying on
Miller,
413 U.S.
FN14. We also reject the State’s more general request that we equate violent content with unprotected “ob-
scenity.” As the discussion above indicates, the Court’s obscenity jurisprudence limits obscene materials to
1878. Further, “[i]f a less restrictive alternative would serve the Government’s purpose, the legislature must use that
alternative.”
Id.
A.
FN15. Throughout this litigation, the parties have disagreed as to what extent
Brandenburg v. Ohio,
395 U.S.
444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam), applies to this case. The dispute stems from the fact
that one of the compelling interests advanced by the Legislature is the prevention of “violent, aggressive, and
antisocial behavior.” One of the Legislature’s findings was that “[e]xposing minors to depictions of violence in
video games … makes those minors more likely … to exhibit violent antisocial or aggressive behavior.” How-
v. Swanson,
519 F.3d 768, 771 (8th Cir.2008);
Interactive Digital Software Ass’n,
329 F.3d at 958;
Nunez by Nunez v.
390 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
City of San Diego,
114 F.3d 935, 944 (9th Cir.1997);
Maleng,
325 F.Supp.2d at 1186-87. Notwithstanding*962 this
abstract compelling interest, when the government seeks to restrict speech “[i]t must demonstrate that the recited
harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material
The Supreme Court has warned that the
government cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.
First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws
for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the
government because speech is the beginning of thought.
government may not restrict speech in order to control a minor’s thoughts, we focus on the State’s psychological harm
rationale in terms of some actual effect on minors’ psychological health.
[6] Whether the State’s interest in preventing psychological or neurological harm to minors is legally compelling de-
pends on the evidence the State proffers of the effect of video games on minors. Although the Legislature is entitled
to some deference, the courts are required to review whether the Legislature has drawn reasonable inferences from
harm rationale.FN17 First, Dr. Anderson remarks on the relative paucity of the video game literature and concedes that
the violent video game literature is not sufficiently large to conduct a detailed meta-analysis of the specific methodo-
logical features of other studies, many of which were themselves flawed. Second, he further states that “[t]here is not
CHAPTER 22: WARRANTIES AND PRODUCT LIABILITY 391
a large enough body of samples … for truly sensitive tests of potential age difference in susceptibility to violent video
FN16. Meta-analysis is “a quantitative method for integrating existing studies” where “statistical procedures
FN17. Dr. Anderson’s hearing testimony in the
Blagojevich
case, which is in the record, contains his assent to
the statements that there is probably an “infinite” number of stimuli that could cause aggression or aggressive
thoughts in a person (e.g., a picture of a gun), and that his selection of violent video games was “largely a
1063.
FN18. The State also relies on a 2003 study on general media violence by Dr. Anderson, which contains a
three-page section on violent video games and reflects the conclusions and shortfalls of the 2004 meta-
analysis. Craig A. Anderson et al.,
The Influence of Media Violence on Youth,
4 PSYCHOLOGICAL
SCIENCE IN THE PUBLIC INTEREST 81, 90-93 (2003). For example, the study states that “[t]here are no
published longitudinal surveys specifically focusing on effects of violent video games on aggression.”
The State also relies on a study of the effects of video game violence on adolescents, conducted by Dr. Douglas Gen-
tile, which studied eighth and ninth graders and concluded that “[a]dolescents who expose themselves to greater
amounts of video game violence were more hostile” and *964 reported getting into more arguments and fights and
performing poorly in school. Douglas A. Gentile et al.,
The effects of violent video game habits on adolescent hostility,
aggressive behaviors, and school performance,
27 J. ADOLESCENCE 5 (2004). The extent to which this study sup-
ports the State’s position is suspect for similar reasons as Dr. Anderson’s work. First, this study states that due to its
“correlational nature” it could not directly answer the following question: “Are young adolescents more hostile and ag-
gressive because they expose themselves to media violence, or do previously hostile adolescents prefer violent me-
dia?” Second, this study largely relates to the player’s violent or aggressive behavior toward others-which, as noted
above, is not the interest relied on by the State here-rather than the psychological or neurological harm to the player.
Moreover, the study glaringly states that “[i]t is important to note … that this study is limited by its correlational nature.
Inferences about causal direction should be viewed with caution
” (emphasis added). Finally, Dr. Gentile’s study sug-
gests that “[a]dditional experimental and longitudinal research is needed.”
Additionally, the State relies on a study by Dr. Jeanne Funk for the proposition that video games can lead to desensi-
tization to violence in minors. Jeanne B. Funk et al.,
Violence exposure in real-life, video games, television, movies,
and the internet: is there desensitization?,
27 J. ADOLESCENCE 23 (2004). Like the others, this study presents only
392 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
In sum, the evidence presented by the State does not support the Legislature’s purported interest in preventing psy-
chological or neurological harm. Nearly all of the research is based on correlation, not evidence of causation, and
most of the studies suffer from significant, admitted flaws in methodology as they relate to the State’s claimed interest.
None of the research establishes or suggests a causal link between minors playing violent video games and actual
psychological or neurological harm, and inferences to that effect would not be reasonable. In fact, some of the studies
caution against inferring causation. Although we do not require the State to demonstrate a “scientific certainty,” the
State must come forward with more than it has. As a result, the State has not met its burden to demonstrate a com-
pelling interest.
B.
[7] Even if we assume that the State demonstrated a compelling interest in preventing psychological or neurological
Further, the State does not acknowledge the possibility that an enhanced education campaign about the ESRB rating
Even assuming that the State’s interests in enacting the Act are sufficient, the State has not demonstrated why less
restrictive means would not forward its interests. The Act, therefore, is not narrowly tailored. Based on the foregoing,
and in light of the presumptive invalidity of content-based restrictions, we conclude that the Act fails under strict scru-
tiny review.
VI.
[8] Finally, we evaluate the constitutionality of the Act’s labeling provision, which requires that the front side of the
FN19. Heightened scrutiny may apply, however, if the commercial speech is “inextricably intertwined” with
otherwise fully-protected speech, e.g., political speech, charitable solicitations.
Riley,
487 U.S. at 796, 108
S.Ct. 2667;
Cal-Almond, Inc. v. U.S. Dep’t of Agric.,
14 F.3d 429, 436 (9th Cir.1993).
Ordinarily, we would initially decide whether video game packaging constitutes separable commercial speech or
FN20. We note that on similar facts, the Seventh Circuit, in
Entertainment Software Association v. Blago-
jevich,
struck down a statute’s requirement that video game retailers affix a four square-inch sticker reading
“18” on any video game the state defined as “sexually explicit.” 469 F.3d 641, 651-52 (7th Cir.2006). The
court applied strict scrutiny because, in its view, the label did not concern the disclosure of “purely factual” in-
formation-the label reflected the state’s opinion that the product contained material that the state deemed
old for the purchase or rental of video games, there is no chance for deception based on the possibly conflicting
ESRB rating labels. In fact, the State’s mandated label would arguably now convey a false statement that certain
conduct is illegal when it is not, and the State has no legitimate reason to force retailers to affix false information on
their products.
See Hatch,
443 F.Supp.2d at 1072,
aff’d on other grounds, Swanson,
519 F.3d 768.
VII.