Video Software Dealers Association et al v. Schwarzenegger et al Doc.

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Case 5:05-cv-04188-RMW Document 59 Filed 02/01/2006 Page 1 of 6

1 GOODIN, MACBRIDE, SQUERI, RITCHIE & DAY, LLP

ROBERT A. GOODIN, State Bar No. 061302
2 FRANCINE T. RADFORD, State Bar No. 168269
3 505 Sansome Street, Suite 900
San Francisco, California 94111
4 Telephone: (415) 392-7900
Facsimile: (415) 398-4321
5
PILLSBURY WINTHROP SHAW PITTMAN LLP
6 THOMAS V. LORAN III, State Bar No. 95255
7 JOANNE H. KIM, State Bar No. 221525
50 Fremont Street
8 Post Office Box 7880
San Francisco, CA 94120-7880
9 Telephone: (415) 983-1000
Facsimile: (415) 983-1200
10

11 Attorneys for Common Sense Media

12 UNITED STATES DISTRICT COURT

13 NORTHERN DISTRICT OF CALIFORNIA

14 SAN JOSE DIVISION

15 VIDEO SOFTWARE DEALERS and No. C 05 4188 RMW RS

ENTERTAINMENT SOFTWARE
16 ASSOCIATION, APPLICATION OF COMMON SENSE
MEDIA FOR LEAVE TO
17 Plaintiffs, PARTICIPATE IN ACTION AS
AMICUS CURIAE
18 v.
19 Date: March 10, 2006
ARNOLD SCHWARZENEGGER, in his Time: 9:00 a.m.
20 official capacity as Governor of the State of Honorable Ronald M. Whyte
California; BILL LOCKYER, in his official
21 capacity as Attorney General of the State of Date of Filing: No Date Set
California; GEORGE KENNEDY, in his
22 official capacity as Santa Clara County
District Attorney; RICHARD DOYLE, in his
23
official capacity as City Attorney for the City
24 of San Jose, and ANN MILLER RAVEL, in
her official capacity as County Counsel for
25 the County of Santa Clara.

26 Defendants.
27

28
Case No. C 05 4188 RMW RS
Application of Common Sense Media for Leave to Participate in Action as Amicus Curiae

Dockets.Justia.com
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1 I. INTRODUCTION

2 By this application, Common Sense Media, a nationally-recognized not-for-profit

3 organization with over 3 million users, seeks leave to participate in this action as amicus curiae.

4 Common Sense Media possesses unique expertise on issues concerning electronic entertainment

5 media and its social, economic and physical impacts on children, as well as parental involvement

6 in children’s media experiences.

7 II. FACTS

8 Common Sense Media is the leading non-partisan, not-for-profit organization1

9 dedicated to improving media and entertainment choices for children and families. As reflected in

10 its name, the organization’s mission is “sanity, not censorship.” Common Sense Media strives to

11 provide unbiased and trustworthy information, practical tools, and respected policy leadership to

12 create a healthier media environment for children and families. Launched in May 2003, Common

13 Sense Media now helps well over 3 million parents, educators, caregivers, and young people a

14 better basis to make better-informed decisions about today’s media. This is accomplished

15 through preparing and publishing detailed reviews, ratings, recommended lists, and viewing tips

16 on movies, TV, music, video games, websites, and books. The organization has reviewed nearly

17 5,000 titles based on the latest research on child development, and we review and analyze all the

18 leading video game titles from a kids and family perspective. Adult and child visitors to its

19 website also contribute reviews. The website posts daily updates on the most recent media

20 releases, as well as important news and research, and emails a weekly newsletter. In the

21 community, Common Sense gives seminars and workshops on media literacy and awareness

22 around California and the country, produces training kits and materials for use and dissemination

23 by national organizations, local groups, and concerned individuals, and maintains a non-partisan,

24 public leadership role on selected issues that affect media’s impact on children and youth. In

25 addition, Common Sense works with many of the nation’s leading public health researchers – in

26 California and across the country – to carefully examine the impact of various forms of media,

27
1
The organization is funded primarily by philanthropic contributions from individual donors and
28 leading national foundations.
1. Case No. C 05 4188 RMW RS
Application of Common Sense Media for Leave to Participate in Action as Amicus Curiae
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1 including video games, on young people. In that role, Common Sense was the lead sponsor of

2 AB 1179, the passage of which created the statute at issue here. Because of its work with and for

3 the parents and educators of children and youth in connection with issues related to media,

4 Common Sense is uniquely qualified to speak to the interests of parents in this case.

5 Common Sense is managed by a team of experts in child advocacy, public policy,

6 education, technology, media, and public health, and is supported by a highly distinguished Board

7 of Directors and Board of Advisors. It is headquartered in the Bay Area, but conducts outreach

8 efforts throughout the state In particular, James P. Steyer, its CEO and founder, has been a leader

9 in children’s media issues for over twenty-five years.2 Mr. Steyer founded Children Now, a
10 leading national advocacy and media organization for children, as well as JP Kids, a successful
11 and respected family media company. A long-time faculty member teaching civil rights and civil
12 liberties at Stanford University for the past twenty years, he is also the author of the widely
13 acclaimed book, The Other Parent: The Inside Story of the Media's Effect on Our Children. Mr.
14 Steyer is familiar with the work of the leading experts in the field and the research that has been
15 performed on the topic of the media’s impact on children in the last twenty years. He is familiar
16 not only with the work of the researchers cited by the parties to this case, but is also familiar with
17 the work of numerous other highly qualified experts whose work has not been cited or discussed
18 by either side.
19 Through its work in California and across the country, Common Sense is also
20 well-acquainted with the broad spectrum of video games available for purchase by young people

21 today. Common Sense is uniquely positioned to comment on this issue because it has a wealth of

22 experience with the newest video game titles. Common Sense reviewers try out the latest video

23 game titles and post their ratings on the organization’s Web site each week. Nearly 300 of the

24 newest generation titles have been reviewed by Common Sense staff members. In addition, there

25 are many hundreds or reviews posted by parents, educators and young people familiar with the

26 video games at issue here.

27
2
Mr. Steyer’s curriculum vitae is attached as Exhibit A to his declaration accompanying this
28 application.
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1 III. LEGAL STANDARDS

2 “The privilege of being heard amicus rests solely within the discretion of the court

3 . . . Generally, courts have exercised great liberality in permitting an amicus curiae to file a brief

4 in a pending case, and, with further permission of the court, to argue the case and introduce

5 evidence . . . There are no strict prerequisites that must be established prior to qualifying for

6 amicus status; an individual seeking to appear as amicus must merely make a showing that his

7 participation is useful to or otherwise desirable to the court.” In re Roxford Foods Litigation., 790

8 F. Supp. 987, 997 (E.D.Cal. 1991)(citation omitted). Various factors considered by courts in

9 determining whether to grant amicus status to a party include the serious nature of the issues

10 involved (Neeley v. Century Finance Co., 606 F. Supp. 1453, 1457 (D. Ariz. 1985)); whether the

11 party has been involved in the events leading to this case and its interest in the issue (Sonoma

12 Falls Developers, L.L.C. v. Nev. Gold & Casinos, Inc., 272 F. Supp. 2d 919, 925 (N.D. Cal.

13 2003)); and whether the party can “assist[] in a case of general public interest, supplementi[] the

14 efforts of counsel, and draw[] the court's attention to law that escaped consideration.” Miller-

15 Wohl Co. v. Commissioner of Labor & Industry, 694 F.2d 203, 204 (9th Cir. 1982)(citations

16 omitted). Thus, “[d]istrict courts frequently welcome amicus briefs from non-parties concerning

17 legal issues that have potential ramifications beyond the parties directly involved or if the amicus

18 has unique information or perspective that can help the court beyond the help that the lawyers for

19 the parties are able to provide.” Sonoma Falls Developers, supra., 272 F. Supp. 2d at 925

20 (citations and internal quotations omitted).

21 IV. ANALYSIS: COMMON SENSE CAN ASSIST THE COURT THROUGH ITS
EXPERTISE IN THE INTERESTS OF PARENTS WITH RESPECT TO VIDEO
22 GAME PURCHASES BY CHILDREN AND ITS EXPERTISE IN THE EFFECTS
OF ULTRA-VIOLENT VIDEO GAMES ON CHILDREN
23

24 Applying the factors discussed by the courts in deciding applications for leave to

25 participate in pending actions as amicus curiae, we note the following. First, the issues involved

26 in this action, which balance First Amendment rights of children against the interests of the

27 public, including their parents, in protecting children from harm, are unquestionably serious. Cf.

28 Neeley v. Century Finance Co., 606 F. Supp. 1453, supra (deciding a constitutional question).
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1 Second, Common Sense Media has had central involvement in the events leading to this case:

2 Common Sense was a co-sponsor of AB 1179, the passage of which resulted in the statute at issue

3 here. In background memos on both the relevant public health research and parental attitudes

4 which were most central to the video game legislation, Common Sense worked with the Governor

5 and legislators from both parties to explain all aspects of the bill. In addition, Common Sense also

6 worked with a number of the nation’s leading 1st Amendment and Constitutional law scholars to

7 help draft the bill.

8 Third, and perhaps most importantly, Common Sense has unique information and

9 perspective that will aid the court in resolving this case. Common Sense, through its Board of
10 Directors, Board of Advisors and management team, is extremely knowledgeable about social
11 and psychological research concerning the impact of ultra-violent media on youth that has not
12 previously been cited or analyzed by the parties. As stated in Mr. Steyer’s accompanying
13 declaration, he is abreast of the most current research and most highly qualified experts in this
14 field and will be able to assist the court in providing relevant, helpful information concerning the
15 effects of violent video games on young people. Of particular importance is the fact that Mr.
16 Steyer has access to experts other than those that have been cited in the moving and opposing
17 papers submitted to the court in connection with prior proceedings.
18 Finally, Common Sense Media has a loyal user base of over 3 million people.
19 Common Sense interacts on a weekly basis with thousands of its members through emailed
20 newsletters and website reviews and commentary, as well as in person through the training and

21 workshops Common Sense conducts. Through its work, Common Sense has become intimately

22 familiar with the growing interest of parents in guiding, overseeing and being knowledgeable

23 about their children’s experiences with extremely violent images. These parental interests are

24 plainly implicated by the issues presented herein. Not only are the interests of Common Sense’s

25 members distinct from those represented by the plaintiffs, whose members produce and market

26 the video games being regulated, but the interests of Common Sense’s members are more

27 particularized and therefore different from the general societal interest of the public, which is

28 represented by the defendants in this action. The ramifications of this case directly impact the
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1 members of Common Sense and the heart of those members’ interests. Cf. Sonoma Falls

2 Developers, supra (amicus status granted where issues in case have potential ramifications

3 beyond the parties directly involved). Based on all the relevant factors, the participation of

4 Common Sense Media as amicus curiae in this action is appropriate.

5 V. CONCLUSION
6 For the foregoing reasons, the application of Common Sense Media for leave to

7 participate in this litigation as amicus curiae should be granted.

8 Dated: February 1, 2006 Respectfully submitted,

9 GOODIN, MACBRIDE, SQUERI,
RITCHIE & DAY, LLP
10 Robert A. Goodin
Francine T. Radford
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By /s/Francine T. Radford
13 Francine T. Radford
Attorneys for Common Sense Media
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