If the same law is struck down enough times, shouldn’t it be considered presumptively unconstitutional at some point? Shouldn’t the burden of proof be on every grandstanding politician who proposes such a bill — before it gets voted on in committee or signed into law?
I ask because another law trying to restrict the sale of violent video games has been ruled unconstitutional, this time in Michigan. I recently wrote an essay detailing why these laws are doomed to fail, and the Eastern District Court of Michigan ruling follows the template perfectly:
Video games are a form of creative expression that are constitutionally protected under the First Amendment. … Despite the fact that some of these games are likely to be considered ‘disgusting or degrading’ by certain people, neither the Supreme Court nor Sixth Circuit has ever applied the Ginsberg test [which says material can be considered obscene for kids — and therefore be restricted — even if it’s not obscene for adults] in cases that don’t involve sexually explicit material. … Dr. Anderson’s studies have not provided any evidence that the relationship between violent video games and aggressive behavior exists. His tests fail to prove that ‘video games have ever caused anyone to commit a violent act, as opposed to feeling aggressive, or have caused the average level of violence to increase anywhere.’ … While the State claims to try to protect the physical and psychological well-being of minors as well as prevent violent and asocial behavior, the Act fails to regulate other comparable forms of violent media from minors.
It’s over. Game laws are unconstitutional. Deal with it, and move on to the next pop culture demon.
— April 4, 2006