Example 9.1
Takeaway point 9.1: Emphasize that the other side’s position is harmful or that your client’s position is beneficial or, at least, harmless.
Judges are often influenced by outcomes.
Many judges will resist the cold, grey tug of the law if it would lead to drastic consequences. Therefore, you will sometimes want to show — without hysterics — that the other side’s position would lead to grave results. Or, when your client’s position is alleged to pose grave risks, you need to tamp down the rhetoric and show that the consequences are actually beneficial, or at worst, minimal.To demonstrate this principle, let’s take a look at a dispute that arose after California enacted a law that prohibited anyone from selling violent video games to minors. Video-game sellers and manufacturers challenged the law. In response, California relied on a doctrine that enables states to restrict the sale of sexual material to children, even when adults have a First Amendment right to acquire those materials. California argued that it had a comparable interest in protecting children from violent content. Here, the trade group uses policy arguments to counter California’s position.
Source: Brief of video-game industry in Brown v. Entertainment Merchants’ Ass’n, 131 S. Ct. 2729 (2011) (some citations omitted).
This brief draws a line between sexual content and violent content. The following paragraphs appear to reply to California’s doctrinal argument, but they actually carry a policy argument — that California has drawn an arbitrary line by allowing children to access some violent content (books and movies), but not other violent content (video games). We look more closely at line-drawing policy arguments later in this chapter.
WARNING! The term “children’s literature” does not foreshadow that the brief will also describe examples from movies. This phrase should more accurately foretell the sorts of examples that will follow, just as a topic sentence should foretell exactly what will be discussed in a given paragraph.
The lawyers use creative, well-known examples to advance their point. In general, avoid piling on examples; however, in some instances (such as if the other side heaped examples on the court or claimed that something never happened), you might want to cite numerous illustrations. Here, the number suffices to convey the point. Your key challenge is to make your examples look representative, not anecdotal.
Instead of listing children’s books and then children’s movies, the examples could have shown that children often read or watch the exact content banned by the challenged law, such as in this example: “California barred children from acquiring games in which any character is decapitated; but children can freely acquire the Bible, in which David decapitated Goliath (1 Samuel 17).” The brief then could have provided a similar example for each type of violent act that California’s law banned. Examples often are most effective when they track the exact law or provision that is being disputed. Even so, these examples reflect excellent advocacy.
The brief interrupts its policy discussion by making a double-barreled doctrinal point: that the Court had recently opined that it would not create new categories of unprotected speech and that California’s law impermissibly distinguishes between violent video games and other violent content that children read or watch.
The brief rebuts California’s attempt to show that it has a strong interest in protecting children from violence. Showing that a law is harmful or ineffective can persuade judges.