by The Supreme Court has been busy addressing issues that have been characterized as pollution yet which were far from the minds of the writers of our standard environmental laws. The Court just granted certiorari in Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009), which struck down a California statute regulating the sale of violent video games to minors. Violent entertainment has often been described as cultural pollution, especially in the aftermath of the Columbine High School massacre in 1999. Duke political scientist James Hamilton’s book “Channeling Violence” presents a sophisticated analysis of violent entertainment as a problem of toxic wastes. Yet the courts have uniformly rejected any effort to regulate such cultural pollution, even as it affects minors.
This week the Court also heard oral argument in Geertson Seed Farms v. Johanns, 541 F.3d 938 (9th Cir. 2008), which enjoined Monsanto from selling geneticially modified alfalfa pending an enviornmental impact statement studying the effects of such genetically modified organisms (GMOs) on ordinary alfalfa. This will be the first time that the Court has decided a case involving GMOs. The Supreme Court almost always reverses the Ninth Circuit in environmental cases, and the oral argument indicated that another reversal is likely in this case.
And earlier this term, the Court’s Citizen United decision struck down efforts to regulate campaign spending, another problem that has been analogize to pollution by former D.C. Circuit Judge Skelly Wright and by, well, me (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969717). This decision has been quite controversial, but like the violent video game jurisprudence, it reflects a robust undersanding of the first amendment.
The violent video game, GMO, and campaign spending cases involve different legal regimes, but they share one thing in common: the Court is likely to block the government’s efforts to control what has been described as pollution. Generally, pollution regulation seeks to maintain an environment that is free from unwanted influences. Hostile work environments, lights and noises, and pornography are other common targets of pollution complaints. The law responds to all of these unwanted influences in many different ways, which properly reflects the distinct harms and environments that they affect. But there are more similarities between pollution claims than we typically recognize, so perhaps the Court’s decision in the violent video game and GMO cases will begin to appreciate those similarities.
Fascinating post, John. If I can engage in a little shameless self-promotion, I’ve also written on the notion of “cultural pollution” in connection with Internet policy: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1091024
It’s an interesting question for “cyberlaw” people because the metaphor of a “cultural environment” is often employed to describe “cyberspace,” and much of the scholarship is devoted to “conserving” this space. However, nobody — nobody — talks about “pollution,” even concerning things almost everyone agrees are bad, such as child porn.