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Legal Update: Crosses, Videogames And Paper V. Plastic


A surprising number of California legal cases have been accepted by the US Supreme Court lately. We'll be talking about two of them, including one that centers on a controversial war-memorial cross with similarities to the cross on Mt. Soledad. Here to discuss all these interesting cases is These Days legal analyst Dan Eaton.

MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. Just yesterday, the U.S. Supreme Court said it will not hear an appeal by the Boy Scouts over leases in Balboa Park. But a surprising number of California legal cases have been accepted by the high court lately. We'll be talking about two of them, including one about a controversial war memorial cross with similarities to Mt. Soledad. We'll also talk about the California paper versus plastic lawsuit. But first, the U.S. Supreme Court has decided to hear a challenge to California's videogame labeling law. Here to discuss all these interesting cases is These Days legal analyst Dan Eaton. Good morning, Dan.

DAN EATON (KPBS Legal Analyst): Good morning, Maureen. And when you gave your opening, of course, there were several other cases that we could have talked about that are California-based, too. There was one day, in fact, in recent weeks where both cases on the court’s calendar were California-based, and we’re not talking about either one of those but wait until the decision comes out. But let’s talk about the videogame…


EATON: …labeling case because it does affect so many people.

CAVANAUGH: They want to spend such quality time with California cases.

EATON: They do. They want to spend some time on the coast. So, yeah, well, what happened was here, this was a California law that was signed by Governor Schwarzenegger back in 2005 and it said, look, you cannot sell what were called, quote, violent videogames, closed quote, to those under 18 and subjected them to all kinds of penalties, a thousand dollars per offense. And a lot of these videogames sell in great numbers. It also required that there be a label, two inches by two inches in size, Maureen, that said that said – that had a solid white ‘18’ with a black border around it to make it clear that this is one of those. The Act served the compelling purpose, according to the text of the law, quote, of preventing violent, aggressive, and antisocial behavior, closed quote, and preventing psychological or neurological harm by those under 18 who use them. Violent videogames, by the way, was defined as any videogame that enables the player himself to kill, maim, dismember or sexually assault a depiction of a human being. And among other things that a reasonable person would find, quote, appeals to a deviant or morbid interest in minors or of minors, closed quote. So this is – these are kind of these awful, well, these very graphic videogames.


EATON: I don’t want to judge them or anything.

CAVANAUGH: Certainly. Yes, I think we know what we’re talking about. Now the Ninth Circuit Court of Appeals, though, has already ruled that this labeling law violates free speech rights. Why is that?

EATON: They did, right. And the Ninth Circuit said this is a content-based restriction on speech, so we’re going to subject it to the highest possible level of examination. The government really has to produce the goods to prove that they can do this. And what the Ninth Circuit said was, you know what, the studies that you are pointing out show that there is a correlation between, that is that there is some relationship between violent acts and the exposure to these videogames but there’s no evidence critically of, quote, of causation of these acts. They said, look, they just – you haven’t shown enough that show that these games cause any actual psychological or neurological harm. And because the free speech rights go broadly, you cannot be allowed to impose these kind of restrictions on the sale of violent games. It restricts the minor’s right to receive this speech.

CAVANAUGH: I understand, so – But why did the Supreme Court then, do we think, agree to review this case. Do we have any idea?

EATON: And who knows? I mean, the Supreme Court typically doesn’t explain in any way, shape or form why they agreed to review it. It could be, Maureen, that they want to reinforce the rather broad First Amendment rights that they recognized in an eight-to-one decision, remember, overturning a law that would restrict animal cruelty…


EATON: …videos.

CAVANAUGH: That was just recently.

EATON: These crush videos. Very recently. Within the last couple of weeks, an eight-to-one ruling, and also, of course, there was the five-to-four Citizens United case that broadly – that broadly said that corporations, for example, couldn’t be restricted to a certain extent on independent expenditures in campaigns. It could be also, though, Maureen, that they really want to make a distinction between laws that apply to the general population and laws that apply to children. The…



CAVANAUGH: Sorry to interrupt you.

EATON: No, no.

CAVANAUGH: One legal journalist, since we’re speculating here, thinks this case may result in a shift in thinking about the social engineering and its affect on free speech.

EATON: Well, that’s what she called it, right. The prominent journalist, of course, to whom you’re referring is former New York Times Supreme Court reporter Linda Greenhouse, who said in a column just this past weekend that she was baffled by the fact that the Supreme Court took the case and was concerned that some of the justices might actually agree that this videogame law passes constitutional scrutiny. But there is case law in the Supreme Court history, and fairly recent history, in fact, where the court has approved broader restrictions on what a child can say and to what a child can be exposed than those that are approved for the general population. So it’ll be very interesting to see how this case comes out with, let’s not forget, a new justice when it’s argued sometime in the fall.

CAVANAUGH: Absolutely. So when will we get a better idea of what led the justices to accept and review this case?

EATON: When we have oral argument. I sometimes report immediately after oral argument on these cases and, as regular listeners to the segment know, Maureen, you get clues as to what’s really on the justices’ mind (sic), why they took the case, how they are leaning in a particular decision, so when this case is argued in the fall, we’ll have a better idea of where they’re leaning and what sparked their attention to accept review of this case.

CAVANAUGH: Okay, another California case, a recent decision of the U.S. Supreme Court about a cross in the Mojave Desert might have an impact on the Mt. Soledad cross here in San Diego.

EATON: Right. Let’s be clear. The Mt. Soledad appeal of Judge Burns’ ruling saying essentially that the cross could stay is on appeal to the Ninth Circuit Court of Appeals. What does this Mojave case have to do with that? The Mojave cross was an eight foot tall cross, a Latin cross like the one at Mt. Soledad, that was – that is put in the middle of the desert, that was erected to honor the dead, the fallen of World War I. The government transferred that land to the private organization, the Veterans of Foreign Wars, Congress did that. And the question was whether that was a – whether the federal government constitutionally could transfer that land or whether the cross had to come down.

CAVANAUGH: And so it does sound similar to the battle…

EATON: Umm-hmm.

CAVANAUGH: …over the Mt. Soledad cross. So what did the Supreme Court decide in the Mojave case?

EATON: Justice – Justice Kennedy, writing for a very fractured court actually, said – said essentially with the agreement of four other justices in the judgment that, look, the cross – the transfer of the land did not, on its face, at least, violate the Constitution’s establishment clause and, therefore, that the district court had to look, the federal trial court, had to look at relief other than invalidating the congressional law as an evasion of the court’s original order to bring the cross down, and look at other alternatives to actually invalidating the law. And the language that Justice Kennedy used about the Latin cross has particular relevance to our Mt. Soledad cross because he said, quote, a Latin cross, which, remember, is the same kind of cross, the one with the, for want of a better term, openings in it in the staffs.


EATON: Quote, a Latin cross is not merely a reaffirmation of Christians’ belief, it is a symbol often used to honor and respect those whose heroic acts, noble contributions and patient striving help secure an honored place in history for this nation and its people. Here, one Latin cross in the desert evokes more than religion, it evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten, closed quote, actually writing very poetically.

CAVANAUGH: And so who knew there were so many of these war memorial crosses in California? What is the effect of the ruling? Is the litigation over and nothing further happens to the cross in the Mojave Desert?

EATON: No, it – As I mentioned, it does go back to the district court to consider possible alternatives to invalidating the congressional law. Look, the Federal Trial Court thought that Congress passed this law just to get around the court’s original order ordering it to come down. The Supreme Court said, no, we don’t think you need to be so skeptical about what the Congress was doing, you need to take another look at it. So if the man challenging this cross continues his fight, Justice Kennedy and the four other members of the court said you need to take a better look at maybe possible other ways of meeting the potential problem such as erecting signs and so on about its true ownership by the VFW.

CAVANAUGH: Now there was a dissenting opinion. In fact, retiring Justice John Paul Stevens wrote a dissent. What was his reasoning?

EATON: Well, he said that he viewed the particular cross as a starkly – that it sends a starkly sectarian message. He said that he wasn’t against the establishment of an honor in favor of World War I veterans but, quote, this solitary cross in the middle of the desert makes it ‘the’ national World War I Memorial because there are no other World War I memorials that Congress has established. Congress’ decision to, quote, preserve a solitary Latin cross at an isolated location in the desert as a memorial for those who fought and died in World War I not only failed to cure the establishment clause violation by the original cross but also, in my view, resulted in a dramatically inadequate and inappropriate tribute, closed quote. That’s what Justice Stevens said.

CAVANAUGH: Now this poetic language, as you said, used by Justice Kennedy, does that actually strengthen the opinion that Mt. – the cross on Mt. Soledad should remain there?

EATON: It actually does. Remember, the judge, Larry Burns, federal trial judge here in San Diego, Larry Burns, ruled that the cross could stay and he said that the erection of the cross, because it, quote, communicates a primarily nonreligious message of military service, death and sacrifice, closed quote, sounds a lot like what Justice Kennedy said…


EATON: …it did not offend the Constitution’s establishment clause. There is one important distinction that may not help this here and that is that the Mojave cross was on private land per what Congress did. Actually the war memorial here, the Mt. Soledad cross, is on land that was transferred to the U.S. Department of Defense. So the question still remains whether the cross can stand on federal land. But Justice Kennedy’s opinion about what a Latin cross symbolizes can go a long way to strengthen the hands of those who want the cross to remain, Maureen.

CAVANAUGH: Now we move on to an environmental flap that’s quite interesting. The Cal…

EATON: Something we encounter on a daily basis, Maureen.

CAVANAUGH: On a daily basis, paper or plastic. The California Supreme Court is getting involved in this debate. The court will decide if cities have to conduct a full scale environmental impact study before they ban plastic grocery bags. Where does the case originate?

EATON: This is a very big – Well, it’s a very big case because so many people care about these…


EATON: …issues. But this is a case out of the large and thriving metropolis of Manhattan Beach in Los Angeles County, a city with a population, according to the 2000 census, of just under 34,000 people. And they said, you know what, we took a quick look, as required under the California Environmental Quality Act, about the environmental impact of banning plastic bags, which they say they think is going to harm the marine mammal – the marine population in that coastal city. And they said, no, we’re going to ban the use of – the distribution of plastic bags by, for example, grocery stores and big retailers such as Target. They only have 217 such establishments where this point of sale ban would even apply. And an interesting coalition called Save the Plastic Bags Coalition sued to block the enactment of this ordiance. And, you know what, a full dress environmental impact report is required, a much more expensive undertaking.

CAVANAUGH: Now how did the lower courts rule on this lawsuit?

EATON: The lower court, the Court of Appeal, the lower Court of Appeal ruled two-to-one that a full-on environmental study was actually required, and that is because California law requires this full-on environmental impact study if, quote, it can be fairly argued on the basis of substantial evidence that the project, an ordinance in this case, quote, may have an significant environmental impact, closed quote. And basically what the Court of Appeals said is, look, that’s a fairly low test that you can make. The Plastic Bag Coalition, consisting of a group of plastic bag manufacturers, had produced evidence that the use of paper bags, for example, whose use would rise if this ordinance were – actually went into effect, it could cause more environmental harms because paper bags are heavier, it uses more fuel to transport, and there are some questions about whether they actually biodegrade. See, the basic problem with plastic bags, according to those who want to ban it, is it doesn’t biodegrade, it chokes animals, causes all kinds of problems in the intestines of whales, without getting too graphic. This is a morning show. But – but that’s really what it’s basically about and they said, look, the Plastic Bag Coalition has shown that at least there’s this fair question and there is some substantial evidence that would require a full-on environmental impact report.

CAVANAUGH: Now they’re – the reason this is such a big deal is because a lot of cities around California are trying to ban plastic bags and I think the City of San Diego is looking into it. Now what – There are people on the court who dissented from that reasoning. What did they have to say?

EATON: Well, yeah, it was one person. Of course, it was a three-member Court of Appeal panel, and dissenting Justice Mosk wrote that the ordinance was exempt from the requirement because of what is commonly called a common sense exemption. Let me read from his dissent. Quote, this small residential city with only 217 licensed retail establishment that might provide plastic bags would have a comparatively infinitesimal distribution of paper bags. Many of the city’s residents undoubtedly obtain their bags from vendors outside the city. Paper bags may be bulkier than plastic bags but they are larger, requiring fewer bags, and can be recycled. Every possible increased use of paper does not compel an environmental impact report. Moreover, this ordinance does not endorse paper bags. Rather, it promotes reusable bags, closed quote. He even rather cheekily suggested in a footnote that maybe there should be environmental impact report study done on the amount of paper that would be used in the appeal in this particular matter. So he had a great deal of fun writing this particular dissenting opinion and now it’s before the California Supreme Court.

CAVANAUGH: And when do we expect a decision from them?

EATON: Well, probably based on the timing of these sorts of things, probably about a year and a half from now…


EATON: …or more. I looked at the cases – one of the cases for – a couple of the cases that are being – that were argued yesterday and it takes about a year and a half from the time all of the briefs are in to the time that the court actually issues its ruling.

CAVANAUGH: Nothing’s easy.

EATON: Nothing’s easy. Not even paper or plastic, Maureen.

CAVANAUGH: Thank you so much, Dan.

EATON: All right, thank you, Maureen.

CAVANAUGH: That’s These Days legal analyst Dan Eaton. If you’d like to comment on what you’ve heard here, go on And coming up, the ethics of the vaccine controversy. That’s ahead as These Days continues here on KPBS.

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