A federal appellate panel, sitting in special session Wednesday in Sacramento, heard California's appeals in two constitutional cases decided in lower courts against the state and its officials.

The session of the 9th U.S. Circuit Court of Appeals, the highest court in the Western states, was at the University of the Pacific's McGeorge School of Law before an audience of 300, mostly students, faculty and members of the legal community.

In one appeal heard by the three-judge panel, a trial court judge in San Jose last year struck down as unconstitutional a state law that sought to restrict the retail distribution of violent video games to minors. The law would have prohibited the sale or rental of violent games to persons under 18. A civil penalty of up to $1,000 could be imposed for each violation.

District Judge Ronald M. Whyte had ruled that the state failed to show the law meets two requirements: that it is the least restrictive means of curtailing speech, and it is based on a nexus between the well-being of minors and the speech restrictions.

In the other case, a jury in Sacramento federal court found a year ago that an inmate's constitutional right to be free of cruel and unusual punishment was violated when he was deprived of outdoor exercise during four extended lockdowns at a prison in Folsom.

Gregory Lynn Norwood was awarded nominal general damages of $11, but the jury also directed six high-ranking current and former corrections officials to pay Norwood a total of $39,000 in punitive damages.

Both cases were submitted and will be decided later.

In the video case, Deputy Attorney General Zachery Morazzini argued that Whyte erred in not applying a landmark 1968 U.S. Supreme Court decision on obscenity – Ginsberg v. New York – to violent video games. The high court ruled certain limitations on minors' access to obscene material are justified.

"Minors can't be trusted to make important decisions impacting on their physical and psychological well being," Morazzini told the judges.

"If 'The Iliad' were turned into a video game, it would fall within your definition of violent," said Judge Sidney R. Thomas.

But Morazzini said the ancient Greek epic poem would be exempt because the "value of great literature overcomes its violent nature."

Why not a law targeting "games that teach children bad living habits, such as eating unhealthy food or using plastic bags?" asked Chief Judge Alex Kozinski.

Morazzini replied that the state is not trying to keep minors from committing violent acts; rather, it is trying to prevent the "excited, aggressive feelings they experience when playing these games."

To which Paul Smith, an attorney for the video software industry, said, "This smacks of thought control. Do we really want the government deciding we can't have access to something the state of California disapproves of because it gets the user excited? That's scary."

In the Norwood case, Deputy Attorney General James Flynn argued that U.S. District Judge Garland E. Burrell Jr. should have found the corrections officials immune from legal attack.

With some exceptions, the Constitution insulates states and their officials from civil lawsuits.

But Kozinski and Judge Consuelo M. Callahan questioned whether the state had preserved the immunity issue for appeal, pointing out its attorney, James Sobolewski, did not ask for a ruling after Burrell had heard and seen all of the trial evidence.

Erin Haney, a law student at the UC Davis School of Law's Civil Rights Clinic, argued on behalf of Norwood that security concerns cannot be used as a pretext for lockdowns really meant to punish inmates.

Callahan, whose chambers are in Sacramento, said visits by the San Francisco-based circuit court like the one to McGeorge, are "all about access, providing an opportunity for people to observe the court without having to travel long distances."

Call The Bee's Denny Walsh, (916) 321-1189.