SCOTUS Rules on Case that Could Lead to EMA v. Schwarzenegger Decision

The Supreme Court today issued a ruling on a First Amendment case that could have a direct impact on the Entertainment Merchants Association v. Schwarzenegger appeal which has been languishing in the nation’s top court.

United States v. Stevens centered on the rights of Robert Stevens to sell or traffic in media that depicted animal cruelty. Stevens was arrested under a 1999 law that attempted to forbid the depiction of cruelty against animals. SCOTUS ruled 8-1 that the government, per the SCOTUS Blog, “lacks the power to outlaw expressions of animal cruelty, when that is done in videotapes and other commercial media.” The decision (PDF) essentially nullifies the 199 law.

Chief Justice John G. Roberts, Jr. wrote that the court “was not restricting the power of government to punish actual acts of animal cruelty,” but that “there was no similar history behind Congress’s attempt to ban video or other portrayals of acts of cruelty to living creatures.”

Justice Alito Samuel Alito was the lone dissenter, arguing that the 1999 law should have been analyzed further and that “the Court should have sent the case back to the Third Circuit to decide whether Stevens’ videotapes were illegal under the law.”

It is widely believed that SCOTUS held off on an EMA v. Schwarzenegger decision until a decision on US v. Stevens was reached, due to similarities between the cases in regards to legal restrictions on depictions of violence.

EMA v. Schwarzenegger (formerly The Video Software Dealers Association (VSDA) v. Schwarzenegger) revolves around a Californian law that banned the sale of certain videogames to anyone under 18 years of age. First signed into law by Schwarzenegger in 2005, the law was rejected again in February of 2009 by the 9th Circuit Court of California, which upheld an earlier 2007 ruling that deemed the law unconstitutional.

Schwarzenegger and California Attorney General Jerry Brown appealed the case to the Supreme Court in May of 2009.

Thanks BearDogg-X, PHX Corp and E. Zachary!

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  1. 0
    Zero Beat says:

    You’re right, there is a huge difference, and that’s the point.  It wouldn’t make sense for the SCOTUS to rule in favor of a man selling videos showing actual harm being done to actual living beings, but then ruling in favor of banning the sale to children of video games that show various degrees of virtual violence to human-shaped virtual characters.  Under the California statute, N+ could be banned because it shows a human-shaped stick figure with a sweet red bandana being blown apart.  N+ is rated T, by the way.


    "That’s not ironic. That’s justice."

  2. 0
    Adrian Lopez says:

    There’s indeed a huge difference between animal cruelty and depictions of animal cruelty. The problem with the law that was just struck down is that it might conceivably have been applied to depictions of animal cruelty rather than specific instances of animal cruelty.

  3. 0
    Andrew Eisen says:

    "It is widely believed that SCOTUS held off on an EMA v. Schwarzenegger decision until a decision on US v. Stevens was reached, due to similarities between the cases in regards to legal restrictions on depictions of violence."

    Well that’s absurd.  There’s little similarity between the depiction of violence in a video game and in a video of animal cruelty.  The latter is real, the former is not.  Humongous difference that.


    Andrew Eisen

  4. 0
    EvilTikiMan says:

    With every court hearing involving potential wrongdoing and them being related to anything else I wonder how much more the world seems to forget about the issue of Context and Intent.


    The true American is one that does not let themselves become polarized in their party affiliations; they stay around the middle and listen to the word of both.After all the middle is created by two extremes, and we all know that you dont follow a crazy person.

  5. 0
    BearDogg-X says:

    So we will know by Monday, April 26 whether SCOTUS will even hear California’s appeal. I believe that SCOTUS will deny cert.

    Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra. Hell will stay frozen over for quite a while since the Saints won the Super Bowl.

    Proud supporter of the New Orleans Saints, LSU, 1st Amendment; Real American; Hound of Justice; Even through the darkest days, this fire burns always

    Saints(3-4), LSU(7-0)

  6. 0
    Roh02 says:

    its rare (to my knowledge) in a game where you HAVE to hurt or kill an animal

    put animals in the game put weapons in the game make it POSSIBLE to do harm to the animals but only make it ilegal to post the result on youtube or something like that (something public).

    you havent harmed an animal (their not real) made a video (it may be on screen but it isnt recording) or shown it to anyone

    you could argue that showing animals in games that cant be hurt could do more harm than good … WOW DOGS ARE IMMUNE TO EXPLOSIONS gottta try that out!!

    or in fallout 3 … ok lets go Dogmeat … good work on those raiders Dogmeat … HEY dont attack the radscorpian LEAVE THE MIRELURKS ALONE … NOT THE DEATHCLAW … RIGHT from now on you dont leave Megaton STAY good boy. see games teach you good animal morals.

  7. 0
    Flamespeak says:


    CNN is running this story right now. Although keeping it all about animal abuse. The bulk of the justices felt that the law was just far to broad and they came up with loads of hypotheticals that would be banned under the law’s definition (including gladiator fights from movies, both new and old). In short, it needs to be a heck of a lot more specific. This got me to respect Justice Roberts though:

    (quote)The government had argued a "compelling interest" in stopping people who would profit from dog attack tapes and similar depictions. Roberts dismissed suggestions by the Justice Department that only the most extreme acts of cruelty would be targeted.

    "The First Amendment protects against the government," Roberts said. "We would not uphold an unconstitutional statute merely because the government promised to use it responsibly."(/quote) –


  8. 0
    Flamespeak says:

    A drawing, no matter how offensive or what the subject of it might be, should never be considered illegal. Photographic evidence portraying actual abuse is a totally different story because someone or something actually was harmed.

    That would be the supreme court decision. I may not be a fan of the government, but I do have to admit the SC is pretty good at using common sense. Well, the majority of them anyway, and the majority is all that is needed.

  9. 0
    Neeneko says:

    This decision makes me wonder what the current SC would do if that anti-lolicon law actually got challenged.

    The basic arguments for making the animal cruelty videos illegal are the same arguments used to prop up both the loli and (more directly) kiddy porn itself… i.e. that allowing the videos produces a market, and where there is a market there is finantial incentive to commit the related crime coupled with increased interest in viewers to ‘act out’ the video by feeling that their desires are ‘normal’.  Granted there are other arguments against CP that fall outside the scope of this case (since they depend on humans, psychological damage and grooming, which are not currently legally accepted as appling to non-human animals, and of course that vauge catch-all obsenity), still, it would be intersting to see what the SC would do if the same arguments were applied to a less politically viable case.

  10. 0
    Rennie Davis says:

    Macknzie, Actually, it is widely believed by individuals close to the case that SCOTUS has held off on ruling on the Schwarzenegger cert. petition while Stevens was pending. (Sorry, can’t reveal my sources.)

    In Stevens, the U.S. government was asking SCOTUS to adopt a new balancing test for determining whether material is worthy of First Amendment protection; they suggested the court balance the value of the speech against the harm of the speech. (Today the Chief Justice characterized that as "startling and dangerous.") The state of California is making a similar argument in the Schwarzenegger case. So it made perfect sense for the court to resolve that issue in Stevens before deciding whether to hear Schwarzenegger




  11. 0
    Macknzie says:

    First, we’re not waiting for a Supreme Court decision on the merits, as the post implies. We’re just waiting for a decision on whe petition for writ of certiorari. Second, the court that last ruled on the merits of the CA suit was not the "9th Circuit Court of California," which suggests it is a California state court. It was the United States Court of Appeals for the Ninth Circuit, commonly abbreviated 9th Circuit. It’s very different because the 9th Circuit (and therefore its decisions) covers a rather large portion of the country, not just California.

    Lastly, what sort of sourcing is there for the statement that "[i]t is widely believed that SCOTUS held off on an EMA v. Schwarzenegger decision until a decision on US v. Stevens was reached"? Widely believed by whom? And even if it is "widely believed," so what? Does anyone with expertise actually believe that? I’m pretty skeptical that there’s any connection between the two, and I suspect that most expert court-watchers would immediately dismiss the notion. If I’m wrong, great, but let’s get someone on the record.

    The legal system can be complicated, and that makes reporting about it difficult sometimes. Still, this strickes me as a piece of non-news when it comes to the pending cert. petition.

  12. 0
    Bill says:

    If you read the ruling it doesn’t say that videos showing animals being cruelly killed can’t be outlwed, it just says that the 1999 law was too broad and could potentially affect hunting videos or other forms of media that show injury to animals etc.

  13. 0
    Father Time says:

    "nullifies the 199 law"

    Woah we had laws in this country before the Europeans found it? Cool.


    Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it’s over they have the same positions they started in.

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