Earlier this week, we reported on the results of a moot court hosted by the Institute of Bill of Rights Law at William & Mary Law School, in which several noted journalists, legal scholars, and even a federal judge sat down to hash out a mock version of the Schwarzenegger v. EMA case pending before the Supreme Court. The IBRL moot court found 6-3 in favor of the State of California, causing some concern as to whether the result was an outlier or a hint towards how the Supreme Court may rule.
Apparently, William & Mary is not the only law school considering the question. New York Law School, famous for their annual State of Play conference, held a moot court competition of their own featuring a fact pattern very similar to that of the Schwarzenegger v. EMA case. We obtained a copy of the bench brief from the case, which was written by NYLS third year law students Andrew Blancato and John Hague for the Charles W. Froessel Intramural Moot Court Competition.
The case, Sweetwater v. Dubroff Interactive, was heavily inspired by the EMA case, though it does feature some factual departures -- most notably that the case involves sexual content in games, as opposed to violent content. Some excerpts from the brief give insight to how the Supreme Court might rule in EMA:
Petitioner‘s ultimate challenge in surviving strict scrutiny is to show that the VGIA is a narrowly tailored means of furthering the compelling interest of protecting the well-being of minors. Petitioner would ultimately make this a fact-intensive argument, claiming the VGIA represents a narrowly tailored means of achieving this interest as the record is clear that other means of protecting children have failed to achieve this interest.
It will be imperative for Petitioner to distinguish the VGIA from other video game laws which have been struck down by federal courts for failing to satisfy the narrowly tailored prong of strict scrutiny.
Respondent should rely on Ashcroft v. ACLU, which the 9th Circuit used in deciding Kilbride, especially the opinions of Justices O'Connor and Breyer, who reasoned that a ―national standard‖ should be used for laws involving distribution of obscene material over the Internet. Respondent should focus on the possibility of a small jurisdiction acting as a censor for the entire Internet. They should argue that anything less than a national standard could potentially suppress an inordinate amount of expression.
If the local standard was permitted, the application of a local Amish community‘s understanding of obscenity would act as a censor on the whole of the nation in terms of material published on the Internet. This effectively gives a town like Sweetwater a veto power on material that is legal and acceptable in the jurisdictions within which it was created. For example, a theater presenting a play with explicitly sexual language / themes might be deemed acceptable to the city in which the theater was located. However, when the theater hosting the play posts pictures and video clips from it on its website, intending that local people view them, the theater has effectively broadcast these materials into the Sweetwaters of this country, potentially violating a law of which they had no knowledge. Not only would they not have knowledge of the law, the standards would be unknowable to them as they are not residents of Sweetwater and not privy to what may be considered obscene by the adult community of Sweetwater. This would unconstitutionally chill protected First Amendment expression on the Internet. See Ashcroft, 542 U.S. at 672.
The brief also includes some sample questions for the petitioners representing the State that could give an indication as to what the Supreme Court might be thinking when they conduct oral arguments in November.
"Intermediate scrutiny seems to be inappropriate here. After all, this is a law which targets the sexual content of the video game rather than the time, place, and manner of how a video game is sold, correct?"
"Your Honors, this law regulates the manner in which video games are sold based on the harmful secondary effects produced by the material in this game. This law functions almost indistinguishably from how the zoning regulations functioned in cases like Renton, Alameda Books and Pap's A.M. In these cases just as in ours, producers of sexual material are having the manner in which they disseminate their product regulated based on the occurrence of harmful effects from otherwise unregulated sexual material."
"Strict scrutiny is aptly named. Rarely does a law pass strict scrutiny, especially a law which restricts speech. Why does the evidence in Exhibit B make this law constitutional?"
"The evidence in Exhibit B shows there is a causal connection between playing sexual video games and anti-social behavior. The connection found in a Froessel State College study also seems to reflect the same view of several doctors around the nation as shown in the journal article mentioned in Exhibit B shows. This evidence is greater than the evidence offered by governments in similar cases which have failed strict scrutiny, such as Entertainment Software Association v. Blagojevich."
"The study in Exhibit B seems incomplete. Women are the ones who get pregnant. Where is the information regarding the effect the video game has on women?"
"Your Honor is correct that the study in Exhibit B does not contain effects on women. However, the article in Exhibit B does contain anecdotal evidence from a teenage girl who played the game and subsequently got pregnant because the game ―awoke something in her.‖ Furthermore, Your Honor, the evidence produced by the government under a strict scrutiny standard of review has never been held by this court to necessarily be irrefutable. This standard was something created by the Seventh Circuit in American Amusement Machine Association v. Kendrick. That standard conflicts with those cases held by the Supreme Court to have survived strict scrutiny."
GP: The bench brief did not provide any guide to determining which side should win; however a source familiar with the competition informed me that "the fact pattern had to be toned down to make California's position even arguable". Given the significant factual differences between the moot case and the real case, that seems to speak to California fighting an uphill battle.
A full copy of the brief can be viewed here (PDF).
Dan Rosenthal is lawyer and analyst for the video games industry