New York Law School Moot Court Features EMA Case

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

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  1. 0
    mogbert says:

    I think you may be missing the point. This is just practice for them. It isn’t supposed to "mean something".

    Think of it like using Madden 2011 to predict the Superbowl, it’s entertaining, but you’d be foolish to bet your house.

  2. 0
    E. Zachary Knight says:

    Related to that, they changed the core of the trial. The actual Supreme Court case will be about Violent Games. This moot trial gutted that when they changed the nature of the game content to sexual. At that point it is a completely different case.

    E. Zachary Knight
    Oklahoma City Chapter of the ECA

    E. Zachary Knight
    Divine Knight Gaming
    Oklahoma Game Development
    Rusty Outlook
    Random Tower
    My Patreon

  3. 0
    lordlundar says:

    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".

    And right there demonstartes the fallacy of the moot trial. It had to be adjusted to make it a "fair fight". When the actual trial occurs, the judges aren’t going to say "Okay ESA, you have to omit parts A, D, F, and K of your argument to give the state a fighting chance."

    They want the moot trial to actually mean something, then they need to get it as accurate as they can, and stop trying to throw their own spin on it.

  4. 0
    Mr. Blond says:

    Also, the petitioner’s reference to "secondary effects" does little here, thanks to our old friend Scalia. The secondary effects in cases like Renton refer to increases in crime and degradation of property values that accompany adult movie theaters, and Scalia has said that secondary effects do not include effects on the audience.

  5. 0
    JDKJ says:

    "the Court has only allowed rational basis review for materials that are considered obscene"

    Incorrect. The Court in Ginsberg applies the rational basis test after first determining that obscenity is a non-issue:

    Appellant’s primary attack upon [New York’s statute] is leveled at the power of the State to adapt th[e] Memoirs formulation to define the material’s obscenity on the basis of its appeal to minors, and thus exclude material so defined from the area of protected expression. He makes no argument that the magazines are not "harmful to minors" within the definition in [the New York statute]. Thus "[n]o issue is presented . . . concerning the obscenity of the material involved." Roth, supra, at 481, n. 8. (emphasis supplied)

    Moreover, your statement is a complete non sequitor. If the material is in fact obscene, then it isn’t protected by the First Amendment and there’s no need to apply the rational basis test. Or any other test, for that matter.

  6. 0
    Sirusjr says:

     Such a law would be pointless though because the Court has only allowed rational basis review for materials that are considered obscene and there are no video games with sexual content that would be considered obscene under the test in Miller.  

  7. 0
    Cheater87 says:

    Oh great internet censorship. Goes to order uncut video game from Europe, clicks on site… ACCESS DEINED DUE TO OBCENE MATERIAL please buy your locally censored version.

  8. 0
    Andrew Eisen says:

    "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."

    That is the one of the most aggressively absurd things I’ve ever heard.


    Andrew Eisen

  9. 0
    JDKJ says:

    The regulation of sexual material as a product sold to minors need not be held to strict scrutiny. See Ginsberg, wherein the Court states:

    In Prince v. Massachusetts, supra, at 165, this Court, too, recognized that the State has an interest "to protect the welfare of children" and to see that they are "safeguarded from abuses" which might prevent their "growth into free and independent well-developed men and citizens." The only question remaining, therefore, is whether the New York Legislature might rationally conclude, as it has, that exposure to the materials proscribed by [New York’s statute] constitutes such an "abuse." (emphasis supplied)

    The Court in Ginsberg is applying the rational basis test and, as is usually the case when a statute is held to that standard, ultimately upholds New York’s statute as perfectly constitutional.

  10. 0
    Mr. Blond says:

    Tweaking the fact pattern makes it look even better for us. If sexual material, which can historically be regulated to children, must be held to strict scrutiny, I don’t see why violent material would not.

  11. 0
    nightwng2000 says:

    "…though it does feature some factual departures — most notably that the case involves sexual content in games, as opposed to violent content. "

    This is where the comparison falls apart for me.

    Simply because the issue of "sexual content" has long since been established.  Not merely the original intent of the issue of "sexual content", but the misuse of the issue of "sexual content" when treating other specific products of various media formats.

    The real law being considered introduces "violent content" into the mix, which, in legal form, has not truly been tested.  Although many have, in specific cases, threatened to call upon "community standards" and even "public nuisance" to attempt to manipulate authors and publishers of various products using the "violent content", the only reason they have been successful has been through intimidation or misinformation to those in authority (unless those in authority were already biased to begin with).  If actually put to a strigent legal test under current conditions, arguing "violent content" to justify censorship or banning would not be as simple as it would be for "sexual content".

    So, the moment they use a case involving "sexual content" to compare to a case involving "violent content", the comparison fails and the mock case ceases to exist for me.


    NW2K Software

    Nightwng2000 is now admin to the group "Parents For Education, Not Legislation" on MySpace as

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