SCOTUS Arguments Complete

The arguments are over, and some sites have started to detail how things played out in the court. While early indications are that the justices (who heavily questioned California Attorney General Zackery Morazzini about the vagueness of the law, and if it overreaches on protecting children from violent things) seem skeptical of the State’s arguments, there is no real way of knowing which way the court will rule.

If you look at the Crush video ruling earlier this year, you might be inclined to believe that the court will rule on the side of free speech – even when that speech is considered by most to be morally questionable. On the other hand, the court does not have a good record of accomplishment when it comes to the rights of those under the age of 18 – just ask Mr. "Bong Hits for Jesus."

Yeah, different kinds of cases for sure, but we are talking about a law that, if allowed to go forward, would affect an entire industry for years to come. The court has plenty of time to make up an informed decision too, so consider this the beginning.

We’ll have more details on what went on inside the court room when our man on the inside checks in later today. Kotaku has a nice write-up of it here.

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  1. 0
    Monte says:

     I think i recall the same study, granted i think is was far from conclusive, but the mere suggestion that Movies might be worse than video games is evidence that a clear study NEEDS to be before  people like Yee can go off spouting that Interactivity makes video games worse.

    Personally I find that movies are more influential in part because they are passive. If anything as an effect on a person’s mind i would say that it would be immersion, and i find movies to be more often WAY more immersive. You can get really sucked into a movie.

  2. 0
    Thad says:

    I’d say most games are a lot more interactive than CYOA books.

    But remember Night Trap, the one that caused such a fuss in the early 1990’s and helped lead to game ratings?  That one was pretty much an interactive movie.

  3. 0
    Thad says:

    Mortal Kombat and Vulcans (I’m going to take the liberty of correcting some typos in the transcript):

    JUSTICE KAGAN: You think Mortal Kombat is prohibited by this statute?

    MR. MORAZZINI: I believe it’s a candidate, Your Honor, but I haven’t played the game and been exposed to it sufficiently to judge for myself.

    JUSTICE KAGAN: It’s a candidate, meaning, yes, a reasonable jury could find that Mortal Kombat, which is an iconic game, which I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing.

    JUSTICE SCALIA: I don’t know what she’s talking about.

    MR. MORAZZINI: Justice Kagan, by candidate, I meant that the video game industry should look at it, should take a long look at it. But I don’t know off the top of my head. I’m willing to state right here in open court that the video game Postal II, yes, would be covered by this act. I’m willing to guess that games we describe in our brief such as MadWorld would be covered by the act. I think the video game industry —

    JUSTICE SOTOMAYOR: Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?

    MR. MORAZZINI: No, it wouldn’t, Your Honor, because the act is only directed towards the range of options that are able to be inflicted on a human being.

    JUSTICE SOTOMAYOR: So if the video producer says this is not a human being, it’s an android computer simulated person, then all they have to do is put a little artificial feature on the creature and they could sell the video game?

    MR. MORAZZINI: Under the act, yes, because California’s concern, I think this is one of the reasons that sex and violence are so similar, these are base physical acts we are talking about, Justice Sotomayor. So limiting, narrowing our law here in California, there in California to violence — violent depictions against human beings.

  4. 0
    Thad says:

    Highlights from the back half:


    JUSTICE SCALIA: Not too many 13-year-olds walk in with a $50 bill, do they?

    (Which is pretty much what Frank Zappa said when the Senate tried to restrict music sales to minors, and an argument I’ve been using myself throughout this debate.)


    JUSTICE BREYER: You are away from the common sense. If you are going back to the common sense of it, what common sense is there in having a state of the law that a State can forbid and says to the parent that the child, the 13-year-old, cannot go in and buy a picture of a naked woman, but the 13-year-old child can go in and buy one of these video games as I have described? I have tried to take as bad a one as I could think of, gratuitous torture of children. Okay. Now, you can’t buy a naked woman, but you can go and buy that, you say to the 13-year-old. Now, what sense is there to that?

    (I believe Breyer’s reasoning is sound but unfortunately he’s relying on settled law in Ginsberg — if A is already banned, shouldn’t B be banned too?  Of course, the contrapositive of that is, if B shouldn’t be banned, A shouldn’t be either, but then we run up against overturning precedent, which the Court is typically reluctant to do.)


    CHIEF JUSTICE ROBERTS: I thought we referenced them last year in the Stevens case, and the only reason we didn’t have to decide which applies is because we adopted an approach that looked at overbreadth and said this statute is overbroad, and specifically didn’t decide whether it could be applied in that case to crush videos.

    (I only include this one because I specifically remember someone in the GP comments section arguing with me that Stevens was not dismissed because it was overbroad, it was an explicit refusal to regulate violent speech.  Don’t remember who it was, or if he’s still around, but there you have it straight from the Chief Justice’s mouth, whoever-you-are.)


    They knock Smith around a good bit on his assertion that NO law restricting children’s access to violent content could pass constitutional muster.  I’m afraid we’re likely to see a narrow ruling here and more legislation to come.

    I’ll go over the rebuttals later.

  5. 0
    E. Zachary Knight says:

    Yeah, that really bugs me as well. Here is a passage that shows this point:

    JUSTICE KAGAN: Well, so how do we separate
    violent games that are covered from violent games just
    as violent that are not covered?

     MR. MORAZZINI: Well, Your Honor, I think a
    jury could be instructed with expert testimony, with
    video clips of game play, and to judge for
    themselves whether -­

    JUSTICE SCALIA: I’m not concerned about the
    jury judging. I’m concerned about the producer of the
    games who has to know what he has to do in order to
    comply with the law. And you are telling me, well a
    jury can — of course a jury can make up its mind, I’m
    sure. But a law that has criminal penalties has to be
    clear. And how is the manufacturer to know whether a
    particular violent game is covered or not?

     MR. MORAZZINI: Well, Your Honor -­

    JUSTICE SCALIA: Does he convene his own
    jury and try it before — you know, I really wouldn’t
    know what to do as a manufacturer.

     MR. MORAZZINI: Justice Scalia, I am
    convinced that the video game industry will know what to
    do. They rate their video games every day on the basis
    of violence. They rate them for the intensity of the

     JUSTICE KAGAN: So is what is covered here
    the mature category in the ratings? Is that what this
    statute covers? Is that what it’s meant to cover?

     MR. MORAZZINI: I believe that some mature­
    rated games would be covered, but not all.

     JUSTICE KAGAN: Some but not all.

     MR. MORAZZINI: But not all.

    E. Zachary Knight
    Oklahoma City Chapter of the ECA

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

  6. 0
    Zen says:

    Funny how that is the case, but they have kept saying over the years that the ESRB and the gaming community couldn’t be trusted to keep these things out of games…but now all of a sudden they think they can?

    Zen aka Jeremy Powers, Host of the ZensPath Podcast
    Xbox Live Gamertag: "Zen of the Dark"
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  7. 0
    E. Zachary Knight says:

    That was another good part from their questioning. Who is going to decide what falls under the regulations? California’s answer: Juries and the Game Developers. Not exactly promoting confidence in the law there. They are betting on industry self censorship and if that fails costly litigation.

    E. Zachary Knight
    Oklahoma City Chapter of the ECA

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

  8. 0
    BearDogg-X says:

    Another gem from reading the Kotaku article linked was Justice Kagan asking the California lawyer if Mortal Kombat would be banned under the law and the Cali lawyer said he didn’t know.

    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(0-3), LSU(3-0)

  9. 0
    E. Zachary Knight says:

    I liked the very end during the cali rebuttal period, the court basically got the Cali lawyer to admit that changing a minor body feature, like the shape of the character’s ears, and calling it something other than human would exempt the game from the statute.

    That was awesome.

    Overall, it was a great read. During the Cali questioning, the court attempted to grill Cali on whether they were using the least restrictive means. During the EMA questioning they grilled the EMA on whether game violence was protected under the first amendment and whether there was no means that an exception could be made.

    I think they really kept both parties on their toes and asked some tough questions.

    My bias may be seaping through, but I get the feeling that this will swing in our favor.

    E. Zachary Knight
    Oklahoma City Chapter of the ECA

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

  10. 0
    Thad says:

    Love it.  I’m reading through it too.

    JUSTICE SOTOMAYOR: One of the studies, the Anderson study, says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?


    JUSTICE SCALIA: That same argument could have been made when movies first came out. They could have said, oh, we’ve had violence in Grimm’s fairy tales, but we’ve never had it live on the screen.  I mean, every time there’s a new technology, you can make that argument.


    JUSTICE ALITO: Isn’t the average person likely to think that what’s appropriate for a 17-year-old may not be appropriate for a 10-year-old or an 8-year-old?


    JUSTICE KAGAN: Mr. Morazzini, could I take you back to Justice Scalia’s original question, which was what counts as deviant violence or morbid violence. Because I read your briefs all the way through and the only thing that I found you said that was clearly covered by this statute was Postal 2. But presumably the statute applies to more than one video game. So what else does it apply to? How many video games? What kind of video games?


    I’ll quote more as I go through the rest, but this is pretty great.  We really had Scalia figured wrong; he’s the one tearing the law apart the most aggressively.

  11. 0
    Thad says:

    Or movies.

    If our argument is that violent media can convince disturbed people to commit real-life violence, shouldn’t we ban Taxi Driver for getting President Reagan shot?

  12. 0
    E. Zachary Knight says:

    Only on the second page of transcript and have found a wonderful gem:

    MR. MORAZZINI:So this morning, California asks this Court to adopt a rule of law that permits States to restrict minors’ ability to purchase deviant, violent video games that the legislature has determined can be harmful to the development -­

    JUSTICE SCALIA: What’s a deviant — a deviant, violent video game? As opposed to what? A normal violent video game?

    MR. MORAZZINI: Yes, Your Honor. Deviant would be departing from established norms.

    JUSTICE SCALIA: There are established norms of violence?

    E. Zachary Knight
    Oklahoma City Chapter of the ECA

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

  13. 0
    Andrew Eisen says:

    Actually, what he’s saying is that video games are different from other forms of media and therefore require such special attention.


    Andrew Eisen

  14. 0
    potatojones83 says:

    Check out this video on Kotaku. At about 21 seconds in someone asks Yee "Do you support the same law if it applied to books and movies?", Yee’s answer…"Absolutely NOT". My jaw hit my desk and I had to watch that about twenty times to make sure I wasn’t hearing things.

    I know what I’m about to say is a gross oversimplification, but here goes anyway. Yee basically admits that he favors restrictions on free speech on things he doesn’t like, but is against it for things he does like. And on a side note, does anyone really consider it to be a shocker that a senator from California would be against restrictions on movies?

    P.S. sorry if the link isn’t working. If it doesn’t a good ol’ copy-paste will do the trick.


  15. 0
    E. Zachary Knight says:

    Well, they do have to read the 20+ briefs filed, all 11+ prior court rulings, all cases cited in the briefs, the studies cited etc.

    They probably won’t read everything themselves. That’s what court clerks are for. But they will read quite a bit.

    Also, don’t kill your liver over this.

    E. Zachary Knight
    Oklahoma City Chapter of the ECA

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

  16. 0
    Zerodash says:

     I presume there are piles of paperwork and whatnot that the Judges need to go through as well.  Such a decision cannot be made on spoken rhetoric alone.

    Until they make a decision, I will likely be drinking quite a bit more before bedtime. When that Florida judge looked at Bully to possibly declare it a public nuisance, I had trouble sleeping due to worry.  Right now I’m totally on edge.  

  17. 0
    Mr. Blond says:

    Keep an eye on Yee’s office. Silence is good; anything like "I am pleased with how the arguments went and expect a favorable decision" will raise some concerned eyebrows.

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