Duke Journal Analysis: Schwarzenegger v.EMA

February 10, 2011 -

The Duke Journal of Constitutional Law and Public Policy offers an exhaustive analysis of Schwarzenegger v. Entertainment Merchants Association in an article called "The More Things Change, The More They Stay The Same: Schwarzenegger v. Entertainment Merchants Association."

Beatrice M. Hahn dissects every aspect of the case - from the positions of both sides and the lack of data supporting the state's case, to free speech issues and the definition of obscenity. While the lengthy review of the case is interesting, readers will be more fascinated with the conclusions: the Supreme Court will probably rule against California's 2005 video game law.

From the last three paragraphs of the article:

"Nearly all of the analysis by the State and EMA revolved around standards of review, but the Court resurrected the issue of vagueness during oral arguments. The justices turned their attentions to how video game developers and distributors will struggle with interpreting the statute in order to comply with it. The language describing the types of games covered by the law (such as "deviant") are not easy to define, and it is unclear how the legislature differentiated video games from other media to limit the Act from reaching violent material in other formats. Distinguishing different levels of violence, which is necessary as only certain "offensively violent: content would be subject to regulation, is even more problematic. Video game manufacturers would also struggle with defining their audience, particularly with regard to age subgroups of minors, each of which could be more or less susceptible to negative influences than the other. These issues merit the Court’s attention, despite the lower courts’ neglect of the vagueness issue. It is therefore possible that the constitutionality of the statute will be decided on due process grounds, rather than clarifying how violent subject matter, transmitted in new forms of media, will be regulated. It would not be the first time that the Court has offered a narrow ruling with limited applicability.

If the Court does not invalidate the Act on vagueness grounds, a majority of the Court is likely to rely heavily on Stevens to find that violent video games are a form of speech protected by the First Amendment. Stevens demonstrates the Court’s unwillingness to create a carve-out for violent speech. The statute at issue was struck down by an 8-to-1 majority of the Roberts Court, and the justices in that majority probably will invalidate the Act here on similar grounds. The Roberts Court likely will not apply a softened standard of review to a content-based speech regulation of any medium.

There is a "history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling, [and that] our children are all going to be turned into criminals." Today’s objection to video games’ conveyance of violent speech and effort to curtail minors' access "springs largely from the neophobia that has pitted the old against the entertainment of the young for centuries." As long as the Court is not diverted entirely by the vagueness question, Schwarzenegger v. Entertainment Merchants Association may settle the debate over depictions of violence that would otherwise arise repeatedly with the development of new media and vehicles of expression."


Comments

Re: Duke Journal Analysis: Schwarzenegger v.EMA

If only there was a way to sit in on that trial and play GTA on a PSP in the back. It'd be awesome.

-Austin from Oregon

Feel free to check out my blog.

Re: Duke Journal Analysis: Schwarzenegger v.EMA

They've already got clerks playing Mortal Kombat...

Re: Duke Journal Analysis: Schwarzenegger v.EMA

You know what ? A couple of weeks ago, I actually DREAMT that the Supreme Court would actually approve this California Law

This being said, I also dreamt that I was thrown in jail, so...

 

 
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james_fudgeSee what i'm saying?07/01/2015 - 2:48pm
james_fudgeI also am not a PoC and don't understand how a word with hundreds of years of history behind it affects them.07/01/2015 - 2:48pm
james_fudgeWe should also stop pretending that we understand someone else's perspective. I am not a woman nor a rape survivor and I have no idea how this stuff affects them.07/01/2015 - 2:48pm
james_fudgeThe trick is - can people talk about these things without losing their cool?07/01/2015 - 2:46pm
james_fudgetheir position is just as valid as yours07/01/2015 - 2:46pm
Goth_SkunkAs far as I'm concerned, there is no justification for such a stance.07/01/2015 - 2:45pm
Goth_SkunkThe theme of the writer's article is "People shouldn't write rape scenes in their creative works, even though they can." I disagree with the premise on its face, and don't care how one tries to justify it.07/01/2015 - 2:44pm
Goth_Skunk@eZeek: Last I checked, rape was supposed to be offensive. I don't see how it could be anything else. But to call a scene 'bad' just for having implicit or explicit rape in it is ridiculous.07/01/2015 - 2:42pm
TechnogeekThe constant conflation of "you shouldn't do this" as a personal guideline and "you shouldn't do this" as something with the force of law is really getting tiresome. Lawful Neutral was garbage in D&D, and it's garbage in real life.07/01/2015 - 12:24pm
PHX Corphttp://kotaku.com/sources-warner-bros-knew-that-arkham-knight-pc-was-a-1714915219 Sources: Warner Bros. Knew That Arkham Knight PC Was A Mess For Months07/01/2015 - 11:49am
Andrew EisenIf you do, I hope you can provide some examples of people (again, other than random no-name numbnuts on Twitter) who are genuinely trying to dictate what should and should not be allowed so far as themes, topics, language, plot devices, etc. go.07/01/2015 - 9:43am
MattsworknameI'd go into why I think it's a bigger problem then most realize, but nows not the time really. I'll catch up with everyone later07/01/2015 - 9:42am
Andrew EisenThat's the thing though, rarely is anyone (again, other than random numbnuts on Twitter) attempting to dictate what can and cannot be said or done.07/01/2015 - 9:39am
Andrew Eisen"Don't write rape scenes" is being offered as advice (along with reasons for that advice) not a mandate.07/01/2015 - 9:37am
MattsworknameOh, on that last one andrew I wasn't talking about the article, I was being more general, lately it seems like all the news and media is trying to decide what is and isn't proper to say. Thats what i was refering to.07/01/2015 - 9:37am
Andrew EisenPerhaps you should consider reading the entire article. Despite quotes you can pull from the intro and conclusion, the author isn't arguing that you can't or shouldn't be allowed to cover a certain topic.07/01/2015 - 9:35am
MattsworknameOne of the things I hate right now is that people are trying to be the deciders of what is and isn't proper to be said. It's political correctness to a level that makes me angry.07/01/2015 - 9:29am
Mattsworknamemake them, i just tell peopel that I think what they did sucked. Just cause I dont like what they did, doesn't mean I can tell them "You shouldn't wrtie that" cause thats just another step on the way to telling them "YOU CANT WRITE THAT".07/01/2015 - 9:24am
MattsworknameNo, but you or I aren't the one to tell someone else what they can or cannot do beyond EXTREMELY narrow limits. Telling a person then shouldn't write something or say something. I may hate certain movies or music, doesn't mean I dont' tell peopel not to07/01/2015 - 9:23am
E. Zachary KnightHasbro is taking steps to fix its Dinosaur gender issues. http://io9.com/the-jurassic-world-dinosaur-toys-are-clever-girls-again-171513589607/01/2015 - 9:20am
 

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