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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MaskedPixelantehttp://comicbook.com/blog/2014/08/16/exclusive-original-unaltered-cut-of-star-wars-trilogy-to-be-rele/ Yeah, this'll never happen.12/17/2014 - 5:03pm
NeenekoThey have and exercise control over which games are allowed on their privately controlled 'open forum'. Their endorsement is fairly minimal since it is only 'we do not reject this', but it is still an endorsement of sorts.12/17/2014 - 3:58pm
NeenekoHistorically there have been issues with libraries allowing some groups but not others. Perhaps 'endorsement' is too strong a word, but their editorial control IS a preapproval process, even if the standards are pretty minimal.12/17/2014 - 3:56pm
E. Zachary KnightLet's put this a different way. My local library allows any group to reserve and use multipurpose rooms. That does not mean that the Library endorses all events that take place in those rooms.12/17/2014 - 12:54pm
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E. Zachary KnightNeeneko, It is not at all a form of endorsement. Grenlight is an open forum for game developers to pitch their game to Valve/Steam and Steam users. Does Valve have some editorial control? Yes, but not to the point that they preapprove games.12/17/2014 - 12:51pm
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E. Zachary KnightA Game being on Greenlight is not an endorsement of said game by Valve, Steam or anyone related to Valve or Steam. Greenlight is a combined sales pitch to Steam and its users.12/17/2014 - 9:51am
 

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