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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Papa MidnightBecause, you know, that's worked out so well over the past 10 years that they've said the same exact thing: https://i.imgur.com/RFrFNoZ.jpg03/05/2015 - 9:25am
Papa MidnightAh, it's a new year. You know what that means: time for Microsoft to renew it's promise on PC Gaming! http://www.businessinsider.com/windows-10-games-2015-303/05/2015 - 9:24am
MechaTama31Not to belabor the point, but you did say "folks" and "any links", which doesn't sound to me like you were referring only to one particular link... </pedant> ;)03/05/2015 - 8:33am
MechaCrashIt can be made extraneous, depending on how you format the URL. For example: http://youtu.be/dQw4w9WgXcQ03/05/2015 - 6:28am
Andrew EisenMechaTama - I was referring specifically to the link below my post. I should have been more clear. My bad.03/05/2015 - 2:42am
james_fudgefair point, let's say "excluding YouTube videos"03/05/2015 - 2:25am
MechaTama31The stuff after the ? is not *always* extraneous.03/04/2015 - 11:57pm
MechaTama31AE: But that would make your link https://www.youtube.com/watch , which wouldn't work so well... ;)03/04/2015 - 11:56pm
E. Zachary KnightFor those curious, that timeline came from Destructoid: http://www.destructoid.com/tomm-hulett-s-unified-mario-timeline-theory-288472.phtml03/04/2015 - 8:11pm
WymorenceJeez, who'd have thought Yoshi doing a good deed was the reason for everything in Mushroom Kingdom being so screwed up...?03/04/2015 - 7:49pm
prh99The most popular games on Steam for 2014 http://bit.ly/1zLE0r403/04/2015 - 7:47pm
Papa MidnightWow, EZK. Oh my goodness, that timeline is huge.03/04/2015 - 6:59pm
E. Zachary KnightIt's the Super Mario timeline. https://dl.dropboxusercontent.com/u/386496/smbTimeline_huge.png03/04/2015 - 6:49pm
prh99There are the various URL shortening services.03/04/2015 - 6:45pm
WymorenceIronic that they're releasing a game about cops and robbers in essence while they don the "extortionist" mask...03/04/2015 - 6:38pm
james_fudgeI'm not a miracle worker :)03/04/2015 - 6:09pm
Craig R.That link is still awful due to the fact that the entire article title is part of the URL :P03/04/2015 - 6:00pm
MonteI'm really waiting to see more publishers get serious backlash for those horrible DLC practices03/04/2015 - 5:48pm
MonteBattlefield with prioty servers for those that pay... sounds like EA wasn't a big supporter of Net Neautrality03/04/2015 - 5:47pm
PHX Corp@james_fudge thanks03/04/2015 - 5:28pm
 

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