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...

 

 
Forgot your password?
Username :
Password :

Poll

Will Code Avarice's Paranautical Activity make its way back onto Steam?:

Shout box

You're not permitted to post shouts.
quiknkoldMarvel just made my nips hard10/22/2014 - 9:50pm
Andrew EisenMarvel also shows it understands that once it leaks, it's out there and went ahead and officially released the trailer. https://www.youtube.com/watch?v=tmeOjFno6Do10/22/2014 - 9:36pm
E. Zachary KnightMarvel's response is the best.10/22/2014 - 9:31pm
Andrew EisenI'll be streaming some games tonight at 8p PST in preparation for Saturday's marathon. twitch.tv/andreweisen10/22/2014 - 9:30pm
Adam802http://www.cbsnews.com/news/3d-video-games-surprising-concern/10/22/2014 - 9:16pm
MaskedPixelanteI'm not sure how to feel about Ultron's mouth. I'm sure he has one in the comics, but this is getting dangerously close to Transformers "Optimus has a defined mouth and it looks super weird" territory for me.10/22/2014 - 8:49pm
Andrew EisenMarvel on the leaked Avengers 2 trailer: https://twitter.com/Marvel/status/52507165630662656010/22/2014 - 8:09pm
E. Zachary KnightI squeed like a little girl when I watched the leaked Avengers Age of Ultron trailer. So much awesome.10/22/2014 - 6:47pm
quiknkoldI have a problem with games that use a digit for sequals when clearly they can be called something else. Five Nights at Freddy's 2? Nonono. Its "Another Five Nights at Freddy's" or "Five Nights Week 2"10/22/2014 - 5:30pm
E. Zachary KnightExtra Credits has come out against GamerGate. https://www.facebook.com/ExtraCredits/posts/86104175727438610/22/2014 - 5:28pm
E. Zachary Knightis it really that hard to answer a question, that to me seems fairly straight forward? I ask, because I have asked a specific question now 3 times without an actual answer in the wastebook thread.10/22/2014 - 5:20pm
Andrew EisenFive Nights at Freddy's 2! Yay! https://www.youtube.com/watch?v=lVPONdZBh6s10/22/2014 - 5:07pm
Matthew Wilsonyou guys know he doesnt work for ea anymore?10/22/2014 - 5:02pm
WymorenceYou forgot having to open Unity through Origin too. :p10/22/2014 - 4:37pm
MaskedPixelanteUnity will now be licensed out half finished, with remaining tools to be sold back to you for 10-15 dollars a piece.10/22/2014 - 3:23pm
E. Zachary KnightNot a big fan of this news, but Unity3D's CEO is stepping down and John Riccitiello steps up. http://gamasutra.com/view/news/228384/Helgason_steps_down_as_Unity_CEO_and_John_Riccitiello_steps_up.php10/22/2014 - 3:06pm
MaskedPixelanteIt's probably extremism.10/22/2014 - 12:07pm
Matthew Wilsonthat being said, they are more likely to blame religious extremists than games.10/22/2014 - 12:01pm
Matthew Wilsonlets just hope they dont try to blame video games.10/22/2014 - 12:00pm
MaskedPixelanteOh joy, Ottawa's on lockdown, this is going to be a fun couple of days...10/22/2014 - 11:56am
 

Be Heard - Contact Your Politician