EMA v. Schwarzenegger Back on SCOTUS Radar

April 21, 2010 -

The nation’s highest court will gather this Friday in order to discuss, among other things, whether or not it should review a California law preventing the sale of violent videogames to children.

The Supreme Court’s website shows that Entertainment Merchants Association (EMA) v. Schwarzenegger was “distributed for conference of April 23, 2010.” The order was dated April 20, 2010, giving more credence to popular thought that case number 08-1448 was shelved until a decision was reached on the First Amendment case of United States v. Stevens, in which the Court voted 8-1 that the government cannot outlaw expressions of animal cruelty.

The similarities between this case and EMA v. Schwarzenegger revolve around legal restrictions over depictions of violence.

If SCOTUS grants a writ of certiorari (judicial review) to EMA v. Schwarzenegger, the law, which was deemed unconstitutional by a U.S. Ninth Circuit Court of Appeals in February of 2009, would be fully reviewed by the Supreme Court.

California State Senator Leland Yee (D), who originally sponsored the bill/law, stated, “I believe the high court will uphold this law as Constitutional.” He added, “I am hopeful that the Supreme Court – which has never heard a case dealing with violent video games – will accept our appeal and assist parents in keeping these harmful video games out of the hands of children.“

Yee’s office issued a statement on the matter, in which the link between United States v. Stevens and EMA v. Schwarzenegger was downplayed:

This week, the high court struck down a law, in United States v. Stevens, that attempted to ban the sale of media that depicts animal cruelty, however, the Court said that such a law may be constitutional if it were more narrowly tailored.  California’s violent video game is narrowly tailored and focuses only on the sale of ultra-violent video games to children, whereas the Stevens case banned the sale of animal cruelty films to all individuals.  In addition, California’s law is dealing with an interactive media versus a passive media in the animal cruelty case.

On the other hand, over at Games Law, Liz Surette authored an extremely detailed piece explaining why she believes the Stevens case will impact the EMA case stating:

…the statute at issue in EMA v. Schwarzenegger is analogous to the one in US v. Stevens and will probably be stricken down because the Court is loathe to create new categories of unprotected speech except in very extreme circumstances.

Schwarzenegger also weighed in, saying, “I will continue to vigorously defend this law and protect the well-being of California’s kids.”

A SCOTUS decision on the matter should emerge Monday morning.
 

Thanks to nightwng2000 for the original head's up!


Comments

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

If this passes, does it mean that I won't be able to foul Orcs with my Dark Elves in Blood Bowl? After all, it could be said that such a thing lacks 'serious' artistic, literary, scientific or political merit', it is, however, going to be kind of hard to get past their Blockers if I don't...

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

Cali's law uses the wording that the violent games "lack serious artistic, literary, scientific or political merit" as part of it's three prong test for what violent games can be regulated. The Supreme Court in Stevens said that the "serious" part of the prong only applies to sex within obsenity law and not for other forms of content within speech. This tells me that Cali's law is pretty much a goner. 

 "No law means no law" - Supreme Court Justice Hugo Black on the First Amendment

"No law means no law" - Supreme Court Justice Hugo Black on the First Amendment

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

*ponders* Though now I am wondering... how does animal cruelty overlap with obscenity laws?  I wonder if the prosecution tried to make that case.

I could see the argument that such videos have no literary or scientific value, appeal to puriant interest, and are offensive to contemporary community standards.

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

 They are related because cruelty to animals it is a visual form of violence and the california law deals with the [fictional] visual portrayal of violence in video games

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

There is a big difference though and that is Stevens dealt with REAL violence done against REAL Animals shown in films and photographs. Cali's video game law deals with simulated fake depictions of violence in which nothing is actually being harmed. This is another strike against Cali-'s anti-gaming law.

 "No law means no law" - Supreme Court Justice Hugo Black on the First Amendment

"No law means no law" - Supreme Court Justice Hugo Black on the First Amendment

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

Oh, Leland- ever the liar! 

I remember when he said that whatever the state court decided on this bill, it would be the last thing he does regarding games.  And yet, here he is continuing his little fools errand. 

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

Not just a lair but a hypocrite also. Leland apparently doesn't see a problem with young children playing with toys with toxic plastics in them but a high school aged teenager playing a violent video game will warp their fragile little minds and pychologically harm them. Sounds like he got his priorities mixed up there.

 "No law means no law" - Supreme Court Justice Hugo Black on the First Amendment

"No law means no law" - Supreme Court Justice Hugo Black on the First Amendment

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

Leland Yee continues to prove that he is nothing more than a blithering idiot who will be weeping into the streets of Sacramento Monday morning when SCOTUS denies cert to California's appeal.

If Yee's bill was really "narrowly tailored"(and it never was "narrowly tailored"), California wouldn't be wasting taxpayer money on a last-ditch effort to get a district court and appeals court decision overturned.

Second, Pee-Pee Yee, all media is interactive.

As far as Arnold Schwarzenegger goes, he will forever be known as a hypocrite.

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.

Geaux Saints, Geaux Tigers, Geaux Pelicans. Solidarity for the Saints = No retreat, no surrender. 2013 = Saints' revenge on the NFL. Even through the darkest days, this fire burns always.

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

Chances are it's already Game over for California's video game law

As for Arnold, Once he leaves office, he should never return to Hollywood ever again

Watching JT on GP is just like watching an episode of Jerry springer only as funny as the fights

America has just became its own version of the Jerry Springer Show after a bizarre moment in Florida involving a carnival worker.

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

"he should never return to Hollywood ever again"

But I like his movies. Although he is in his 60s and going from governor back to actor would seem like a step down, my bet is he's going to retire.

----------------------------------------------------

Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it's over they have the same positions they started in.

---------------------------------------------------- Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it's over they have the same positions they started in.

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

You both realize he is in "The Expandables" that will soon make it to the big screens, right?

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

"the First Amendment case of United States v. Stevens, in which the Court voted 8-1 that the government cannot outlaw expressions of animal cruelty."

No, it did not.  It ruled that the SPECIFIC law was too broad and could define hunting videos as animal cruelty.  The opinion left the door open for a more specific law to pass constitutional muster.

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

From SCOTUS's own blog:

Refusing to remove another form of expression from the protection of the First Amendment, the Supreme Court on Tuesday ruled 8-1 that the government lacks the power to outlaw expressions of animal cruelty, when that is done in videotapes and other commercial media.  The Court noted that it had previously withdrawn “a few historic categories” of speech from the First Amendment’s shield, but concluded that “depictions of animal cruelty should not be added to the list.”  The decision nullified a 1999 federal law passed by Congress in an attempt to curb animal cruelty by forbidding its depiction.

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

Uh, just because it's called SCOTUSblog doesn't make it "SCOTUS's own blog".  The description on its twitter feed is "A blog written by lawyers, students, and journalists devoted to coverage of the Supreme Court of the United States."  You might want to familiarize yourself with the difference between .com and .gov domains -- whitehouse.com is not actually the President's website.

From the LA Times: "Writing for himself and every other justice but Samuel A. Alito Jr., Chief Justice John G. Roberts Jr. suggested that the law could criminalize depictions of hunting or of the slaughter of livestock. (Roberts indicated that a narrower statute targeting crush videos might be constitutional — a suggestion quickly endorsed by animal rights activists.)"

From the USA Today: "By an 8-1 vote, the Supreme Court said Congress wrote the disputed law too broadly, potentially covering hunting and other activities that would not always be deemed cruel. The text of the law, used to prosecute a Virginia man who advertised videos of dogfights, covered "any depiction" in which "a living animal is intentionally maimed, mutilated, tortured, wounded or killed."  The opinion invites Congress to craft a law targeting only "crush videos," which had inspired the 1999 law and which typically show women's heels digging into small animals."

From the Christian Science Monitor: "In striking down the 1999 Depiction of Animal Cruelty Act, Chief Justice John Roberts said the law was substantially overbroad and could criminalize depictions of entirely lawful conduct such as hunting videos and magazines."

From the Washington Post: "But Roberts said the law could be read to allow the prosecution of the producers of films about hunting. And he scoffed at the administration's assurances that it would only apply the law to depictions of extreme cruelty."

From the New York Times: "The decision left open the possibility that Congress could enact a narrower law that would pass constitutional muster. But the existing law, Chief Justice Roberts wrote, covered too much speech protected by the First Amendment."

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

"You might want to familiarize yourself with the difference between .com and .gov domains -- whitehouse.com is not actually the President's website."

Patronizing git. I'm well aware of the difference between .com and .gov domains. Do I need to remind you that just because a website has a .com domain it doesn't mean it's not a government website? If you doubt it, see usps.com (usps.gov redirects to that).

Having said that, you are quite correct about SCOTUSblog not being affiliated with the US government. That was my mistake, though you still haven't convinced me that this decision is anything other than an unequivocal rejection of the notion that the government should create a new category of unprotected speech in the same vein as laws that prohibit child pornography.

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

"Do I need to remind you that just because a website has a .com domain it doesn't mean it's not a government website?"

Flawless reasoning.

It also doesn't mean it's not a midget sex site.  Should your default assumption then be that all .com domains are midget sex sites?

"you still haven't convinced me that this decision is anything other than an unequivocal rejection of the notion that the government should create a new category of unprotected speech in the same vein as laws that prohibit child pornography."

I'm not going to cite a sixth source for you.  You can choose to believe five respected news sources or you can choose to believe a blog post whose authorship you didn't have straight when you read it.

Me, I don't think this is the last we've heard of this.  Congress will pass a narrower law, it will be challenged again.  Maybe the Supreme Court won't hear that one, but my prediction is they will.  What happens after that I can't say -- but that will be the case where they decide whether or not animal cruelty videos are protected speech.  This one just decided that a 1999 law defined animal cruelty too broadly to make that case.

But yeah, of course it's entirely possible I'm wrong, and it'll be years before we see how this develops as precedent.  And there's going to be at least one new Justice, and probably more, on the court by the time this comes up again.

But I definitely think "the Court voted 8-1 that the government cannot outlaw expressions of animal cruelty" is a gross oversimplification at best.

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

"Flawless reasoning. It also doesn't mean it's not a midget sex site.  Should your default assumption then be that all .com domains are midget sex sites?"

Did I say at any point that all .com domains are government web sites? I guess I shouldn't blame you for implying it. After all, I'm sure it makes it a lot easier for you to argue against others when you argue against something other than what they actually said.

In any case, the impression I got from the website's name is that the website was somehow affiliated with the Supreme Court. I was wrong. You don't have to be an asshole about it.

"I'm not going to cite a sixth source for you."

It wouldn't make any difference. The only source that matters is SCOTUS itself.

"You can choose to believe five respected news sources or you can choose to believe a blog post whose authorship you didn't have straight when you read it."

Second hand interpretations by respected news sources are still second hand.

"This one just decided that a 1999 law defined animal cruelty too broadly to make that case."

The court does say the law is overbroad, but I think it's worth looking at some of the reasons why it says so. Most significant, I think, is the statement that "depictions of animal cruelty are not, as a class, categorically unprotected by the First Amendment." Thus, the court is refusing to treat depictions of animal cruelty the same as it treats such categories of speech as obscenity, which are considered unprotected speech. The court specifically rejects the government's contention that "depictions of 'illegal acts of animal cruelty' that are 'made, sold, or possessed for commercial gain' necessarily 'lack expressive value,' and may accordingly 'be regulated as unprotected speech.'"

Thus, depictions of animal cruelty are protected under the first amendment and may only be restricted to the same degree that other forms of protected speech may be restricted.

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

Wait till Monday? Oh the suspense!!! >_<

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

“I believe the high court will uphold this law as Constitutional.” -Leland Yee

You're either lying or stupid.

 

Andrew Eisen

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

"You're either lying or stupid."

If that is a quote from where I think it is, then bravo!

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

Ok where's that from it sounds familiar but I can't put my finger on it.

----------------------------------------------------

Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it's over they have the same positions they started in.

---------------------------------------------------- Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it's over they have the same positions they started in.

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

It came from transformers the 1984 movie here's the entire comment

Starscream: It was the Triplechangers, they tricked me!
Megatron: You're either lying or stupid.
Starscream: I'm stupid! I'm stupid!

Heres a video to prove it's Mention

http://www.youtube.com/watch?v=9IYe8JRVzAE&feature=related

 

Watching JT on GP is just like watching an episode of Jerry springer only as funny as the fights

America has just became its own version of the Jerry Springer Show after a bizarre moment in Florida involving a carnival worker.

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

I think it's been used before and since, Usualy exchanging "Fool" for "Stupid", but that is my favorite example.

Hunting the shadows of the troubled dreams.

Hunting the shadows of the troubled dreams.

Re: EMA v. Schwarzenegger Back on SCOTUS Radar

I'l go with Number 2 for Yee.

Yes I know what i said.

 
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