Moot Court Renders Schwarzenegger v. EMA Opinion

September 27, 2010 -

Last month we told you that the Institute of Bill of Rights Law (IBRL) at William & Mary Law School would offer a mock trial of the Schwarzenegger v. Entertainment Merchants Association case, which is scheduled to go before the Supreme Court on November 2.  Well, the Moot Court held its version of the event over the weekend, and gamers will have to hope that the result does not foreshadow the verdict that SCOTUS eventually returns.

The mock trial included participants such as USA Today’s Joan Biskupic, The Wall Street Journal’s Jess Bravin, the New York Times’ Adam Liptak, University of California, Irvine School of Law Dean Erwin Chemrinsky, Jeffrey Sutton from the U.S. Court of Appeals for the Sixth Circuit and U.S. Department of Justice Deputy Assistant Attorney General Beth Brinkman.

An interested party attended and provided GP with a snapshot of what happened. The attendee is a student, but indicated that he understood the ESRB rating system better than any of the Moot Court participants. The only game brought up during the proceedings was Postal, which was mentioned several times, with an emphasis placed on the game’s ability to let players kill children and pee on corpses, “with the implication that other video games have similar content.”

The attendee felt that this negative misperception of games, driven by the lone example of Postal, eventually led the court to its opinion, which was a 6-3 vote in favor of Schwarzenegger and California.

Comments

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Here's an article from William & Mary's school paper about the event and the Moot Court. It sounds like California's advocate was actually able to convince the panel that video games were not speech. And as for the last sentence, I'm assuming the writer meant that the panel voted to reverse the lower court's decision.

flathatnews.com/content/74117

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

“Video games are not pure speech, as a general matter,” Morgan Lewis [sic], Supreme Court lawyer and mock-advocate for the state of California, said. “Parcheesi is not speech; a basketball is not speech.”

Yeah, buddy, an apple isn't an orange, either. Despite the functional equivalent of your comparing one to the other.

Even California's unwilling to make that ridiculous an assertion. That vidoegames are speech is about as well-settled as the dust on the top of my refridgerator. 

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Apparently it was a CLE symposium they did. I'm going to see about ordering a copy of the moot court presentation.

I also expect to have a story in the next couple days relating to this.

-- Dan Rosenthal

-- Dan Rosenthal

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Also, who was presenting the arguments? If it was W&M law students, this could be a required advocacy course, and the panel rendering the decision based on who made the best argument, not their own personal views of the merits.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Which raises the question:

If it was solely on the presented merits and, as most every poster here has opined, the weight of the authorities so clearly lies on the side of the Respondents, how in God's name did the Petitioner's side come out ahead? That's the equivalent of taking a turd and turning it into gold bullion.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Is there any way to see who on the panel voted which way, and the opinions they wrote, if any?

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

I am reaching out to William and Mary to find out.

-- Dan Rosenthal

-- Dan Rosenthal

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Also note that the people rendering the judgement don't have to worry about setting precedence. They were arguing "Should violent games be sold to children." Not "Does the government have the authority to restrict the sale of violent games to children."

Pretty much, it's a slam dunk that children shouldn't play Postal, heck GTA-X, or any other rated M game. That isn't up for discussion. The problem comes up with the "no law means no law" statement. Can the governments (state or federal) restrict the sale of non-pornographic media to minors?

Right now, I still see it as a slam dunk simply because everyone favoring the law seems to be relying on emotional arguments (Tink ov teh HCILDREN) why the opposing forces are using legal arguments (in a court of law!) and statistics (may be one of the three kinds of lies, but these are fairly strong statistics). If ANY group in our government should be immune to BS emotional arguments, it would have to be the Supreme Court.

Reduction of violent crimes by minors and the fact that the industry is self regulating better then any other industry both indicate that no further steps need to be taken.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

So the "moral guardians" lie their heads off to get what they want.

What a complete and utter non-shock.

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

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: Moot Court Renders Schwarzenegger v. EMA Opinion

I have to kind of side with JDKJ's warning (if sometimes snarky) tone on this one.

Some folks here are saying "this just point out how little this panel knew games"...but don't forget...the Supreme Court justices are all 60+ and probably don't know/don't like/don't care one whit about games either. 

I've said all along this case was no slam dunk for EMA...I hope I'm wrong, but this is an ominous sign.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

I'm not entirely oblivious to the accusation that I can be snarky. However, I prefer to see it as the result of my being both smart and having the trendency to be an ass and, therefore, when both characteristics manifest themselves simultaneously, a smart-ass. 

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Haha, fair enough.  :)

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

The fact that they only brought up only one game should have already been a clear indication that the mock trial have no ideal about gaming in general. At lease in previouse real trials invo,ving game there people that know more about gaming then these guys.

http://www.magicinkgaming.com/

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Wow.  You'd have to be a special brand of incompetent to lose this one.  Of course, maybe the six who cast their vote for CA are the hopelessly incompetent ones.

 

Andrew Eisen

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

How so? Are you suggesting that there's absolutely no precedent that would support a majority finding in favor of California? Or that even if there is a complete lack of precedential support, the majority's not entirely free to set its own precedent? Eggs and the hatching thereof. You know the rule, Mr. Eisen.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

 Thing is, california barely has a case as it is. The studies that support them are flawed in numerous ways, and think there are even studies that go against their findings. Furthermore, the progress the ESRB has made ON THEIR OWN makes such laws as these rather useless. And then their are the kinds of arguments that the AG are making which is what negative laws and rulings could come of this case; not to mention the difficultly of enforcing such laws.  

The law can lead to serious negative impact, its unnecessary, and there isn't even any real sound science to support the law.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

The flaw in that analysis is that, as I understand situation, California has asked the Court if it is required to having scientific evidence of causation. If the Court answers that question in the negative, then who cares about a study thereafter? The whole study issue then becomes a non-issue.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Sadly, that is true.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

I believe it is also true that the second issue that California has presented for the Court's consideration is whether or not it must satisfy strict scrutiny (which is, if you ask me, their way of begging the Court to apply the much less stringent rational basis test). If the Court decides that the rational basis test (i.e., the staute need only be "rationally related" to a "legitimate" government interest) is appropriate, then all that "narrowly tailored" and "least restrictive means" stuff goes out the window, too.

And the very analogous Ginsburg case (sale of pornography to a minor) provides a large peg on which that particular hat can indeed be hung.  

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

I wouldn't call Ginsberg a "very analogous" case, despite California trying to make it look so. Ginsberg dealt with sexual material, which has always been viewed differently than violence. California is trying to take the square peg of violent material and jam it into the round hole of obscenity.

 

 

A case that serves as a much better example is ACLU v. Ashcroft, the Children's Online Protection Act, preventing websites from knowingly allowing minors to view pornographic material. Kennedy wrote the majority opinion striking the law down, and was joined by Thomas, Stevens, Souter, and Ginsburg. Rehnquist, Scalia, O'Connor, and Breyer dissented. The heart of the matter was that even though it was aimed specifically at protecting children and distribution to minors, that adults would be hampered from viewing constitutionally-protected material, and less-restrictive means (filtering software) were available.

 

Four Justices from that case are gone, but let's look at the replacements:

O'Connor-->Alito. No real change there. Expect to side with California.

Rehnquist-->Roberts. Issued the majority opinion in US v. Stevens, generally seen as protective of free speech. Not guaranteeing he will side with us, but he's not as far right as Scalia.

Souter-->Sotomayor. This is a wild card. She has had very few First Amendment decisions, but her overall ideology is seen as not too different from Souter, who has a good First Amendment record.

Stevens-->Kagan. The biggest mystery of all. Some of her writings like the Improper Government Motive doctrine suggest she would be open to upholding this law, but some Clinton-era emails suggested she believed such a law would be unconstitutional.

The opinions of Kennedy, Thomas, and Ginsburg here will be very helpful to us, especially Kennedy. And here's a chart and article showing Justices' adherence to the First Amendment. It's already old (going up to 2001), but interesting nonetheless.

http://www.law.ucla.edu/volokh/howvoted.htm

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Think about this: of the four Justices that retired since ACLU v. Ashcroft, two were in the majority(Souter & Stevens) and two were in the dissenting(O'Connor & Chief Justice Rehnquist).

I dunno, I think it ends up 6-3 in favor of EMA/ESA(Kennedy, Chief Justice Roberts, Thomas, Sotomayor, Kagan, & Ginsburg).

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: Moot Court Renders Schwarzenegger v. EMA Opinion

I disagree. If Scalia get a stiffy for upholding, he'll convince Thomas to side with him. His argument will be along the lines of: "Now, come on, Clarence. Work with me on this. Don't forget the days when your ass was fresh off that mauling you got before the Senate Judiciary Committee and you came here not knowing your own ass from a hole in the ground and it was I, your Uncle Tony, who took you under his wing and told you how to vote. Shit, remember that dissenting opinion I wrote for you because you couldn't string five words together to make a sentence back then? You owe me, Clarence, and it's payback time. You're going along with me on this one."

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Scalia probably said all that bullshit when ACLU v. Ashcroft came up and Thomas probably told him to go pound sand and went against Scalia then, realizing that his seat on the SCOTUS bench is for life(kinda like that sketch on In Living Color, Season 3, Episode 3).

Besides that, if California wins(still a pretty big if regardless of what this panel of Monday morning quarterbacks says), then I hope Arizona and Nevada receives ocean front property.

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: Moot Court Renders Schwarzenegger v. EMA Opinion

To which Scalia will respond, "I ain't playing with you with this time, Clarence. You better damn well do as I say or I'll tell your wife that we were at my house getting shit-faced on scotch and sodas and you confessed to me that the only work you ever did at the EEOC was trying to work your way into Anita Hill's pants because even though you married over to the other side, deep in your loins you still preferred the dark meat. Think I'm bluffing? Try me."

Fun and jokes aside, Ginny Lamp Thomas is about one crazy right-wing cuckoo. But for the fact that it would reflect poorly on Clarence, you'd probably see her at each and every Tea Party rally on the Hill, dressed up as the Statue of Liberty. And I ain't joking. I'm dead-ass serious. 

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

That's about the breakdown I got, at least up until today, when this panel's decision threw me for a loop. Roberts, Sotomayor, and Kagan all have potential to help us, but I can't say for certain which way they will fall. Same with Thomas-for a conservative, he has an impressive First Amendment track record, but I won't pin all my hopes on him.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

"[V]iewed differently" by whom? Society at large or the Court? Can't be the Court, 'cause as far as I know, this is gonna be the first time that they're taking a look at videogame violence. 

And with regard to California's statute, which restricts sales of content, the facts of Ashcroft, which involved restricting access to content otherwise freely available to all, can't be as analogous as the facts of Ginsburg, which involved sales of content. Take away the "pornography" from New York's law at issue in Ginsburg and substitute "violent videogame" in its stead, and New York's law begins to read damn near word-for-word like California's law.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

It may be the first time the Court has dealt with video game violence, but they have dealt with violence in other contexts. For example, Winters v. New York, which restricted the sale of crime novels. The Court struck that law down, and held violence as distinct from obscenity.

Switching Pornography with Violent Video Game does make a huge difference, or at least it should. The Ginsberg statute made pornographic material obscene as to minors. But while Ginsberg expanded the definition of obscenity for minors, it did not say that it could be expanded beyond sexual material, and the Supreme Court has never held it to be so for minors or adults. See also Cohan v. California, where an obscenity conviction for wearing a jacket that read "Fuck the Draft" could not be considered obscene because "Fuck" in that context did not evoke any sort of sexual imagery, and obscenity must be, in some form, erotic.

Re: "Idiot Court" Renders Schwarzenegger v. EMA "Opinion"

Plus, keep in mind that California is essentially ignoring Cohen v. California and Winters v. New York in their argument.

As well, their 2nd question regarding whether strict scrunity applies to their law(which everyone so far has said "Yes, it does, motard."), they're using Turner Broadcasting v. FCC(a decision based on content-neutral law, which this piece of shit law is most definitely not) as the basis of their question.

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: "Idiot Court" Renders Schwarzenegger v. EMA "Opinion"

You are right that Cohen (my bad, it was misspelled, but then again you misspelled Ginsberg) was not an obscenity case-one question was whether the speech was "indecent," as well as dealing with the captive audience problem. But the court did make reference to the fact that this speech could not be regulated as obscenity:

"In the second place, as it comes to us, this case cannot be said to fall within those relatively few categories of instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed. This is not, for example, an obscenity case. Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic.  It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket." (emphasis added)

 

Re: "Idiot Court" Renders Schwarzenegger v. EMA "Opinion"

You may again be misreading Cohen. I understand the Court to simply say that there's no obscenity presented by the facts of the matter. Therefore, what follows is, at best, obiter dictum. If we need the Court's guidance as to what obscenity is, we should more properly look to Miller (a case that post-dates Cohen by two years) and its progeny.

Re: "Idiot Court" Renders Schwarzenegger v. EMA "Opinion"

And Miller still places obscenity firmly within the realm of sexual content. Appealing to the prurient interest and describing or depicting sexual conduct in a patently offensive way when considering community standards (and recently that has been relaxed in favor of national standards).Extending obscenity to include violence without a sexual component, even with respect as to minors, is to turn Miller on its ear.

Re: "Idiot Court" Renders Schwarzenegger v. EMA "Opinion"

Actually, the Ninth has extended it to include excretion. No shit (pun intended).

Re: "Idiot Court" Renders Schwarzenegger v. EMA "Opinion"

Well the Ninth gets overruled more than any other court, traditionally. Although last term it was overruled at a much lower rate than normal, and was in fact overruled the fourth-lowest of the circuits, so that could be a good sign for us.

Re: "Idiot Court" Renders Schwarzenegger v. EMA "Opinion"

I had to get through your second sentence before I stopped asking myself, "Why does he think that wouldn't help the Petitioner?" : )

Re: "Idiot Court" Renders Schwarzenegger v. EMA "Opinion"

I'm feeling ya, DBX. And I ain't disagreeing with ya. I'd be among the first to say, "Of course it does, you fucking idiot." Unfortunately, it matters not if a chorus of angels descended from Heaven and starting providing background harmonies. The only voices that count when all is said and done are those of the nine black-robed brethen (or is that "brethen and sistren" now that there are women on the Court?). 

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

If I can assume you mispelled Cohen, that case didn't have a damn thing to do with obscenity. Cohen was arrested for distrubing the peace by offensive conduct. (C.P.C. Sec. 415). And in stricking Cohen's conviction, the Court didn't come within a country mile of obscenity. Indeed, the common quote from that case is "One man's vulgarity is another man's lyric." (emphasis supplied). Not to be a smart-ass, but you may wanna closely re-read Cohen. It doesn't at all say what you say it says. 

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

I hope the game industry will tell about how this law will lead to games being blacklisted form stores affectivly banning it for having an adult rating.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

 I don't think that's an argument the court would take too seriously. Afterall there is nothing really unconstitutional about a self-imposed ban. I'd be more worried about this law creating the precedent for more serious laws. If this law passes then it creates the precedent that video games ARE harmful to children... and if video games ARE harmful to children then why should the state allow them ANY access to these games even WITH parental permission. Or to take it a step further, many of these FLAWED studies are not just done on children but on adults aswell; you could actually make the argument that games are harmful to ANYONE and build a case for a ban on that. I should also point out that there is no study that makes games worse than movies, and thus any law applied to games off such flawed notions of harm could be extended to other forms of media. That is the kind of chilling effect I would think the court would take into consideration when it came time to decide this; particularly in the case of whether they should allow laws like this one to pass when their is no scientific evidence to support it.

I think even the AG of utah has said that he would support the law IF the evidence existed and it does not... 

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

If you're referring to the alleged chilling effect of this law, seeing as how that point is brought up in every single brief and argument I've read, I'd say it's a good bet that it will be mentioned at some point.

 

Andrew Eisen

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Did I make a prediction?  No, I did not.  I merely said that anyone siding with CA is a hopeless incompetant and suggested that as long as the justices are not mind-numbingly stupid, there is no excuse for losing to CA.

To specifically answer your questions though: no and no.

 

Andrew Eisen

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

You ain't being snarky, are you? 'Cause you should know by now that you don't want to set it off and being snarky's a sure-fire to do so. Betta chickity-check yourself. 'Fo you rickity-wreck yourself. 

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

What I want to know is, did this outcome come about just because of bad advocacy on the side of the ESA/EMA, or did the members of the panel have their minds made up coming into the argument? While the first problem can be corrected with heavy-hitters and experienced Supreme Court advocates, the latter will present a huge problem.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

As much as they like to present themselves during confirmation hearings as entirely impartial and their minds as some sort of tabula rasa, I believe it's naive to think that any judge, from the ones taking night court first appearances and bail applications to the Supreme Court Justices, don't to some extent or another bring their personal prejudices to the job. That's just human nature, in my opinion. Not to say that those prejudices can't be overcome with good advocacy and force of precedent, but something's gotta explain why Black and Browns don't commint 85% of all crimes yet make up 85% of all prison inmates.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Once again, I agree.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

I'm tempted to re-raise the comparatively dumb-ass and inconsequential issue of press releases, just so you and I can have a point of contention. : )

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

I'm not too suprised, as I expect the SCOTUS to rule in favor of California.  The generation gap is going to be much more of a factor than most people expect.  The decision makers in this affair are most likely totally unfamiliar with games and still see it as "for children".  

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

I've said it before but -- since it ain't costing me nothing -- I'll say it again:

Don't nobody should rush to conclude that the matter's a slam-dunk for the EMA/ESA.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

well, that is what happens when you have a trial in which no real life evidence and briefs are used in a ruling. When your trial consists of nothing more of a Jr high debate class and a single game as "evidence" of course you can expect a poor ruling.

The true SCOTUS case will be far from anything like this mock trial.

E. Zachary Knight
Oklahoma City Chapter of the ECA
http://www.theeca.com/chapters_oklahoma

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Did you not see who some of the panel members were? When you've got a law school dean, a federal judge, and a lawyer-journalist who's covered the Supreme Court for as long as I can remember, we can probably assume that those folks know a little sum-sum about First Amendment jurisprudence and need not heavily rely on what some 2L law student's telling them.

And I wouldn't underestimate the importance of oral arguments while overestimating the importance of written briefs. Counsel can put all sorts of bullshit in a brief (in fact, California's done just that with their misrepresentation of research findings). It's often at the orals that the bullshit either stands or falls. The pen is mightier than the sword but the tongue is mightier than both.  

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Not just any law school dean. Erwin Chemerinsky, the nation's preeminent constitutional law scholar. He literally wrote the book on the Constitution, and the hornbook, and the supplement, and the treatise....if anything I would want to know which way he went on this.

Judge Sutton, from a cursory look, seems like he'd be one of the ones in favor of California -- Bush appointee, clerked for Scalia IIRC. But that's just a brief guess, I could be dead wrong on that.

-- Dan Rosenthal

-- Dan Rosenthal
 
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