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

Chemerinsky also taught the Con Law section of my BarBRI course. He's also very left-leaning, however, to the point where Republicans planned a massive filibuster at the mere mention of his name being appointed to the Ninth Circuit.

 

As for Sutton, his circuit has James v. Meow Media, which discredited the connection between video games and real-life violence, and dismissed the case of the Paducah victims. I don't know if anyone brought that case up, but I'm sure he's aware of it.

And which Bush appointed him? I or II?

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

While the caution is well-placed, the mock trial likely didn't include many arguments and opinions from games industry advocates. The case before SCOTUS will have a lot more debate and deliberation on various other titles and other considerations.

I take this as a good example of how a court case on video games would turn out if we didn't stand up for our hobby. Lesson learned: take action on your own behalf or the uninformed will do it for you.

Looking forward to the case before SCOTUS. This is history in the making.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

I dunno 'bout that. The hearing of oral arguments is schedule for no more than a hour, with each side having slightly less than 30 minutes to present their arguments. And if Scalia, as he's been known to do, decides to turn it into Pop-Quiz Day, and starts asking counsel his famously flustering questions, then they'll have even less time to present their case.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Oral arguments are not the full brunt of what SCOTUS will be reviewing. That is why a ruling will not come til sometime next year. They will hear the oral arguments for an hour and then review and discuss the briefs submitted where the meat of the case is contained.

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

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

I agree if anything "rescues" this case it will be the briefs.  I think the ones by the industry itself and other media industries will not be terribly persuasive.

Most persuasive I think will be the AGs brief, the first amendment scholars brief and the brief of social/medical/media scholars.  To some extent there's tit-for-tat going on with briefs on both sides, but perhaps even if the justices see there's at very least still much debate about effects in the scholarly community...as well as debate among law enforcement...that may be enough for the justices to lean conservative on this.

 

But it comes down to...the justices can use...or ignore...whatever they want.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Really? Not persuasive on what basis? I found the industry's brief to be quite well written from a Supreme Court litigation perspective. There's a specific way these things have to be written, and it's not always to try and prove your point; sometimes it's about addressing the justices concerns that you predict will be raised, or to respond to an argument in opposing party's brief.

 

-- Dan Rosenthal

-- Dan Rosenthal

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Not to speak for Avalon, but perhaps for no other reason than the greater the financial interest an amicus party has in the outcome of a case, the more likely it is that their arguments will be met with some amount of scepticism -- without regard for whatever that argument may be -- because they're obviously self-interested. On the other hand, the arguments of the law geeks from academia with no financial stake in an outcome either way are less likely to be greeted with scepticism -- again without regard for the actual substance of whatever their arguments may be.

It's like a non-party witness at trial who nevertheless has a financial interest in a particular outcome. Any opposing counsel worth his salt makes that financial interest clear to the jury and plants the seed in their minds that the witness, motivated by the possibility of financial gain, is more than willing to get on the stand and say anything - whether true or false - in order to secure that financial gain.   

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

That was precisely my point.  Well informed briefs from third parties without any financial interest in the case may carry particular weight.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Look, man, all this being in agreement with each other is becoming boring for an ol' contrary coot like me. Can we find something - anything - on which we can disagree? How about between pro-life and pro-choice you pick one, and I'll take whatever's left over? 

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

"And if Scalia, as he's been known to do, decides to turn it into Pop-Quiz Day, and starts asking counsel his famously flustering questions, then they'll have even less time to present their case."

 

I'm hoping scalia Does that to California, and Not EMA/ESA. I mean he assialed the US's Animal cruelty law at the center of US v Stevens. Not to mention Saying this little Crowning moment of awsome-style gem "it is not up to the government to decide what our worst instincts are."

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: Moot Court Renders Schwarzenegger v. EMA Opinion

Yeah, but you are forgetting the perspective concervatives have on animals vs children and such.   Scalia comes from a theological background that says animals were put on earth by our creator for our use and amusement, thus he does not have the gut idea that anything could be wrong in the first place.  Social concervatives have been trying to activily roll back the clock on things like animal abuse laws already,  so using the 1st ammendement to prevent further erroding of 'freedom to do horrible things to non-humans' fits into his existing narrative.

Protecting children from non-christian values on the other hand is a long accepted first ammendment exception that fits in with his narrative too.....

It is highly likely Scalia will be hostile to the EMA/ESA....

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

I would agree with you and, for what worth you may find in it, refer you to an interview of Justice Scalia published here back in the day when Dennis was at the helm. It squarely addresses his views on the violent videogame controversy. You may find it to be a very illuminating glimpse into his thoughts on the matter. I did. It was why I wasn't at all surprised when the Court granted certiorari (indeed, I predicted against an ocean of naysayers that the Court would eventually grant certiorari). J. Scalia is therein on record as pretty much saying he'd vote to grant certiorari. And further reading suggested to me that he wasn't saying so because he was keen on stricking down restrictive laws. He didn't sound as if he'd be at all supportive of the EMA/ESA's side of the matter.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

I count on us not getting the support of Scalia, Alito, and Breyer. To me, those three are given as votes against us. THe one who will make or break the case is Kennedy. He has been in the majority opinion on over 90% of cases since the 1990's. Fortunately, he is also the most First Amendment-friendly justice, supporting free speech in roughly 75% of all cases.

Ginsburg is the only one I can predict will likely come down on our side. Kennedy, like I said, is both hopeful and necessary, but not a guarantee. Kagan and Sotomayor are wild cards, Thomas was listed as the second-most First Amendment-friendly after Kennedy (and sided against Scalia in the ACLU v. Ashcroft Internet porn case), Roberts is a better shot than Rehnquist ever was, but he's not in the bag.

In sum, I see 3 definite votes against, and we need to convince 5 out of 6 of the remaining Justices, with losing Kennedy not an option.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

You should probably count Thomas as joining with Sacilia -- as he does 80% of the time. Ol' Clarence ain't the brightest one up there on the bench. Rarely does he have the wherewithal to come up with an independent opinion.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Yes, but when he does, it's typically in cases like this.

Bear in mind, too, that Scalia was the sole dissenting vote in the case about the crush videos.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Actually, that was Alito.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

Whoops, thanks for the correction.  Bad example, then, but there HAVE been several cases -- largely along the lines of Internet porn censorship -- where Thomas has broken with Scalia and proven a swing vote.  The Long Dong Silver jokes write themselves, but I do think he's a wildcard on this one.

EDIT: As you know, as you're the one talking about ACLU v Ashcroft a few posts down.  So I'm not telling you anything new, but...well, maybe the point's helpful to SOMEBODY reading the thread.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

I could potentially see it.  I'll admit I was surprised by the way the court went on both the porn and Stevens cases.  So you never know.

I think two things:

1.) This case could go either way.

2.) The Lawyers for the ESA/EMA side need to learn from influenced the moot court and be prepared to address those issues cogently.  For instance although Postal may be a highly offensive game, few children come into contact with it.  For instance if you look through the Lenhart et al. (2008) data set of 8000+ children (freely available from the Pew Research Foundation web site), not a single one reported playing any version of Postal.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

An excellent point.  They should also hammer the FTC study saying that self-regulation is working, even better for the games industry than the movie industry.  That puts the onus back on CA's side to prove that games are distinct from films.

CA says, "Games are more corruptive than other media because they're interactive."

ESA produces documents where critics of films argued that they were more corruptive than other media because they showed moving pictures, and critics of the Sunday comics argued that they were more corruptive than other media because they were printed in color.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

I think they indeed did more or less that in their brief.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

You Forgot somthing about thomas, He said somthing about the 7 dirty words case that he will be in favor to strike it down if it goes back to the supreme court

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: Moot Court Renders Schwarzenegger v. EMA Opinion

Yikes!!! That is like saying Cannibal Holocaust is what all violent films are like. So every violent film has content similar to that movie so censorship and restrictions are allowed. Also there are NO KIDS IN POSTAL GAMES. The developers said they would NEVER put kids in ANY Postal games.

Re: Moot Court Renders Schwarzenegger v. EMA Opinion

That or The Human Centipede.  For all the word-of-mouth it got, I was surprised that no major media outlets, let alone politicians, found out about it and called for it to be banned.  I've seen it myself, and it really is an extremely disturbing film.  Although I should point out that as far as violence goes, there is very little gore (save for the surgery scene).  Rather, what makes it disturbing is the very concept itself and what is impled rather than shown.

I have the feeling, though, that ultimately the consensus would be that it should should be made available and be left up to the individual on whether or not they wanted to see it.  And I think EVERYBODY would agree that it wasn't suitable for children.

Still, I have to wonder then why movies like this get more or less a free pass, while video games that are clearly rated "M" (and apparently intended for older players and adults) and have content that , while violent, is nowhere near as distubing as what you can see in a movie like The Human Centipede, must always be questioned.

 
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