Students Grant Win to Game Industry in Schwarzenegger Case Sim

October 26, 2010 -

Students at the California Western School of Law (CWSL) staged a simulation of the Schwarzenegger vs. EMA case last week and ultimately, issued a ruling in favor of the game industry.

CWSL Professor Glenn Smith, organizer of the event (pictured), discussed with GamePolitics the unique approach he and his students adapted for the simulation—each student assigned to play the role of a Supreme Court Justice conducted “substantial research” into a particular judge’s past case decisions, writings and speeches in order to more effectively immerse themselves into the role.

The students, according to Smith, were assigned to “ask questions at oral argument and then decide the case as their justice would, not as they personally would.”

Oral arguments were presented last week, but the students playing SCOTUS Justices met yesterday for a “simulated case conference” in order to render their verdict, which came out 8-1 in favor of affirming the 9th Circuit’s ruling that the law was invalid.

Smith offered that the affirming student justices agreed that “the California law was content-based regulation of protected speech requiring the State to meet the two ‘strict scrutiny’ tests.” Two of the justices held that California had met the first test “by having a ‘compelling interest’ in protecting minors against video-game violence.”

The other six justices “would either find the evidence of a link between video games and violence inadequate or simply punt on this issue.” The eight majority justices agreed that the California law wasn’t “narrowly drawn” and was “substantially vague.”

In closing, Smith, who expects the real Supreme Court decision to be much closer than the result his students returned, offered the following summation to GP:

If the students turn out having overstated the "real" Court's support for free speech, that will just indicate that it was harder for the students to "check their own views" at the conference door for this case. First, they have absorbed well the lessons we Con Law professors teach about the primacy of freedom of expression.  Second, there's probably an interesting generational issue -- with my students much more game-friendly and tech-savvy than the Justices are likely to be.

In September, the Institute of Bill of Rights Law (IBRL) at William & Mary Law School hosted their own Schwarzenegger vs. EMA reproduction, which resulted in a 6-3 vote in favor of the California law.

Comments

Re: Students Grant Win to Game Industry in Schwarzenegger ...

Ill take a guess.

The thing that makes this case hard to call is the fact that its a state law and that may make the conservatives more likely to vote for it. If it was a federal law it'd lose 9-0 imo.

Likely to vote for the Calif law: Thomas, Alito (because of "states rights" and a narrow/conservative interpretation of free speech).

Lean for: Scalia (same reason)

Likely to vote against: Ginsburg, Kennedy (both always good on free speech/artistic expression)

Lean against: Roberts, Breyer, Sotomayor, Kagan (Breyer decent on free speech, Roberts potentially good, Soto and Kagan not on court long enough to know but both seem likely to be "liberal" on artistic expression)

Final predict: 6 to 3 against Calif law
 

Re: Students Grant Win to Game Industry in Schwarzenegger ...

I would switch Thomas and Breyer. Thomas is the second-most likely to side with parties arguing a First Amendment violation (CNN has called him a First Amendment absolutist, which I don't agree with, but he's still proven himself well on this issue), and Breyer is the least likely to do so.

Re: Students Grant Win to Game Industry in Schwarzenegger ...

I dont know why theyd call him a 1st Amend absolutist, probably because its cnn and they dont know what theyre talking about.. He voted against nude dancing (that was a terrible decision), against cross burning, against "bong hits for jesus",... 

There is no 1st Amend absolutist on the supreme court anymore. There use to be judges that were really good in the past: Marshall, Brennan,.... There were 4 judges that even voted against the obscenity law. You'd get no votes against that today (maybe Ginsburg). Thats how much more conservative the court is today.

Breyer is a compromiser and Im not confident about him. Im not confident about any of those I have mentioned as leaning against. They could go either way. But I think they lean at least a little against the law, and I guess thats what Im hoping as well.
 

Re: Students Grant Win to Game Industry in Schwarzenegger ...

Cross-burning I could see (I wonder how the Jewish justices voted in the Skokie case-it must have been a hard decision for them). For the Bong Hits 4 Jesus case...that's where Thomas is wacky on the First Amendment. He says that students in public schools have no First Amendment rights at all, since in our nation's history and our roots in England, public schools replaced private tutors, and thus, he considers them to act in loco parentis with the rights to discipline and control children that their parents would have. He had said he would overturn Tinker v. Des Moines if given the chance.

As for Marshall and Brennan, Brennan wrote the majority in Ginsberg, which Marshall joined. The absolutists were Hugo Black and William O. Douglas, both of whom dissented in that case.

Re: Students Grant Win to Game Industry in Schwarzenegger ...

I knew that about Brennan, I didnt know that about Marshall but it doesn't surprise me. He normally voted the way Brennan did. I still think they'd be better than what we have on the court today.

Thomas voted against "fleeting expletives" on tv too. He really is not very good on free speech, imo.

Having researched a little. I now think Breyer is better and Kennedy is worse than I thought.

Im still not sure what will happen , but my guess now would be the 4 liberals vote against he law and the 5 conservatives could go either way. The odds are good imo that it loses though.
 

Re: Students Grant Win to Game Industry in Schwarzenegger ...

Thomas has also said he would overturn Pacifica, which California relies on to an extent.

Kennedy is actually the most likely to side with people claiming First Amendment violations (again referred to as an absolutist, but I say not quite). He wrote the majority in Ashcroft, too. And he is critical; it is next to impossible for any side to win a case without him.

I'm predicting (and hoping of course) that the votes break down the same way as in Ashcroft, with Roberts possibly joining our side.

Re: Students Grant Win to Game Industry in Schwarzenegger ...

Kennedy voted against fleeting expletives, against nude dancing, against bong hits.... So I really dont see how he's that great. His free speech record is mixed imo. 

Re: Students Grant Win to Game Industry in Schwarzenegger ...

Indeed; Thomas has been pretty consistent in First Amendment issues, and those are the ones he's broken most frequently with Scalia on.  The "heh heh, he likes porn" jokes are low-hanging fruit -- especially given the rather bizarre return to his confirmation hearings in the news -- but at any rate he's shown before that he doesn't buy the argument of limiting adults' access to content in order to protect children.

Re: Students Grant Win to Game Industry in Schwarzenegger ...

Interesting and I hope its prognostic, but we'll see.

Re: Students Grant Win to Game Industry in Schwarzenegger ...

I would also guess the dissent to represent either Scalia or Alito. That being said, I expect them both to side with California, along with Breyer. Roberts is in a gray area, but it's certainly possible we can get him on our side.

Re: Students Grant Win to Game Industry in Schwarzenegger ...

If videogames win, I look forward to hearing all the rhetoric that will be coming out of the supporters of the law. Look out for things like:

"Activist Judges!"

"The court has taken a stand against families!"

"The court is on the payroll of the Videogame Industry!"

"Parents now have no way of preventing their children from playing these terrible games!"

"The Founding Fathers would be against these games!"

"The Liberal Court did this because they want to put violent and sexual games in the hands of children!"

"The Conservative Court did this because they only cater to the whims of Big Business at the expense of the children!"

"This is all George Bush's fault!" :)

"These Judges have struck a major blow against the Christian values this country was founded on!"

 

...and so fourth.

Re: Students Grant Win to Game Industry in Schwarzenegger ...

I'll will not only look forward to that But laugh in thier faces

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: Students Grant Win to Game Industry in Schwarzenegger ...

So which Justice was the one dissent?

Re: Students Grant Win to Game Industry in Schwarzenegger ...

Don't know So far

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: Students Grant Win to Game Industry in Schwarzenegger ...

If the Stevens case is any indication, I'm betting Alito.  But hard to say for sure.

I've said before, I'm willing to bet Alito and Scalia both support California while Ginsberg and Thomas support EMA.  The rest are a little harder to guess -- I suggested in an earlier thread that Roberts would go California and the rest EMA, but I'm less sure about that than the other four I've mentioned.

Re: Students Grant Win to Game Industry in Schwarzenegger ...

Yes, Alito was our dissent.  Sotomayor and Kagan were more willing to assume that California has a compelling interest in the law at hand.  The rest of the justices on our simulated court wanted more evidence of harm.  Many didn't like that, if we assumed there was a compelling interest, it was not supported by the law because it didn't prevent children from playing games but simply buying.  Others focused on the statistics suggesting that 80% of the time or more parents are said to be present at the point of sale, meaning the law is only really preventing a small amount of the perceived harm. 

I have detailed notes from the case conference in question although I think certain students had an easier time determining the position of their justice on the issues than others.  That is me as counsel for petitioner in the above picture.

Re: Students Grant Win to Game Industry in Schwarzenegger ...

If thats true about Sotomayor and Kagan, then Obama will have been a complete disaster as President. But I dont see any reason to think that would be. Ive read a lot about both and I really didint get a good idea of how either of them might vote on 1st Amend cases. So i dont see where youre getting that at. Kagan has written a lot about the subject but has been pretty careful not to let on exactly what her philosophy is. There is reason for concern though. Sotomayor is almost a total mystery.

We wont know what their judicial phloslophy is until theyve been on the court several years.

Re: Students Grant Win to Game Industry in Schwarzenegger ...

EDIT: So you had the unfortunate task of arguing for California. You say you expect the real decision to be closer, do you have any predictions on the actual outcome?

Did you argue the Ginsberg v. New York variable obscenity/rational basis standard? Hopefully that went over like a lead balloon.

Also, who wrote the majority opinion? (if it's Kennedy, that's a good sign for us).

Re: Students Grant Win to Game Industry in Schwarzenegger ...

I did have to argue for petitioner and it was quite a daunting task.  I was totally nailed on my lack of support for the position that games harm minors.  I focused more on the arguments made by state attorney generals in support of the law.  They argued that the standards should be more relaxed because the law only applies to minors and doesn't burden adult speech.  I didn't think I could argue the studies California uses with a straight face so I mostly ignored them.  

I believe our chief justice Roberts decided to write the majority in our class.  The student acting as Chief Justice Roberts decided that he should write it because Roberts wrote the majority in Stevens and a few other First Amendment cases.   

I'm not sure exactly where my classmates got their positions as Kagan and Sotomayor but I suspect that they found some writing where the justices expressed a willingness to expand the ginsberg obscenity test.  The person who played Kagan mentioned the brief filed in Stevens from the solicitor general arguing for a balancing test and expanding obscenity.  

Re: Students Grant Win to Game Industry in Schwarzenegger ...

It sounds like the Kagan and Sotomayor decisions were more like concurrences than votes with the majority.

It would be hard to determine exactly where those two would be. There is very little First Amendment record for Sotomayor and none at all for Kagan outside her law review articles.

Re: Students Grant Win to Game Industry in Schwarzenegger ...

Thanks so much for coming by and elaborating, Sirusjr; it's great getting more information from somebody who was there.

"I was totally nailed on my lack of support for the position that games harm minors." -- love it; let's hope that's the way it plays out in the real court.

Re: Students Grant Win to Game Industry in Schwarzenegger ...

That answered my question. It did end up similiar to US v. Stevens.

There is a slight possibility that Scalia could end up siding with EMA/ESA, as keep in mind that Scalia voted with the majority and sided with Johnson in Texas v. Johnson(ruling that burning the American flag was constitutionally protected free speech/free expression). Might not be likely, but still a possibility.

Edit: Another note: Kagan has written that the SCOTUS decision in the flag-burning case was correct.

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. Even through the darkest days, this fire burns always.

Re: Students Grant Win to Game Industry in Schwarzenegger ...

Oral arguments were presented last week, but the students playing SCOTUS Justices met yesterday for a “simulated case conference” in order to render their verdict, which came out 8-1 in favor of affirming the 9th Circuit’s ruling that the law was invalid.
 

That's Good news I wanted it to end up like US v stevens Where 8 Justices Pretty much say Shut up california, This has been Tried in every court case enough already)

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: Students Grant Win to Game Industry in Schwarzenegger ...

A little surprised by the 8-1 vote(I have stated that it would more likely be 6-3 in favor of EMA/ESA).

I wonder how each student/Justice voted(like which Justice they felt was likely to dissent and if the vote ended up similar to US v. Stevens)?

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. Even through the darkest days, this fire burns always.

 
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