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

Did you get a new video game for Christmas?:

Shout box

You're not permitted to post shouts.
MaskedPixelanteI can't believe Kenji Yamamoto got another job. Then again, his job on Smash was "musical arrangment", so copying other people's work is right up his alley.12/26/2014 - 9:31pm
Matthew Wilsonthe company that hosts it is a cyber security firm, and from what I understand it is the data they they see just shown publicly.12/26/2014 - 8:22pm
Wonderkarpa question about that website, Matthew...how does it know its a cyberattack or not12/26/2014 - 8:06pm
Matthew Wilsonfor those intreasted in seeing cyber attacks in real time check out this site. http://map.ipviking.com/12/26/2014 - 7:51pm
PHX Corp@MP you can add me on XBL and Nintendo Network if you want, I go under TrustyGem(Same gamertag as on Steam)12/26/2014 - 2:01pm
CMinerI blame North Korea.12/25/2014 - 11:49pm
MechaTama31For the last few weeks, the GP site fails to load about 2/3 of the times I try.12/25/2014 - 11:13pm
MaskedPixelanteOK, is GP having trouble loading for anyone but me?12/25/2014 - 9:21pm
Matthew Wilsonits a bunch of script kiddies. ddosing is one of the easiest thing to do,and most companies can not stop it sadly.12/25/2014 - 5:05pm
MaskedPixelanteI like Nintendo as much as the next person, they're pretty much the only company putting out the games I want to play, but that was pretty embarassing to have NNID go down due to overuse.12/25/2014 - 4:35pm
MaskedPixelanteSee? It's NOT a repeat of last year's fiasco.12/25/2014 - 4:22pm
PHX CorpLizard squad is responsible for The XBL/PSN shutdown https://www.youtube.com/watch?v=QSpZvsoWvig12/25/2014 - 4:17pm
IanCOh shut up bitching about Nintendo. At least they advised people to downloading updates before the big day. Sony/MS? Not a peep.12/25/2014 - 3:50pm
MaskedPixelanteBoth PSN and Xbox Live are down. Since I'm sure Sony and Microsoft have better online support than Nintendo did last year, this isn't from "everyone logging onto their new devices all at once".12/25/2014 - 3:48pm
prh99John Romero's Christmas present, a custom Icon of Sin sculpture. http://www.pcgamer.com/john-romero-gets-the-icon-of-sin-for-christmas/12/25/2014 - 3:37am
Matthew Wilsonthe interview will be on youtube/xb1/ andriod today.12/24/2014 - 1:05pm
james_fudge1900's?12/24/2014 - 12:56pm
james_fudgeYeah we could go way way back :)12/24/2014 - 12:56pm
E. Zachary KnightCopyright law in general has been broken since at least 1976. Could be even earlier than that.12/24/2014 - 12:24pm
james_fudgeWhat he said :) They want to make it worse than it already is.12/24/2014 - 12:14pm
 

Be Heard - Contact Your Politician