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 :

Shout box

You're not permitted to post shouts.
benohawkI hope the new ghostbusters is good regardless, but I also expect it to have to surpass the orignal for people to acknowledge that.08/03/2015 - 1:37am
benohawkMecha, those changes are also some of the bigger complaints I've heard about the Abrams Star Trek movie.08/03/2015 - 1:35am
MechaTama31https://www.youtube.com/watch?v=vU_D96AdK0M <-- Letterman interview with Bill Murray, he seems to have a similar opinion to mine about the pink-slime movie.08/02/2015 - 11:27pm
MechaTama31I don't think it's as big a deal as you think, matts. After all, JJ Abrams' Star Trek removed the original cast (mostly) and changed the formula significantly. If the movie is enjoyable, people will enjoy it.08/02/2015 - 11:23pm
MattsworknameDoc: Hope he recovers soon.08/02/2015 - 7:49pm
Matthew Wilsonhttp://www.pcgamer.com/what-directx-12-means-for-gamers-and-developers/#page-1 by Peter Thoman, and better known by the name Durante. he talks about dx12 in detail08/02/2015 - 7:45pm
DocMelonheadIGF's Chairman resigns due to cancer: http://igf.com/2015/07/letter_from_the_chairman_so_lo.html08/02/2015 - 6:46pm
Matthew Wilsonit wont let me update it, so the title is Tifa's Breasts Too Big for the FF7 Remake?08/02/2015 - 6:14pm
Andrew EisenRemember, when linking videos, please tell us what it is (title usually words) in addition to who it's from.08/02/2015 - 6:05pm
Matthew Wilsonhttps://www.youtube.com/watch?v=HxVv7pbqXvY a interesting video video by Gaijin Goombah08/02/2015 - 4:54pm
MattsworknameInfo: Well thats something at least08/02/2015 - 3:04pm
Infophile@Matt: Apparently Dan Aykroyd actually is involved. We don't know how yet, though, but he's apparently going to be in the movie in some way.08/02/2015 - 4:17am
MattsworknameI still hold that not having the origonal cast invovled in any way hurts this movie, and unless the 4 actresses in the lead roles can some how measure up to the comic timing of the origonal cast, i just don't see it being a success08/02/2015 - 12:46am
MattsworknameMecha: regardless of what you think of it, GB 2 was a finanical success and for it time did well with audiances ,even if it wasnt as popular as the first08/02/2015 - 12:45am
MechaTama31I think they're better off trying to do something different, than trying to be exactly the same and having every little difference held up as a shortcoming. Uncanny valley.08/01/2015 - 11:57pm
MechaTama31Having the original cast didn't do much for... that pink-slimed atrocity which we must never speak of.08/01/2015 - 11:56pm
MattsworknameAndrew: If the new ghostbusters bombs, I cant help but feel it'll be cause it removed the origonal cast and changed the formula to much08/01/2015 - 8:31pm
Andrew EisenNot the best look but that appears to be a PKE meter hanging from McCarthy's belt.08/01/2015 - 7:34pm
Matthew Wilsonwhy, let me guess it runes like crap?08/01/2015 - 7:29pm
Andrew EisenInteresting. These throwers are different than the ones we saw in the earlier Ghostbusters prop pics. https://twitter.com/feigfans/status/62754147689817702508/01/2015 - 7:28pm
 

Be Heard - Contact Your Politician