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.
Matthew Wilsonhttps://twitter.com/NintendoAmerica/status/581579256704081920 for those who did not see it zelda wont be at e3 ether.03/28/2015 - 2:22pm
ZippyDSMleeGot my keyboard working now now trying to sort and customize my stuff back to where I had it.03/28/2015 - 2:03pm
InfophileSony's customer service has always been crap, but up till now it's been manageable crap. A few cases of people having to pay for being hacked at worst, the Other OS removal... This one is going to be much worse for them.03/28/2015 - 1:34pm
WymorenceWhen did Sony start doing the ransomware stuff...? other than the old BMG rootkit stuff that is.03/28/2015 - 12:45pm
ZippyDSMleeother keyboards work but my keyboard will not work on it works on all the laptops tho...03/27/2015 - 11:22pm
ZippyDSMleeComp crashed acouple days ago and ate my keybaord drivers worse yet it's mislabel the drivers or hardware ID or soemthing and can not install the right drivers even manually it gives errors... going to try another restore point....03/27/2015 - 11:18pm
PHX Corphttp://ps4daily.com/2015/03/ps4-update-bricks-gamers-console-sony-wants-150-to-fix-it/ New PS4 update bricks gamers’ console, Sony wants $150 to fix it03/27/2015 - 11:11pm
MaskedPixelantehttp://www.newsarama.com/23947-axel-alonso-says-x-men-will-have-new-world-post-secret-wars.html Marvel gives 20th Century Fox the finger, takes their ball and segregates the mutant population in their own universe. According to rumors at least.03/27/2015 - 10:21pm
Papa MidnightSure thing!03/27/2015 - 9:00pm
Andrew EisenPM - Thanks, I've updated the story.03/27/2015 - 8:59pm
Papa Midnighthttp://arstechnica.com/tech-policy/2015/03/13-year-old-minecraft-player-confesses-to-swatting-police-say/03/27/2015 - 8:38pm
Andrew EisenThat would mean either Nintendo's next home console will be out by next year or the next Zelda game is suffering a two year delay. Both extraordinarily unlikely.03/27/2015 - 8:34pm
Matthew Wilsonsome people are thinking we might have a Twilight Princess situation on our hands, what do you guys think?03/27/2015 - 8:01pm
MechaCrashMiyamoto once said "a delayed game is eventually good, a bad game is bad forever." While this can be taken to excess, it is good that Nintendo remembers it.03/27/2015 - 7:44pm
MaskedPixelanteYay for it not being a buggy mess like AC Unity. Boo that it got delayed til November 2016.03/27/2015 - 7:07pm
Andrew EisenAgreed. Considering we've seen nothing of the game (and those who did see it last E3, said it was super duper early) I would be quite surprised to see it this year.03/27/2015 - 5:28pm
Matthew WilsonI am sure star fox is 2016 too.03/27/2015 - 5:14pm
ZippyDSMleeThe primary reasons I would get a Nintendo system is Zelda and Metroid, Metroid prime collection was beyond words awesome even if 3 was the weakest one. I played TWP on the emulator I have Skyward Sword but like TWP I been putting it off…. LOL03/27/2015 - 5:14pm
Daniel LewisI actually thought star fox would be the game to be delayed,hopefully that isn't as well!03/27/2015 - 5:13pm
Daniel Lewiswoah post shared at the same time matthew,you just beat me!03/27/2015 - 5:11pm
 

Be Heard - Contact Your Politician