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...

 

 
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Goth_SkunkAnd just to be clear, that remark is firmly tongue-in-cheek, while also echoing statements made by those critical of GamerGate.06/30/2015 - 4:43pm
Goth_SkunkA fair point Andrew, and you are a very reasonable feminist. Though I would suggest that if you don't wish to be associated with the toxic elements present in feminism, I recommend disassociating yourself from them. Maybe call yourself something else? :^)06/30/2015 - 4:42pm
Andrew EisenGoth - By the by, you know how GamerGate doesn't like being painted with a broad brush? Well, I hate to speak for anyone but myself but I'm pretty confident in saying we feminists don't care for it much either.06/30/2015 - 4:10pm
Andrew EisenWell of course. Being a feminist doesn't mean rape can never be depicted in fiction.06/30/2015 - 4:03pm
InfophileIn fiction, it depends on the context. It's very easy to get "wrong," but there are cases where feminists have approved of how it's been shown (eg. the scene with Honor Harrington in the new compilation comic)06/30/2015 - 4:02pm
Andrew EisenThat would be an interesting alternate film though. Ray became a Ghostbuster to get rid of the spooks that had been sexually assaulting him.06/30/2015 - 4:00pm
Andrew EisenHe's not powerless against ghosts. That's very firmly established by that point in the movie.06/30/2015 - 3:57pm
Andrew EisenSo, if in the new movie, McCarthy or one of the other Ghostbusters has a dream where a pretty ghost goes down on her, I don't predict outrage (other than from those silly random no-name numbnuts on Twitter).06/30/2015 - 3:56pm
Goth_SkunkDream or not, it's still a scene that depicts a victim powerless to stop his attacker from engaging in an act of sex upon him. Even if he enjoys himself, it's technically rape. Hypothetically, he could feel traumatized afterwards.06/30/2015 - 3:55pm
Andrew EisenWell, he could always, you know, grab a proton pack and bust that rapey ghost! But again, it's still pretty clearly a dream.06/30/2015 - 3:53pm
ZippyDSMleeSo what dose GG stand for if its not been taken over my bigots??06/30/2015 - 3:52pm
Goth_SkunkI am assuming he's powerless to stop it, yes. I have no reason to believe a ghost would find itself in any way obligated to obey laws of corporeal beings. And it's not just about consent, but also about the means to stop the person engaging the sex.06/30/2015 - 3:51pm
Andrew EisenRape in real life? Absolutely (though "tizzy" isn't the right word). In fiction? Depends on how it's used.06/30/2015 - 3:50pm
Infophile"...it's rape. And that tends to send feminists into a tizzy." You say that as if rape isn't something to get into a tizzy about.06/30/2015 - 3:48pm
Andrew EisenBesides, it's pretty clearly a dream. Ray and the ghost are in some unknown bedroom. Then it cuts to Ray and the other guys in the firehouse beds with Ray rolling over in his sleep and falling off the bed. Looks like Egon is having a weird dream too.06/30/2015 - 3:46pm
Andrew EisenYou're assuming he's powerless to stop it. Maybe saying "no" or something would have stopped the ghost. Anyway, so, in your opinion, sex (oral or otherwise) is rape unless there's explicit consent?06/30/2015 - 3:44pm
Goth_SkunkBut, to be completely fair, that fact never dawned on me until 15 minutes ago.06/30/2015 - 3:43pm
Goth_SkunkAbsolutely. He doesn't consent, and is powerless to stop it because his attacker isn't corporeal. The fact that he's enjoying himself does not change the fact that it's technically rape.06/30/2015 - 3:42pm
Andrew EisenAlways came off as a dream to me.06/30/2015 - 3:40pm
Andrew EisenThat scene really reads to you like Stantz was being raped?06/30/2015 - 3:39pm
 

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