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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Neeneko@ MechaTama31 - That is the big reason fansubs were tollerated for so long in the US, japanese studios kept watch to see which ones became popular via those networks.10/30/2014 - 8:11am
quiknkoldJournalists shouldnt be bigger than the stories they report or products they review.10/30/2014 - 7:48am
E. Zachary KnightHere is some food for thought for gamergaters who want politics out of games journalism. https://www.techdirt.com/articles/20141026/06425828942/journalists-need-point-view-if-they-want-to-stay-relevant.shtml10/30/2014 - 7:18am
quiknkoldI didnt say all games are like that, Conster. Princess Peach was....different. though I had fun with it.10/30/2014 - 7:00am
james_fudgehttp://www.somethingawful.com/news/gamergate-with-cats/10/30/2014 - 5:20am
MechaTama31AE: Japan's doujin scene illustrates an interesting potential solution to that problem. Let people play around with the characters, and keep an eye on things to see what people are buying.10/30/2014 - 12:07am
ConsterI bought, played and liked the game (unlike Smash Basketball *shakes fist*), but that felt iffy to me.10/29/2014 - 10:52pm
Consterquiknkold: if Super Princess Peach had been Super Prince Peach instead, do you think emotions would've been a mechanic?10/29/2014 - 10:51pm
quiknkoldcore meaning Colossus, Storm, Wolverine, and Nightcrawler10/29/2014 - 8:51pm
quiknkoldMatthew, those core x-men were together for almost 2 decades, until one would always be dead so they couldnt have them all together.10/29/2014 - 8:51pm
quiknkoldmore of an unknown. background characters mostly, who had a book but it was mostly a waste. they bring in this powderkeg of diversity and boom. now they could do the same thing and with the right artist and writer and mystique to it...10/29/2014 - 8:50pm
Matthew Wilsondoes it though? they always seem to return to the original cast in a year or two.10/29/2014 - 8:49pm
quiknkoldWhen I think of the perfect catalyst of a melting pot hero team, I think of the All New All Different X-Men. A Russian, A African goddess, A Canadian Berzerker, a German elf, and Cyclops. and all have withstood the test of time mostly cause the x-men were10/29/2014 - 8:49pm
Andrew EisenOne reason is because the money people are often afraid it won't sell. "A new IP AND the protagonist is gay?! That'll never work!" Showing that diverse characters can work in popular IP is simply a place to start. The indie scene is another.10/29/2014 - 8:47pm
Matthew Wilsonisnt that the point? why not just make new heroes that are different races, sexual orientations, and genders to start with?10/29/2014 - 8:46pm
Andrew EisenYep, progress is a lot slower than it should be (especially for something that shouldn't have been a problem in the first place).10/29/2014 - 8:45pm
quiknkoldrelevent. Hazmat and X-23. while Reptile, Mettle, Rockslide, Anole, Hellion, Dust, Mercury are all relegated to background characters with zero character enhancement. or they are dead10/29/2014 - 8:45pm
quiknkoldThat has a chance of happening. But its a cosmic scale gamble. They cant all end up like Captain Marvel, once a sidekick and now queen badass. but with Marvel? Look at New X-Men and Avengers Academy. a plethora of new characters, and only 2 are still10/29/2014 - 8:44pm
Andrew EisenIt is a gimmick, albeit one with some good intentions. Plus, it can potentially lead the way to the things you want to see such as new characters.10/29/2014 - 8:41pm
quiknkoldcomes in as a gimmick.10/29/2014 - 8:38pm
 

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