Supreme Court Predictions

June 6, 2011 -

Entertainment Consumer Association president Hal Halpin offers his personal (note: not ours) opinion on the timing of the Brown v EMA (formerly Schwarzenegger v EMA) Supreme Court decision over at IGN. There has been much speculation that a decision will be released this week, and Halpin has his own predictions about it:

"Despite law maker Leland Yee’s prognostications, no one really knows when we’ll get the answer, but my money is on this Thursday.

The case is a landmark in that it could define what types of media are classified as protected free speech and protected by the First Amendment. If games are excluded, as the State of California seeks, the repercussions would be significant: likely changing the way that games are sold, so that they’re regulated more like alcohol, tobacco or firearms. We’ve already been promised that at least two states, Michigan and Illinois, would re-start their efforts to legislate gaming and criminalize the sale and purchase of violent video games."

He goes on to give praise to EMA attorney Paul Smith, and talks about the ECA's amicus brief. Read the whole thing at IGN

Speaking of Leland Yee, the California State Senator who helped draft the bill: his camp was convinced a decision would be revealed this morning and had planned a press conference for 10:30 AM EST. Of course no decision came this morning.. 

[GamePolitics is an ECA publication.]


Comments

Re: Supreme Court Predictions

I don't think we can win. At best, this law will be struck down because it could possibly open doors to censoring other things.

---You are likely to be eaten by a Grue.

---You are likely to be eaten by a Grue.

Re: Supreme Court Predictions

That basically counts as winning. 

Re: Supreme Court Predictions

But it won't really be representitive of how far the medium has come. It'll be like saying "We're gonna strike down this law because it could give you too much power over what can be banned."

---You are likely to be eaten by a Grue.

---You are likely to be eaten by a Grue.

Re: Supreme Court Predictions

I think it is likely that the law will be struck down but of course you never know until the verdict is read. The troubling thing is that while the Justices didn't seem to thing that this law would pass constitutional muster they seemed to imply that a revised version of the law, with stricter wording, would.

Anyway, hopefully we can fight off these attempts at regulation long enough for the older generation to retire and die off, being replaced by people who grew up with gaming and are not afraid of something they don't understand. In fact there are even today some elected officials with gaming experience or who identify as gamers. In another 10 to 20 years no one will even consider legislation like this.

Re: Supreme Court Predictions

And Yee seems like the type who is willing to keep throwing until something sticks.

Re: Supreme Court Predictions

That's why you can't laud Stevens as a bastion of First Amendment protection. They said that a law banning depictions of "animal cruelty" goes too far, but a law banning "crush videos" would be OK. A few weeks later, a new law specifically aimed at crush videos was passed. It was better written, but sill made the mistake of treating the videos as obscenity, where it would have trouble passing the first prong of the Miller test (appealing to the prurient interest).

I am also worried about a decision that would give California or other states another bite at the apple. That's why I'm hoping Scalia writes the majority, in the strong condemning language he used at orals. The good news is, it sounds like a favorable decision will either come down on the grounds of vagueness, which is a much harder obstacle to overcome than overbreadth, or an outright First Amendment violation. That's why I would rather have Roberts dissent than vote for us-he would do a namby-pamby Stevens-like ruling that would not close the door on other attempts.

Re: Supreme Court Predictions

Yee can throw all he wants, assuming he doesn't get the mayoral job of San Francisco, in which case he would be out of our hair.  Paul Smith said it nicely.  There's no possible way to draw a statute so narrowly written that it fully encompasses all of the flavors and subflavors of video games that restrict games like Postal 2 without restricting Halo or LA Noire in the process.

Yee was also able to railroad his censorship law through the state senate because of the hot coffee scandal.  He might find that a lot changes in seven years, and I'm not sure if his colleagues will appreciate half a million dollars wasted to have his law shot down. 

Re: Supreme Court Predictions

Here's hoping the video game industry wins. No one wants America to end up like Germany/Australia with their infamous video game bannings/censorings.

Re: Supreme Court Predictions

Soon we shall see how wide the generation gap is.  

Personally, I expect them to rule against the EMA. The justices are too old to understand games; The desire to regulate content is a dream of both Liberal and Conservative dogmatists alike; and the Games Industry acted far too late and lazily in the face of this legislation- all the way back to sackless Doug Lowenstein.  

I would love to be wrong, but there has been far too much irrationality and a devaluation of our basic rights in the last decade in the USA for me to have much trust in the powers-that-be.

Re: Supreme Court Predictions

This is the same SCOTUS that rules crushing animals to death to make fetish videos was protected, didn't even count as obscene.....

I would be surprised if they decided video games were so much worse as to not be protected.

Re: Supreme Court Predictions

They did not rule that crushing animals to death for video was protected speech. They ruled that the law targetting those videos was overly broad and that protected speech would have been caught in the drag net.

E. Zachary Knight
Divine Knight Gaming

Re: Supreme Court Predictions

They should have argued animal cruelt,y it might have held up then.

Re: Supreme Court Predictions

Listen to the audio transcripts on C-Span.  Antonin Scalia, the most senior and influential justice on the court, trashed California's lawyer.  As if that wasn't enough, Morazzini himself was a complete trainwreck.  Compare that to Paul Smith's logical, well-thought out argument even when he came under severe questioning by Breyer, Alito, and to a lesser extent Roberts.

Ultimately though, and I've said this before, the oral arguments are a dog and pony show, which is a good sign for us, because Yee's spinning of the arguments hinges entirely on the same four comments by Breyer.  What really matters in a Supreme Court case are the briefs and preparedness.  When it comes to briefs, we win.  Yee's briefs are essentially relying on the justices being blind, incompetent, and lazy.

This is a conservative Court that has shown great reluctance to carve out exceptions to the First Amendment.  I'm sure banning children from purchasing Postal 2 sounds dandy at first glance, but the justices have had months to look carefully at briefs.  Perspectives after reading the flawed studies of Anderson or Bushman change. 

Re: Supreme Court Predictions

Plus didn't they say corperations have free speech since they are people?

Re: Supreme Court Predictions

Yep.  FEC v. Citizens United essentially ruled that corporations are entitled to free speech same as individuals.  So a verdict against the gaming industry, which products products that California conceded are speech, is very unlikely.

Re: Supreme Court Predictions

How exactly did the games industry react too late? They challenged every law that restricted the sale of violent games. Every single one of those laws has been struck down on Constitutional grounds.

If you are simply talking about a public perception problem, then you may be right, but we are improving and have done far better than the comics industry when they went through this same thing.

E. Zachary Knight
Divine Knight Gaming

Re: Supreme Court Predictions

Doug Lowenstein was completely unfocused and passive when it came to games censorship efforts- just look at how silent and unengaged he was during years of anti-games reporting, punditry, and Jack Thompson.  He made Neville Chamberlain proud.

Look at how the ESA/ESRB handled Hot Coffee.  Re-rating the thing and failing to properly inform the public to the truth of what exactly it was has proven to be one of the most insipid and damning things to ever happen to the industry.

All that was done when Fox News ran that "Sex Box" hatchet-job was a memo from EA with as much vigor as a kitten.  The Amazon-bombing of that lying "expert's" book by angry gamers (not exactly a classy response) was a more effective and impassioned response than the so-called adults with the interests of their livelyhood at stake.

I could go on, but had the games industry actually had a real set of testicles or actually cared about their legitimacy as a medium, this SCOTUS case may have never happened.  Instead, we have deer-in-the-headlights industry representatives and man-children (Cliffy B, Jaffe, Dyack, etc) as the faces of this business.  

Things could have been handled much better.  If the SCOUTS rules in favor of the ESA, it would be in spite of the people representing the industry, not because of them.

Re: Supreme Court Predictions

Heh, in defense, he didn't really HAVE t osay anything about Thompson, as he kinda defeated himself.

Re: Supreme Court Predictions

I don't know, Zerodash.  The courts have stuck down such legislation every single time so far.

 

Andrew Eisen

Re: Supreme Court Predictions

It would be very odd to see the Supreme Court invalidate 11 unanimous lower court rulings.

E. Zachary Knight
Divine Knight Gaming

Re: Supreme Court Predictions

Restrict our gaming, yet dunking a cross in a jar full of urine is protected "art".

Re: Supreme Court Predictions

Restrict our parenting, because Yee knows our kids better than we do?

 

 
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