For a man whose name makes up half the name of a case in front of the Supreme Court, lame duck California Governor Arnold Schwarzenegger has been remarkably silent about Schwarzenegger vs. EMA, a case which saw oral arguments presented in front of SCOTUS yesterday.

A quick look at Arnie’s tweet stream for the last week shows the Governator urging his followers to vote, congratulating the San Francisco Giants for winning the World Series, disclosing how he voted on various state propositions and congratulating his replacement, newly elected former governor Jerry Brown.

The Entertainment Software Association issued a press release (here) detailing its efforts at the Supreme Court today.

Overall, the trade group dedicated to the video game industry was satisfied with how things went inside the court room and predicted that this decision - when it comes - could put an end to laws like the one California is proposing. The ESA and EMA were supported by friends of the industry that see California's law as an infringement on free speech rights.
 

The short story is that the ESA thinks the California law is wrong-headed, misguided and unconstitutional. The long story can be found below:

The full transcript of today's oral arguments heard before the Supreme Court (related to Schwarzenegger v. EMA) is available at the official web site for the SCOTUS (PDF).

Here are some choice bits:

California Governor Arnold Schwarzenegger signed California Assembly Bill 1179 into law on October 7, 2005, setting off a chain of events that eventually led to today’s oral arguments in front of the Supreme Court, which will ultimately decide whether the First Amendment can stop a state from prohibiting the sale of violent videogames to minors.

Two issues are at stake for the Court to decide: Do violent games for minors fall within a category of speech unprotected by the First Amendment and does California’s ban on the sale or rental of violent videogames to minors satisfy the strict scrutiny test applicable to content-based restrictions on speech?

Arguing for the California side in Schwarzenegger vs. EMA was Supervising Deputy Attorney General Zackery Morazzini, while Jenner & Block lawyer Paul Smith took the lead for the gaming industry.

The entire time allotted for oral arguments—and questions—is one hour.

The Entertainment Merchants Association president issued a brief statement on today’s oral arguments before the U.S. Supreme Court related to Schwarzenegger v. EMA. Overall EMA's top executive seemed upbeat about the whole ordeal:

"Today’s U.S. Supreme Court argument in Schwarzenegger v. EMA was both spirited and stimulating. I’m pleased that the justices recognized that the standard in the California law for restricting 'violent video games' to minors is unworkable in practice. I am confident that the justices will see beyond the facial appeal of restricting “violent video games” for minors and hold the law unconstitutional." - EMA President Bo Andersen.

Thanks Hal Halpin. More information about the EMA can be found at www.entertainmentmerchantsassociation.org/.

[GamePolitics is an ECA publication.]

We have grabbed a number of interesting articles from game sites like Gamasutra and GameSpot, and mainstream media sites such as the Wall Street Journal and the Washington Post. Most agree that the court seems to be divided on this issue, though even that is speculation at this point. A healthy dose of frank questions gives clarity, after all.

Check out the links below:

SCOTUS Blog notes the tone of today's arguments before the Supreme Court; In particular, the industry's notion that no amount of legislation is required - big or small. Justice Stephen G. Breyer pressed industry's lawyer on the perception that common sense should prevail when it comes to social problems with children who play video games. He pushed back hard at the industry for the idea that "there simply is no problem that legislatures need to try to solve."

On the other side, California's Deputy Attorney General was pressed on the vague nature of its arguments. Justices wondered why the State could not clearly define violence without suppressing free speech. Considering that it wants to define violent video games as something similar to pornography, the state may end up failing to prove its case.

Work it, Senator! California State Senator Leland Yee says some stuff on the steps of the Supreme Court. I do not know what he is saying exactly but I imagine it's something along the lines of "video games train our children to commit acts of violence and cannibalism!" Anyway, politicians and press conferences go together like ants and picnics.. or war and famine. Caption the pictures in the comments for fun (thanks to the ECA's Hal Halpin for passing these along):

The arguments are over, and some sites have started to detail how things played out in the court. While early indications are that the justices (who heavily questioned California Attorney General Zackery Morazzini about the vagueness of the law, and if it overreaches on protecting children from violent things) seem skeptical of the State's arguments, there is no real way of knowing which way the court will rule.

If you look at the Crush video ruling earlier this year, you might be inclined to believe that the court will rule on the side of free speech - even when that speech is considered by most to be morally questionable. On the other hand, the court does not have a good record of accomplishment when it comes to the rights of those under the age of 18 - just ask Mr. "Bong Hits for Jesus."

Here are five more photos from the real "Rally to Restore Sanity," taking place outside the Supreme Court – no offense to Jon Stewart intended. Thanks to everyone that took time out of their busy schedules to support free speech, video games, and gamers in America (thanks to our own Matthew Olschan for sending these in).

Hal Halpin and several members of the Entertainment Consumer Association are on location at the steps of the Supreme Court this morning to support the game industry side of Schwarzenegger vs. Entertainment Merchants Association. Many members of the ECA are there (gamers!) showing their support with signs, chanting, and other displays of positivity. Below you can check out a few photos (click on the thumbnails for a better look).

While the mid-term election is a very big deal, (did you vote?) there is a lot of talk on the Internet about the big showdown at the SCOTUS tomorrow. Below is a sample of some editorials worth checking out:

In a not-so-shocking press release today from Running With Scissors and its founder Vince Desi, the company behind the Postal series has a lot to say about tomorrow's battle in the U.S. Supreme Court. The cliff notes version of Desi's comments are simple enough - he believes his company and his games are getting lambasted on all sides. Desi, who has a flair for the dramatic, opens with the following:

Over at Gamasutra, Attorney Greg Boyd has composed a detailed look at the California law at the center of Schwarzenegger v. EMA.  After a brief history lesson concerning what the law says and where it’s been over the last few years, Boyd speculates about how the Supreme Court may eventually rule.

“It would be surprising to the legal community if this case went against all the prior similar cases on content-based regulation. The consensus expectation is that this case will fit with the other state cases on this issue (and the two lower court decisions in California). The preliminary injunction will likely be upheld and the statute will likely be held unconstitutional.”

Outgoing Academy of Interactive Arts and Sciences (AIAS) head Joseph Olin, in discussing the Schwarzenegger vs. EMA case with Techland, begins by admitting that he, along with “most of the creative and financial stakeholders of the interactive entertainment industry,” were “mystified” that the Supreme Court decided to grant California's petition for writ of certiorari.

Olin also demonstrates at least a little grudging respect for California State Senator Leland Yee, stating that he doesn’t believe Yee is doing all this as “a grandstand play or because he has designs to be the next governor…”

Believe it or not conservative radio host Rush Limbaugh recently came to the defense of videogames during a recent call to his radio show (thanks Kotaku!).

21-year old caller Cory from Waterville, Ohio posed the question to Limbaugh, asking if Schwarzenegger vs. EMA was a “relevant thing that the Supreme Court should ever be even considering.”

Limbaugh, in answering said that since he was 21 years old, he has “been concerned about the infringements on free speech that come from Democrat regimes and courts because I'm in the free speech business.”

Saying that he was "glad" that the case was happening, Limbaugh continued:

Game developer Daniel Greenberg (pictured) has authored a Washington Post opinion piece in which he argues that the Supreme Court should rule that videogames are free speech when it eventually rules on Schwarzenegger vs. EMA.

As a game developer, Greenberg called himself “disheartened and a little perplexed” at seeing games compared to cigarettes and alcohol by California State Senator Leland Yee, and he wondered “how government bureaucrats are supposed to divine the artistic value that a video game has for a 17-year-old.”

In describing newer games such as BioShock, Fable 2 and Fallout 3, Greenberg wrote:

The author of Grand Theft Childhood offers an intelligent, thoughtful rebuttal to the arguments (and the research data) being used by the State of California in the U.S. Supreme Court's review of Schwarzenegger v. EMA.

Cheryl K. Olson (Sc.D., Asst. Clinical Professor of Psychiatry at Harvard Medical School) offers an update that takes on the evidence that California is using in the case, and the conclusions drawn by politicians in their arguments. She also says that the law may very well backfire should the 9th Circuit Court of Appeals ruling be overturned.

Below is a taste:

The Entertainment Merchants Association passed us a quick note to let us know that the AirTalk program on KPCC ((National Public Radio in Pasadena, CA) will run a segment on (Monday, November 1 at 11:00 am PT) about the Schwarzenegger v. EMA case. Arguments for and against the California video game law will be heard by the U.S. Supreme Court on Tuesday, November 2. The ECA will be holding a rally on the steps of the court in support of the game industry and gamers.

The AirTalk Segment will feature Dr. Chris Ferguson of Texas A&M and Dr. L. Rowell Huesmann of the University of Michigan discussing the pros and cons of both sides of the issue. AirTalk is streamed live at www.scpr.org/programs/airtalk.

A pair of opposing editorials appear on the USA Today website, delivering two distinct takes on Schwarzenegger vs EMA.

Common Sense Media CEO James Steyer penned a piece opposing the game industry, stating that the showdown “pits the profits of a multibillion dollar video game industry against the best interests of kids.”

Steyer, whose organization backed California with an amicus brief of its own (PDF), went on to cite American Academy of Pediatrics research to back his choice of sides, research which “declared the connection between game violence and aggression nearly as strong as the medical association between cigarettes and lung cancer.”

The American Civil Liberties Union is asking the public to help them push the U.S. Senate to pass S. 446, a bill that would allow camera coverage of oral arguments in the Supreme Court. The ACLU describes it as "a bipartisan bill that would allow cameras into Supreme Court proceedings unless doing so would violate the due process rights of one of the parties."

The bill received strong support in the Judiciary Committee, and is ready for approval by the full Senate. The full Senate could take the matter up in the lame duck session after the mid-term elections if you tell them in droves that it is important.

I am not a fan of headlines with question marks at the end, but the IndustryGamer story, "Could California Game Law Lead To An Exodus From The Industry?," poses an interesting question. What are the repercussions of an entire industry under the thumb of a state government, and if the California law succeeds, what states will line up to pass their own laws? Will there be job losses and less mature-rated titles on the market?

Patrick Sweeney, lawyer at Reed Smith LLP and represents video game publishers (EA, THQ, Sony Online Entertainment, and Nintendo), makes a prediction:

As we inch closer to Tuesday, when oral arguments in Schwarzenegger v. EMA will be presented in front of the Supreme Court, one videogame industry lawyer discussed the impact, in his opinion, a win for California in the case might have on the industry.

Reed Smith LLP’s Patrick Sweeney, council for the firm’s Corporate and Securities Group and specializing in videogames, was quoted in Industry Gamers as stating about a game industry loss in the case, “Certainly less games would be produced and there would be a corresponding job loss.”

Sweeney, continuing, stated that the influence of such a legal defeat could be even deeper:

The SCOTUS Blog gives us a preview of the arguments we can expect from both sides of the Schwarzenegger v. Entertainment Merchants Association review before the Supreme Court on November 2. Deputy state attorney general Zackery P. Morazzini will argue for California (Jerry Brown is busy campaigning for Governor of the state), and Paul M. Smith of Jenner & Block will be arguing for the video game industry.

This is a great read because it covers everything about the case that you could possibly imagine, but the bit below sums up a general feeling about the SCOTUS taking up the case in the first place:

The American Bar Association Journal offers a history lesson on the Schwarzenegger v. Entertainment Merchants Association, including what will likely be the salient points of California's arguments before the Supreme Court. The story begins with an overview of all the things government has tried to regulate - from dime novels in the 1800's to comic books in the late 60's - and everything in between. It always seems to start with the children. Who can say no to preserving the safety of children, after all? Of course, all of those efforts have failed.

But California is looking at one ruling that it can try to apply to video games - the 1968 Supreme Court ruling in Ginsberg v. New York. From the article:

While it may be difficult to imagine a Supreme Court Justice picking up a controller for a jaunt through Postal II, during the course of actions surrounding Schwarzenegger vs. EMA such a scenario is not totally out of the realm of possibility, at least according to the lawyer who will present the videogame industry’s side in front of the nation’s highest court next week.

In a story on the Schwarzenegger vs. EMA case appearing on the American Bar Association’s (ABA) website, it was noted that California submitted a DVD to the Supreme Court that featured five minutes of violent videogame footage, with the hopes that such footage would bolster its case. The game industry chose to submit a DVD with a “more diverse array of action,” including scenes from titles like Medal of Honor and Tom Clancy’s Rainbow Six.

With all of the interest around the violent video game case, Schwarzenegger v EMA, we get questions daily on the process, the case, the legal principals, our amicus brief, others’ briefs, and what is going to happen on the day of oral arguments and beyond. While we hope that the following information will shed some light on the oral argument process, we also routinely refer folks to the Supreme Court website, as well as to relevant articles on GamePolitics.

As the case surrounding a law he originally authored makes its way to the Supreme Court next week, California State Senator Leland Yee issued a handful of comments related to what will eventually be a landmark decision for gamers.

The Court will, of course, hear oral arguments for Schwarzenegger v EMA on Tuesday, November 2 at 10:00 AM.

Yee said he was “hopeful” that the Court would give “parents a valuable tool to protect children from the harmful effects of excessively violent, interactive video games.”

Yee additionally claimed that SCOTUS has "often ruled" in favor of protecting kids and limiting their access, citing topics such as "pornography, gambling, marriage, firearms, jury duty, tobacco, alcohol, voting, abortion, licenses, and the death penalty" as examples.

Yee continued:

ECA vice president and general counsel Jennifer Mercurio is the subject of this GameSpot Interview explaining just how the Schwarzenegger v. EMA will play out before the Supreme Court on November 2. One interesting fact that Jennifer points out is that the average case argued before the Supreme Court takes about an hour. That is a surprising fact, given that some of the most important issues in this country come before the court like the death penalty, First Amendment rights, gay marriage, civil rights, abortion, etc.

While some might argue that Schwarzenegger v. EMA isn't as important as those issues, I would say that having the ability to speak freely in this country - especially through artistic endeavors such as literature, films, music and video games - is the most important issue of our day. Without free speech, we are not truly a free nation.

Below is an excerpt from the interview:

The President of the Americans for Limited Government (ALG) organization is against the California law at the center of the Schwarzenegger vs. EMA Supreme Court case.

Bill Wilson’s editorial on the subject states that the onus for such enforcement should fall to parents, not the government, an unsurprising sentiment perhaps, given the name of the organization he heads up.

Wilson notes that the law would be so easy to get around that “its unenforceability teaches a terrible lesson to kids: That certain laws may be disregarded.” He adds, “That is a worse message than anything learned from the games. It is one that undercuts respect of all other law.”

The editorial continues: