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Analysis: Inside The U.S. Supreme Court On 'Schwarzenegger v. EMA'
Analysis: Inside The U.S. Supreme Court On 'Schwarzenegger v. EMA'
November 2, 2010 | By Chris Morris

November 2, 2010 | By Chris Morris
More: Console/PC

[Gamasutra editor-at-large Chris Morris offers in-person analysis and highlights of Tuesday's U.S. Supreme Court hearing over the California violent game bill, explaining why it's "still much too early to start celebrating."]

The video game industry might be able to release some of that deep breath it has been holding since the Supreme Court agreed to hear arguments in Schwarzenegger v. EMA - but it's still much too early to start celebrating.

While Justices did seem to side with the video game industry in their questions, by no means did they give EMA attorney Paul Smith a free pass - peppering him with questions about the harmful effects of video game violence and scolding the industry for seemingly shrugging off reports from organizations that indicate there is an effect on children.

They were even less impressed with the parental controls the industry touts, with Chief Justice John Roberts noting "any 13-year-old can bypass parental controls in about 5 minutes."

That said, it was California that took the brunt of the hard questions at the Gamasutra-attended U.S. Supreme Court hearing in Washington D.C. on Tuesday - which seemed to disorient California's supervising deputy attorney general Zackery Morazzini.

Among the highlights:

"Would you get rid of rap music? Have you heard some of the lyrics of some of the rap music, some of the original violent songs that have been sung about killing people and about other violence directed to them? Why isn't that obscene in the sense that you're using the word - or deviant?" - Justice Sonia Sotomayor

"What's next after violence? Drinking? Smoking? Will movies that feature scenes of smoking affect children? ... Movies that show smoking can't be shown to children? Will that affect them? Of course, I suppose it will. But are we to sit day by day to decide what else will be made an exception from the First Amendment? Why is this particular exception okay, but the other ones that I just suggested are not okay?" - Justice Antonin Scalia

"If you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm's fairy tales? Why are video games special?" - Justice Ruth Bader Ginsberg

"For generations, there has been a societal consensus about sexual material. Sex and violence have both been around a long time, but there is a societal consensus about what's offensive for sexual material and there are judicial discussions on it. ... But you are asking us to go into an entirely new area where there is no consensus, no judicial opinions." - Justice Anthony Kennedy

"What's a deviant - a deviant, violent video game? As opposed to what? A normal violent video game?" - Justice Scalia

(Morazzini, incidentally, answered yes to this question, clarifying that deviant would be departing from the social norms. Scalia quickly asked "There are established norms of violence!? ... Some of the Grimm's fairy tales are quite grim, to tell you the truth. Are they ok, are you going to ban them too?")

"One of the studies ... says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video [game]. So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?" - Justice Sotomayor

The list goes on, but the point's pretty clear.

Focus On... Running With Scissors?

What was interesting from my standpoint was the focus. California was successful in making Postal 2 the centerpiece of its argument. Justices repeatedly referred to the game and some of its more infamous scenes - such as setting people on fire, then urinating on them to put them out - in their questioning. Other titles, no matter how violent or controversial, were largely ignored - though MadWorld did get name-checked.

(That's curious, given how much attention the "No Russian" level in Call of Duty: Modern Warfare 2 received last year, though given the late date of that game, California might not have been able to add video footage of it to its filing.)

EMA attorney Paul Smith didn't bring up other titles either, though since attorneys rarely have a chance to complete a sentence before the justices lob another hardball question at them, that's not too surprising.

One thing that no one was expecting from this hearing was the amount of joking that came from the Justices. While they certainly took the matter seriously and offered some very hard questions, they weren't a monolithic group of nine that didn't have some fun with the proceedings.

After Justice Scalia raised the question above about what was next after violence, Justice Samuel Alito quipped "Well, I think what Justice Scalia wants to know is what James Madison thought about video games."

Even Scalia himself was tossing off one-liners, such as "Juries are not controllable. That's the wonderful thing about juries, also the worst thing about juries."

And Justice Elana Kagan, the youngest member of the Court, showed more awareness of the industry than most people were expecting, temporarily ignoring Postal 2 and asking Morazzini about "Mortal Kombat," a question he didn't seem at all prepared for.

"You think Mortal Kombat is prohibited by this statute?," she asked out of the blue. "I believe it's a candidate Your Honor, but I haven't played the game and been exposed to it sufficiently to judge for myself," Morazzini replied after a short pause.

"It's a candidate," she quickly followed up, "meaning, yes, a reasonable jury could find that Mortal Kombat, which is an iconic game, which I am sure half of the clerks who work for us spend considerable amounts of time in their adolescence playing..." ("I don't know what she's talking about," quipped Scalia - who by that point could have been entertaining offers to open at the Improv.)

First Impressions... Deceiving?

While Justices seemed to favor the video game industry's case in the oral arguments, it's worth keeping in mind that that can be misleading. Often Justices will aggressively question counsel for the side they're inclined to rule in favor of, hoping those attorneys can make convincing arguments that might sway other members of the Court.

Also, the current lineup of Justices leans conservatively, which is always a concern for the entertainment industry.

"It's got to be (worrisome)," says Miles Feldman, an entertainment litigator with Raines Feldman, LLP in Beverly Hills tells Gamasutra. "It can cut both ways. By and large, I think the ideological nature of the court is they're not going to be to friendly to the concept of violent video games. The justices aren't computers that adhere to precedent and spit out opinions. They have their own feelings that affect decisions."

"The reaction to whether this applies to Mary Shelley's Frankenstein is 'of course it doesn't!' But there's something about video games, because of how interactive and how graphic they are, that could be allowing this type of regulation."

In other words, judging by today's arguments, the industry seems to be headed in the right directions, but it's still a long way from being out of the woods.

[You can now read the full transcript of this morning's arguments on the Supreme Court's website as a PDF.]

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Owen McNamara
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LOL They're still pointing fingers at Postal 2? That game is seven years old. Did Soldier of Fortune 2 make it into the discussion too? What about Doom, or Wolfenstein 3D?

There's no case when using the games themselves as evidence, as the only way the prosecution could do so is by dropping the context of the games. Postal 2 was entirely about satire, in the same vein as South Park.

Brandon Davis
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The problem with SCOTUS is that it is made up of lawyers who have their sinecures based on political orientation. As such, they are merely mediocre lawyers/bureaucrats. In the final analysis, they can do little else except parrot whatever mundane political beliefs that they are able conjure up.

They are prone to be neither aware of any of the research into the subject, nor have they actually experienced the the playing of video games. And then we have Justice Thomas who reportedly likes porn, and is a binge alcoholic. I can see him voting for regulation, just to appear more pious than he is.

Kevin Reilly
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Brandon, you can disagree with the particular POV a justice, but I don't know anyone with a law degree that would consider them to be "mediocre" in their credentials or intellect. Read the transcript, it's entertaining to say the least. The ability to play video games has no relevance as to whether SCOTUS can apply the First Amendment to content based speech regulations. That is well within their wheelhouse and they certainly had a good grasp of the issues before them. Extra points for Sotomayor for pointing out CA failed to challenge the 9th Circuit's ruling on the "18" label, which was also found unconstitutional as being "forced" speech.

As for the actual questioning, I think Scalia, Ginsburg, Kagan and Sotomayor tended to be harsher towards the CA attorney's arguments. Roberts, Alito and Breyer really beat up the ESA and may be receptive to allowing CA experiment with regulating violent content. Kennedy and Thomas were both fairly silent. Which is a concern because those 2 really can swing the decision towards upholding or striking down the law.

Ardney Carter
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Reading through it now. About half-way done. Agree with Kevin that it's an extremely entertaining read. The Justices are absolute beasts when it comes to their questions. And I also appreciate the fact that they constantly call the lawyers out when they try to scoot around a question. It's really good stuff.

My (admittedly uneducated) opinion is that it's still anyone's game. It's true the AG didn't do so well with his opening, but the ESA rep never seemed to give a solid answer to the Justices as to why enactment of the legislation would be so bad. The back and forth regarding "common sense" didn't seem to go too well for the ESA rep IMO.

[edit]Ok, he turned it around at the very end.

"MR. SMITH: Our rules wouldn't help you at all. They say that they are only restricting a smaller number, a small subset of M-rated games, which by the way, we say are appropriate for 17-year-olds. So these ratings that the state wants us to impose are going to conflict with the ratings that are already on the packaging"

Mike Lopez
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It is kind of funny they chose Postal 2 because it plays into the stereotypes of stodgy old dudes who are decidedly outdated and un-hip. :)

But I'm thinking they strategically chose to focus on Postal 2 because of its limited success (no wonder with a 63% rating) and because it was published by a dinky, bottom tier publisher. Were they to have focused on Grand Theft Auto or Call of Duty they would have had a huge fan base to overcome in the court of popular opinion, as well as a very large publisher with deep enough pockets to mount an even greater fight against them in the courts and with a PR blitz.

Anyone else think that choice is more strategic than it appears at first glance?

Kevin Reese
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I wonder how the Terminator really feels about violence in entertainment.

Steven Andrews
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After reading the transcript, I think the court is going to lean towards the idea that there is merit to CA's position that it should be able to control the sale of certain content to minors (as it done with sexually explicit material). However, in the specific legislation itself, the defining parameters of what is considered "deviant violence" is too vague to be properly enforced or for a producer to know when they are breaking the law. So my prediction is they'll say the state can make a law regarding the sale of violent material to minors, but not this one.

Cody Scott
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If the supreme court sides with California, I hope every developer and publisher moves their offices out of California and to states that are more open to their business like North Carolina. Here in NC we have a law that gives game developers a tax write off when they purchase capital goods like, desks chairs, computers, software, etc.