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The Judiciary (The Best Branch of Government(tm)) ft. Videogames & the 1st Amendment

UbikUbik i am a godin a french-ass restaurantRegistered User regular
edited November 2010 in Social Entropy++
schwarzenegger.jpg
Arnold Schwarzenegger, Governor of California
v.
[Redacted]
Entertainment Merchants Association (EMA)

So, next month on Tuesday, November 2nd, 2010, the Supreme Court of the United States will be hearing oral arguments in the case Schwarzenegger v. Entertainment Merchants Association, 130 S.Ct. 2398 (2010).

The Court will be reviewing the decision of the United States Court of Appeals for the Ninth Circuit in Video Software Dealers Association v. Schwarzenegger, 556 F.3d 950 (2009).

As you may or may not know, this is the violent video game First Amendment case.

The questions before the Court are:
1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?; and
2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny*, under Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?
Spoiler:

The Ninth Circuit, in Schwarzenegger, reviewed the lower court’s decision that California Civil Code Sections 1746-1746.5 violated the First Amendment. The Ninth Circuit affirmed this decision holding, among other things, that video games are expression protected by the First Amendment and that violence does not fall under the “obscenity”* exception to First Amendment protection.
Spoiler:

The Statute in question is as follows [edited for brevity]:
Spoiler:

Statutes like this one have been routinely struck down on First Amendment grounds by applying strict scrutiny to these content-based regulations. In Oklahoma (ESA v. Henry), Illinois (ESA v. Blagojevich), Michigan (ESA v. Granholm), Minnesota (ESA v. Hatch), Washington (Video Software Dealers Association v. Maleng), Missouri (Interactive Digital Software Association v. St. Louis County), Indiana (Kendrick v. American Amusement Machine Association) and Louisiana (ESA v. Foti), statutes restricting minors’ access to “violent video games” have been held unconstitutional. Similarly, statutes restricting access to violent movies have also been held unconstitutional (Video Software Dealers Association v. Webster).

It looks like it is an uphill battle for legislators with the weight of all this precedent against them, but politicians like to pick a “pet issue” and rally against it in order to gain voter support.
Spoiler:

All the courts are in agreement when it comes to these laws so it is odd that the Supreme Court would take this case. Usually, the Supreme Court only takes cases where there is disagreement in the lower courts or the case represents pressing issues of public importance. This has led some commentators to believe that the Court will actually rule in favor of California. But maybe the Court will affirm the lower courts in order to get states from continuing to pass these frivolous statutes.

ALRIGHT WHO CARES, WHAT DOES THIS MEAN FOR ME?????!!
--Well, the Court could hold that violence is the same as sex when it comes to the “obscenity” exception to First Amendment protection. This would greatly change the current regime of content-based regulation and would allow governments to place all kinds of restrictions on content that is violent. This however, is probably unlikely.

To paraphrase my Constitutional Law professor, when it comes to the First Amendment, the Court should use a scalpel and not a chainsaw. Even if the Court doesn’t equate violence with obscenity, they may make the narrow holding that banning the sale of violent video games to minors does not violate the First Amendment. Clearly, this is what California will argue for. In Ginsberg v. New York (1968), the Court held that although the State wouldn’t be able to ban the sale of nudie magazines to adults or prohibit their creation, the State was allowed to ban the sale of nudie magazines to minors by employing a variable obscenity definition which considered the material obscene for minors even if it was not obscene for adults. And more recently, with the recent First Amendment in public schools cases, (Hazelwood School District v. Kuhlmeier said it was ok for a school to delete student articles from student newspaper; Morse v. Frederick said a school could punish students for holding “Bong Hits 4 Jesus” sign at school event but off school grounds; Bethel School District v. Fraser said school could punish student for using sexual innuendo during speech at school assembly) the Court has shown that minors’ First Amendment rights are not the same as adults’ rights.

If the Court allows states to ban the sale of violent video games to minors it could have huge impacts on the industry. T-rated games might be considered “too violent” and thus have to be affixed with an “18” sticker. This might cause retailers such as WalMart to not even carry “18” games. The industry might begin to self-censor by erring on the side of caution and taking out more than is needed to comply with the statutes. Finally, if retailers are required to play all these games to determine if they need a label or not, retailers such as GameStop might just refuse to sell the biggest and longest games to minors at all for fear of violating the statutes instead of incurring the expense of reviewing every game individually. This would mean that 15-, 16-, and 17-year-olds (who most parents probably think are mature enough to make their own spending decisions) would have to get their parents to buy most of the video games they want.

So what do you guys think?
How should the Court rule?
How will the Court rule?
Is this all nothing more than old people gettin’ mad at young culture?


I will end the post with an excerpt from Judge Posner’s opinion in Kendrick v. American Amusement Machine Association:
Spoiler:

Ubik on
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Posts

  • NotASenatorNotASenator Registered User regular
    edited October 2010
    I loved reading this post and then reaching your sig at the end.

  • Raijin QuickfootRaijin Quickfoot I got the shotgun, you got the briefcase It's all in the game though, right?Registered User, ClubPA regular
    edited October 2010
    Halpin, remember how I said I'd kill you last? I lied.

  • GyralGyral Registered User regular
    edited October 2010
    Holy crap. A minimum of 2 x 2 inches for the "18". That's pretty damn big for a game case. But I guess it's better than the other alternative I heard about. I read another article on this where it was suggested that the game packaging had to be printed with a thick red border, meaning that most companies would just print the game's packaging the same for all states (most companies won't eat the additional print and packaging costs).

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  • StaleghotiStaleghoti Registered User
    edited October 2010
    How's the being a law student goin, Ubik?

    tmmysta-sig.png2wT1Q.gifYAH!YAH!STEAMYoutubeMixesPSN: Clintown
    Dear satan I wish for this or maybe some of this....oh and I'm a medium or a large.
  • Centipede DamascusCentipede Damascus ha ha just kidding I'm Frog ManRegistered User regular
    edited October 2010
    Mr. Halpin has unfortunate choice in both haircut and facial hair

  • NotASenatorNotASenator Registered User regular
    edited October 2010
    Anyone who has ever sold video games knows that most parents don't even look at the rating or anything else on the case, so I'm not sure bigger will really do it. It's like that whole bit about the bigger warnings on cigarette packages because apparently people didn't know they were harmful before.

  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    Staleghoti wrote: »
    How's the being a law student goin, Ubik?

    It's awesome. I love it. My favorite school ever

    But it's a lot of work and very time consuming

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  • Raijin QuickfootRaijin Quickfoot I got the shotgun, you got the briefcase It's all in the game though, right?Registered User, ClubPA regular
    edited October 2010
    Mr. Halpin has unfortunate choice in both haircut and facial hair

    Wonder if his nickname is The Plague.

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  • Centipede DamascusCentipede Damascus ha ha just kidding I'm Frog ManRegistered User regular
    edited October 2010
    so G&T could just rerun this strip basically

    replace the generic politician with Schwarzenegger

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  • EdcrabEdcrab Registered User
    edited October 2010
    This confused me when it was in D&D and it still confuses me now

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  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    The problem isn't really that parents don't know what's up, it's really that States don't like the message associated with the violence

    Like you see outrage against GTA and Postal 2 because they "glorify" violence but no one cares about WW2 games.

    It's not the violence that really matters, it's the message, which is the worst kind of viewpoint discrimination and the government shouldn't be involved in it

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  • Centipede DamascusCentipede Damascus ha ha just kidding I'm Frog ManRegistered User regular
    edited October 2010
    basically some people think that video games are different than films

    either that or the MPAA has a more persuasive lobbyist

  • GyralGyral Registered User regular
    edited October 2010
    I got the impression from the article I read that the law (or bill? statute?) was vague enough that there wasn't any definition of what was deemed "too violent for under 18" and that the decision was to be left to the individual developer/publisher. Which, of course, will probably be different than the people enforcing the law.

    Of course this may have changed since the article is a few months old now.

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  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    Gyral wrote: »
    I got the impression from the article I read that the law (or bill? statute?) was vague enough that there wasn't any definition of what was deemed "too violent for under 18" and that the decision was to be left to the individual developer/publisher. Which, of course, will probably be different than the people enforcing the law.

    Of course this may have changed since the article is a few months old now.

    Yeah, a real problem with these is defining violence. Like does human-on-human mean things that look human? What about gods in human form? What about violence that would easily kill a real human but is shrugged off by a character?

    Take Michigan's law which (when all the definitions are inserted) reads like this:

    A person shall not knowingly sell, lend, give, exhibit, show, or allow to examine or to offer or agree to do the same, to a minor a video game that continually and repetitively depicts real or simulated graphic depictions of physical injuries or physical violence against parties who realistically appear to be human beings, including actions causing death, inflicting cruelty, dismemberment, decapitation, maiming, disfigurement, or other mutilation of body parts, murder, criminal sexual conduct, or torture that considered as a whole, appeals to a morbid interest in committing uncontrolled aggression against an individual of minors as determined by contemporary local community standards, is patently offensive to contemporary local community standards of adults as to what is suitable for minors, and, considered as a whole, lacks serious literary, artistic, political, educational, or scientific value for minors

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  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    Also, not all the States are out to get the video game industry

    Nine States Oppose California in Supreme Court Case
    "California's statute legitimizes the off-loading of personal responsibility on to a video game," wrote Patrick Lynch, the attorney general of Rhode Island, in a brief signed by his nine counterparts.

    Also note that Oklahoma and Utah which tried to regulated video games in the past are now on the industry's side (thus is the nature of our democratic process)

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  • SnowbeatSnowbeat i need something to kick this thing's ass over the lineRegistered User regular
    edited October 2010
    that guy looks exactly like john travolta with a moustache and brendan fraser hair

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  • MrMonroeMrMonroe Registered User regular
    edited October 2010
    d(1)(A)(iii) is a profoundly silly clause to have included in the statute

    but I do not think it is necessarily unconstitutional

    (see what I did there?)

    no but seriously

    It bears noting that this is not an issue of the 1st amendment rights of children, it is about the rights of the publishers; cases legitimizing restrictions on the free speech of minors aren't particularly relevant. I would be unsurprised if they struck (B) and d(1)(A)(iii) from the statute for vagueness and for exceeding the obscenity exception respectively and left the rest as is.

    I'll throw my money on a 5-4 split on creating an exception or a 7-2 split with Scalia writing a totally petulant dissent and Kennedy joining after having fallen asleep during the oral.



    Of course there's nothing government can do that parents cannot do better if they set their minds to it, but everyone's gotta get up in their neighbor's bidness all the damn time.

  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    MrMonroe wrote: »
    d(1)(A)(iii) is a profoundly silly clause to have included in the statute

    but I do not think it is necessarily unconstitutional

    (see what I did there?)

    no but seriously

    Haha, I get that

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  • KarlKarl Registered User regular
    edited October 2010
    Whats the rulings in the UK about this?

    My brother works for GAME. He refuses to sell games to kids if he thinks they're under the age rating on the box and can't prove otherwise. And if the parent is buying it for their kid he's all "you do realize that GTA 4 is really not appropriate for your child who looks no older then 11?"

    Spoiler:
  • EdcrabEdcrab Registered User
    edited October 2010
    To my understanding part of the controversy is that in the States, it's not actually against the law to sell age-restricted content to minors (it just tends to go against store policy)

    In the UK it is illegal to supply both games and films to underage consumers, but in the States it currently isn't, so making such a law apply to games alone is pretty skewed

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  • KarlKarl Registered User regular
    edited October 2010
    Edcrab wrote: »
    To my understanding part of the controversy is that in the States, it's not actually against the law to sell age-restricted content to minors (it just tends to go against store policy)

    In the UK it is illegal to supply both games and films to underage consumers, but in the States it currently isn't, so making such a law apply to games alone is pretty skewed

    Shit its actually illegal to do that here? So if a parent buys a game for a child who's underage they're breaking the law?

    Spoiler:
  • TossrockTossrock too weird to live too rare to dieRegistered User regular
    edited October 2010
    that second guy has an incredibly punchable face

  • SnowbeatSnowbeat i need something to kick this thing's ass over the lineRegistered User regular
    edited October 2010
    Tossrock wrote: »
    that second guy has an incredibly punchable face
    Snowbeat wrote: »
    that guy looks exactly like john travolta with a moustache and brendan fraser hair

    Q1e6oi8.gif
  • UrielUriel Registered User regular
    edited October 2010
    He kinda looks like Dante Hicks.

  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    Edcrab wrote: »
    To my understanding part of the controversy is that in the States, it's not actually against the law to sell age-restricted content to minors (it just tends to go against store policy)

    In the UK it is illegal to supply both games and films to underage consumers, but in the States it currently isn't, so making such a law apply to games alone is pretty skewed

    Yea in places like Canada (from what I've read) where the ratings boards are government run, it's ok for the government to restrict access to minors

    Here in the U.S. the ratings people (the MPAA for movies, ESRB for video games, RIAA for music) are industry run and set their own age recommendations

    Stuff like television is regulated by the Federal Communications Commission (FCC) so they have more control over content but they still can't violate the First Amendment (i.e. FCC can't ban cable companies from showing stuff that is "indecent" but not "obscene")

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  • MrMonroeMrMonroe Registered User regular
    edited October 2010
    also, whomever is hired to decide for the State of California what does and does not have artistic or literary value is undoubtedly going to be the very last person I want deciding the definition of artistic or literary value

  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    MrMonroe wrote: »
    also, whomever is hired to decide for the State of California what does and does not have artistic or literary value is undoubtedly going to be the very last person I want deciding the definition of artistic or literary value

    A couple Attorneys General have made the point that this is just going to be an expensive waste of time to enforce, if it's enforced at all.

    I read an article where one police chief was like "unless parents are knocking down our door, I don't see us spending the resources to check if video games are being sold to kids"

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  • Vargas PrimeVargas Prime King of Nothing Just a ShowRegistered User regular
    edited October 2010
    Y'know... Neil DeGrasse Tyson tweeted the other day "Just Netflixed "2012." Six Billion people dead at film's end. Was prepared because PG-13 rating warned of "Mild Violence"

    That, to me, perfectly encapsulates everything that's wrong with the way people in this country think about/react to media.

  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    One of the cases about violent video games basically said:

    It's crazy how we can't let children see sexual stuff although we hope children grow up to have healthy sex lives and only few sexual things are criminalized but

    Kids can see all the violence they want but we don't want them growing up violent and violence is almost always illegal

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  • EdcrabEdcrab Registered User
    edited October 2010
    In America you love violence but shy away from boobs, in Germany boobs are embraced but violence is shunned

    In the UK and other parts of Europe, boobs and violence go hand in hand in perfect harmony

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  • PiptheFairPiptheFair Registered User regular
    edited October 2010
    god I love tyson so much

    STEAM
    Spoiler:
  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    Edcrab wrote: »
    In America you love violence but shy away from boobs, in Germany boobs are embraced but violence is shunned

    In the UK and other parts of Europe, boobs and violence go hand in hand in perfect harmony

    This is what I want

    Boobs and violence for some

    Tiny American flags for others
    Spoiler:

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  • KoshianKoshian __BANNED USERS regular
    edited October 2010
    maybe we shouldn't sell literal children violent video games. just maybe.

  • AntimatterAntimatter if you want to talk to me look elsewhere.Registered User regular
    edited October 2010
    Koshian wrote: »
    maybe we shouldn't sell literal children violent video games. just maybe.

    some of my brother's friends in first grade were playing resident evil

    christ

  • EdcrabEdcrab Registered User
    edited October 2010
    The UK system makes perfect sense to me

    Why can't you be more like us America

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  • AntimatterAntimatter if you want to talk to me look elsewhere.Registered User regular
    edited October 2010
    Edcrab wrote: »
    The UK system makes perfect sense to me

    Why can't you be more like us America

    we're utterly contrarian and it's not fair

    put us out of our misery, kthx

  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    I think it's up to the parents

    And the market

    And industry self-regulation

    Government shouldn't be involved

    (except in limited cases like broadcasts where you can't stop invisible waves from getting into your house; or the government can require parental controls on things but shouldn't be making content decisions)

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  • KoshianKoshian __BANNED USERS regular
    edited October 2010
    ahahahhaha, because over the last 10 years, we have certainly learned that businesses can certainly regulate themselves!!

  • DichotomyDichotomy Registered User regular
    edited October 2010
    and parents, the market and industry self-regulation are entirely trustworthy

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  • JoeUserJoeUser Registered User regular
    edited October 2010
    Edcrab wrote: »
    The UK system makes perfect sense to me

    Why can't you be more like us America

    harrypottervideogame006.jpg

    PSN: JoeUser80 Steam
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