The Best Parts

So after pouring over the 72-page transcript of yesterday’s Supreme Court case of Schwarzenegger v. EMA, a couple of things surprised me. As much as I’ve feared what could be a worst-possible-situation, the Justices seemed to hover on the side of reason and common sense rather than protectionism. The Justices also seemed to be much more familiar with the games industry and the games within than the California lawyers were. Over the course of the hour proceedings, it showed that some of the briefs filed by organizations, such as the ECA, did have a favorable effect for the case. I wanted to highlight a couple of quotes that I think standout and sum up the oral arguments. These are direct quotes taken from the case transcript which can be found here.

"MR. MORAZZINI: So this morning, California asks this Court to adopt a rule of law that permits States to restrict minors' ability to purchase deviant, violent video games that the legislature has determined can be harmful to the development -
JUSTICE SCALIA: What's a deviant -- a deviant, violent video game? As opposed to what? A normal violent video game?
MR. MORAZZINI: Yes, Your Honor. Deviant would be departing from established norms.
JUSTICE SCALIA: There are established norms of violence?
MR. MORAZZINI: Well, I think if we look back -
JUSTICE SCALIA: Some of the Grimm's fairy tales are quite grim, to tell you the truth.
MR. MORAZZINI: Agreed, Your Honor. But the level of violence -
JUSTICE SCALIA: Are they okay? Are you going to ban them, too?
MR. MORAZZINI: Not at all, Your Honor.
JUSTICE GINSBURG: What's the difference? mean, 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? Or does your principle extend to all deviant, violent material in whatever form?"


"JUSTICE KAGAN: Suppose a new study suggested that movies were just as violent. Then, presumably, California could regulate movies just as it could regulate video games?
MR. MORAZZINI: Well, Your Honor, there is scientific literature out there regarding the impact of violent media on children. In fact, for decades, the President, Congress, the FTC, parenting groups, have been uniquely concerned with the level of violent media available to minors that they have ready access to.
JUSTICE SOTOMAYOR: I don't think; is that answering Justice Kagan's question? One of the studies, the Anderson study, says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?
MR. MORAZZINI: No -
JUSTICE SOTOMAYOR: There are people who would say that a cartoon has very little social value; it's entertainment, but not much else. This is entertainment.
I'm not suggesting that I like this video, the one at issue that you provided the five-minute clip about. To me, it's not entertaining, but that's not the point. To some it may well be.
MR. MORAZZINI: Justice Sotomayor, cartoons do not depart from the established norms to a level of violence to which children have been historically exposed to. We believe the level of violence in these video games -
JUSTICE SCALIA: That same argument could have been made when movies first came out. They could have said, oh, we've had violence in Grimm's fairy tales, but we've never had it live on the screen. I mean, every time there's a new technology, you can make that argument."


"JUSTICE GINSBURG: Is there -- you've been asked questions about the vagueness of this and the problem for the seller to know what's good and what's bad. California -- does California have any kind of an advisory opinion, an office that will view these videos and say, yes, this belongs in this, what did you call it, deviant violence, and this one is just violent but not deviant? Is there -- is there any kind of opinion that the -- that the seller can get to know which games can be sold to minors and which ones can't?
MR. MORAZZINI: Not that I'm aware of, Justice Ginsburg.
JUSTICE SCALIA: You should consider creating such a one. You might call it the California office of censorship. It would judge each of these videos one by one. That would be very nice."


"JUSTICE SCALIA: What about excessive glorification of drinking, movies that have too much drinking? Does it have an effect on minors? I suppose so. I -- I am not just concerned with the vagueness. I am concerned with the vagueness, but I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create a -- a whole new prohibition which the American people never -- never ratified when they ratified the First Amendment. They knew they were -- you know, obscenity was -- was bad, but -- what's next after violence? Drinking? Smoking? Movies that show smoking can't be shown to children? Does -- will that affect them? Of course, I suppose it will. But is -- is that -- are -- are we to sit day by day to decide what else will be made an exception from the First Amendment? Why -- why is this particular exception okay, but the other ones that I just suggested are not okay?"


"MR. MORAZZINI: Your Honor, as to minors, I believe, looking at some of the historic statutes States had passed, had enacted in the past, there was a social recognition that there is a level of violent material -
JUSTICE SOTOMAYOR: What's the earliest statute?
MR. MORAZZINI: Pardon?
JUSTICE SOTOMAYOR: What's the earliest statute and how much enforcement was -
MR. MORAZZINI: Your Honor, I don't know the earliest statute off the top of my head. I believe they go back into the early 1900s, perhaps later. I apologize, but I don't know that –"


"MR. MORAZZINI: Again, minors as a class. So those under 18-years-old.
JUSTICE KAGAN: You think Mortal Combat is prohibited by this statute?
MR. MORAZZINI: 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.
JUSTICE KAGAN: It's a candidate, meaning, yes, a reasonable jury could find that Mortal Combat, 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."