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By now, you’ve probably heard about what went down at the Supreme Court yesterday during the oral arguments for Schwarzenegger v. EMA, the case regarding California’s proposed law prohibiting the sale of certain violent video games to minors. You might have heard that half of Justice Elena Kagan’s clerks played Mortal Kombat as teenagers, or that human-on-Vulcan torture is not considered obscene by the state of California. If you want to look at the whole 60-page court transcript of the oral arguments, go ahead - it’s a surprisingly quick read. But in the meantime, we at GR were there for both the oral arguments and all the crazy happenings outside the courthouse, and we’ve compiled a list of 10 of the day’s best moments for you, along with a little sprinkling of harmless speculation as to what this whole mess is going to mean for the gaming community.
JUSTICE GINSBURG: Does California have any kind of an advisory… office that will view these [videogames] and say, yes, this [game] belongs in ... “deviant violence…?” … Is there any kind of opinion that…the seller can get to know which games can be sold to minors and which ones can't?”…
JUSTICE SCALIA: You should consider creating such a one. You might call it the “California office of censorship.” It would judge each of these [videogames] one by one. That would be very nice.
Some might say Justice Antonin Scalia is conservative to the point of absurdity. Others might say he’s the worst thing to happen to the Supreme Court in decades. One thing you can’t deny - man knows how to deliver a zinger. If the Supreme Court was Saturday Night Live, Scalia would be David Spade - nobody really likes the guy so much, but as long as you’re not on the receiving end of his insults, yeah - you’ll probably laugh, if out of no other reason than schadenfreude…
What will this mean for the future? California’s game law is surprisingly vague as to what constitutes the type of videogame that kids shouldn’t be allowed to play. Throughout the oral arguments, the Supreme Court Justices attacked the lawyer representing Schwarzenegger and the State of California, seeking clarification on how California’s violent videogame law would actually be applied should the Supreme Court approve it.
The answers, as you’ll see throughout the oral arguments, are kind of ridiculous. But that’s just one of the big problems California faces with regards to this law is applied: the more effort it takes for a State to determine whether or not something is “obscene,” the more the State ends up looking like it shouldn’t have been involved to begin with.
BREYER: Why isn't it common sense to say [that] a State has the right to say, “Parent, if you want [an extremely violent game] for your 13-year-old, you go buy it yourself,” which I think is what they are saying?
It would certainly seem that if anyone on the Supreme Court likely wants to see the California bill get passed, it’s Justice Breyer. Breyer clearly wants to find some way to keep violent videogames out of the hands of minors - he is convinced by the studies that say violent videogames cause harm to kids (yes, thoooooose studies), and he believes that states can legislate and regulate commercial industries based solely on what he calls “common sense.”
What does this mean for the future? Fair enough, Justice Breyer - if you truly believe the studies show a fundamental link between games and violence, you may believe that there’s something that needs to be done to protect kids from the violent videogame “threat.” It’s worth noting that under Breyer’s view of the situation, preventing harm to minors is considered to be more valuable than preserving the rights of game manufacturers to protected speech - under a strict interpretation of this view, even a game many see as having a redeeming social value, like Medal of Honor, if it was considered harmful to minors, might be regulated.
We’d be pretty willing to wager that the Supreme Court is not going to force California to conform to Justice Breyer’s interpretation of “common sense.” Most of the court’s criticisms of Schwarzenegger’s law involved the law being too vague: relying solely on “common sense” to make and enforce laws isn’t really much better of an alternative.
JUSTICE SOTOMAYOR: So what happens when the character gets maimed, [his] head chopped off, and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven't been maimed and killed forever. Just temporarily.
Gamers should like Justice Sonia Sotomayor. Unlike the other Justices who openly admit to knowing next to nothing about the actual world of videogames, Sotomayor asked probing question after probing question to the lawyer for California. Not just good legal questions; questions that proved she knew games. That’s pretty awesome. See, here’s the test the prosecution seems to be suggesting would be sufficient to determine whether a game can be sold to minors under the California law:
The second step of the test involves whether or not there is “killing, maiming, dismembering, or sexually assaulting an image of a human being” within the game being tested. One of Sotomayor’s biggest influences in the oral argument yesterday involved tearing this particular requirement apart. What if the person you kill in a shooter respawns seconds later? Did you really “kill” him?
What does this mean for the future? For Schwarzenegger v. EMA, probably not much - most of the other Justices on the bench had no idea what Justice Sotomayor was talking about here. Plus, this comment was made after it was pretty clearly established by the Justices that the California law was vague, so it’s doubtful that this comment alone will sway any Justice’s opinion. Still, it proves that Sotomayor knows at least a little bit about how videogames actually work, even if she can’t personally pull off Reptile’s Acid Spit fatality. Take what you can get!
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