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The 10 best moments from the Schwarzenegger v. EMA's Supreme Court oral arguments

4: Justice Kagan’s law clerks love Mortal Kombat

JUSTICE KAGAN: You think Mortal Kombat 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 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.

JUSTICE SCALIA: I don't know what she's talking about.

First of all: what? The lawyer who is advocating that violent video games be regulated hasn’t played Mortal Kombat, one of the most iconic violent video games of all time? Weird. Didn’t he do any research?

Some might say that because this lawyer is so ignorant, he’s somehow emblematic of the unfounded moral panic all over America regarding violent video games. That’s probably not quite fair: after all, this lawyer didn’t make the law - he’s just trying to get it passed. After all, how is he supposed to know every game ever made, and whether or not it fulfills the obscenity test? Having an encyclopedic knowledge of every violent game ever made is more our bag, anyway. But if you’re going to name-check a game, at least hire a kid to play it for you so you can watch. You’re getting paid for this, right? Do you want the Supreme Court to think you’re a lousy lawyer?

What does this mean for the future? In terms of the outcome of this case, not a ton. At the very least, this exchange shows that Justice Kagan, like Justice Sotomayor, is capable of understanding the nuances of how videogames are played, and it also means she’s not so out of touch as to not know which games might be “candidates” under this law for regulation. Plus, it’s kind of cool to know that as a kid, you can grow up playing Mortal Kombat all day and still end up clerking for a Supreme Court Justice. Strange that those MK-playing kids made it so far in their careers without being inspired to murder someone.


3. Justice Sotomayor really knows what she’s talking about, part 2

JUSTICE SOTOMAYOR: Would a video game that portrayed a Vulcan, as opposed to a human being, being maimed and tortured - would that be covered by the act?

MR. MORAZZINI: No, it wouldn't, Your Honor, because the act is only directed towards the range of options that are able to be inflicted on a human being.

JUSTICE SOTOMAYOR: So if the video producer says “this is not a human being, it's an android computer simulated person,” then all they have to do is put a little artificial feature on the creature and they could sell the video game?

MR. MORAZZINI: Under the act, yes…

Justice Sotomayor just made a reference to Vulcans and androids in a Supreme Court argument! That’s awesome. Not only did Justice Kagan bring up a great point about the shortcomings of the second prong of the California law (killing, maiming, torturing, dismembering, etc. on the “image of a human being”), but she got the entire courtroom thinking about Star Trek for a good five minutes.

Above: Now that we’re on the subject, does Mr. Spock, a half-human, half-Vulcan, receive protection against fictional bodily harm under the California law? These are important questions of the day! 

What does this mean for the future? With any luck, Schwarzenegger v. EMA will become super-famous, and creative companies who get charged with obscenity from now on will assert “the Vulcan defense” in order to get out of liability for showing the graphic deaths of creatures who only “look” human. If nothing else, we are super-stoked for the inevitable flash games, no doubt already being made by smartass programmers nationwide, that will depict gratuitous and horrific violence toward Vulcans, cylons, Ewoks, and Teletubbies. Now that we mention it, swap our nerve-pinching friends the Vulcans with those pesky Romulans and we’d actually play that game.


Above: Yes, we know Vulcans have green blood and not red - we were hoping YOU didn’t know


2. “A chilling effect on the industry as a whole”

JUSTICE SCALIA: But a law that has criminal penalties has to be clear. And how is the manufacturer to know whether a particular violent game is covered or not?

There are a number of parties, including the EMA, the folks attending the rally, and other commentators who argue that by passing this law, it will be harder for the game industry to make games. They say that by not knowing whether their game will be considered protected speech or not, game developers will take fewer risks in their game designs.

We spoke with a developer who was at the rally, they told us that a number of game merchants had requested explanatory materials and guidelines from the California government about how to make their games appropriate for minors, only to be refused. California’s reasoning is that it should be up to a jury, following the three-pronged test, to make such determinations. Well, that’s fine, except by the time a jury gets involved, a game manufacturer has already been fined and brought to court.


Above: A rally attendee is not pleased with this idea 

On the other hand, it may be overreacting a bit to say that this law will turn all videogames into Mario Teaches Typing clones. There will always be a market for mature games, regardless of whether kids can get at them or not. In fact, you might argue that this law would encourage developers to start making better, actually mature games, instead of putting as much effort as they do into working on blood-splatter physics.

What does this mean for the future? Interestingly, one of the strongest arguments against the California law has nothing to do with the First Amendment. Rather, it comes from the idea that the Supreme Court doesn’t like approving laws that have a negative effect on interstate commerce. If California passes the law, videogame merchants may be stifled, and therefore the national sale of videogames could be affected as well. We all know that videogames are a multi-billion dollar, global industry - these economic concerns might have a real affect on the Supreme Court’s decision.


1. James Madison: gamer extraordinaire

JUSTICE SCALIA: … 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 [exceptions for portrayals of drinking and smoking in media] are not okay? …

JUSTICE ALITO: Well, I think what Justice Scalia wants to know is what James Madison thought about video games.

The Supreme Court Justices have a pretty tough job, you know? Every day they have to interpret a document that’s over 200 years old, written by people who could have never anticipated the types of problems we face today. Are interactive, electrically generated images, shapes and sounds commercially exchanged between parties a protected form of speech? If you asked James Madison the question, you’d lose him at the word “electricity.” He’d then probably call you a witch.

What does this mean for the future? Throughout history, every time a new medium of communication springs up, people freak out over whether or not it presents a danger to society. People freaked out over rock and roll, people freaked out about comic books, and people even freaked out about pinball. Videogames are today’s new medium. That doesn’t mean videogames will or won’t turn out to be protected speech.

Let’s keep this case in perspective. Videogames aren’t going anywhere. Gears of War 3 is still coming out, and people (and minors) will still buy it. So don’t stress. It’ll be OK.

And if it isn’t, we can always move to Canada.

Nov 3, 2010

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56 comments

  • TheBear - April 6, 2011 1:45 a.m.

    Maybe it's different in California, but here in Ohio, no retailer will sell M-rated games to any one under 17 any way. If California retailers have the same policy, I'm not sure what the problem is.
  • Killshot - November 5, 2010 10:45 p.m.

    Way to photoshop Juno buying a game for her baby
  • philipshaw - November 5, 2010 1:13 p.m.

    Very informative, I feel I know a lot more about this case than I did before reading this
  • OddWoN ER - November 5, 2010 3:12 a.m.

    i find it horrible that it's ok to physically or sexually abuse Vulcans, puppies, and ewoks, but bad to harm humans... i thought tho whole violence is bad argument was that any form of violence witnessed by a person would be detrimental.... this law fails big time also. Schwarzenegger=killing machine. he's murdered 100s possibly 1000s of people on screen...
  • evilsanta - November 4, 2010 10:02 p.m.

    thank god i already live in canada. drinking age 19, Mature game buying age 17 and of course all the maple syrup we can ever want.
  • zymn - November 4, 2010 9:52 p.m.

    i do believe i want to take Justice Kagan out to lunch sometime. Hell, i never thought the Supreme Court was filled with such badasses.
  • Life - November 4, 2010 8:48 p.m.

    Someone give Sonia Sotomayor a high five.
  • superdude22 - November 4, 2010 8:25 p.m.

    Yes, come to Canada. Here, we will give you any games you want and enough maple syrup to fill a pool
  • Zeb364 - November 4, 2010 7:53 p.m.

    I love the assumption that this going through won't affect us in Canada.
  • Gahmah - November 4, 2010 6:57 p.m.

    I VERY MUCH LIKED THIS ARTICLE. Thanks GamesRadar and Joe Newman! Love law and stuff, reading this article reminded me why I like the scotus so much.
  • TheTrooper424 - November 4, 2010 6:19 p.m.

    This article was brilliant. I tip my hat to you Gamesradar staff.
  • Aletheon - November 4, 2010 4:59 p.m.

    Sotomayor Is an evil hag.
  • Basilisk1991 - November 4, 2010 4:52 p.m.

    So now there is a Vulcan loophole, nice way to make your law pointless, games like GoW and such will be OK, because chainsawing aliens in half is OK with the Californians, even if the aliens LOOK human
  • HerpMcDerp - November 4, 2010 4:33 p.m.

    Pheonix Wright could fix this...
  • bschroth - November 4, 2010 4 p.m.

    Thanks for this article. I'm 26 and live in Canada, so this won't really change anything for me. I'm just happy that this write up has quotes and it's not just a boring ass recap of the events. Wooooo!!
  • epenn03 - November 4, 2010 2:49 p.m.

    You can argue that movies are an artful medium by default after watching Battlefield Earth? haha, I think video games can be art, even if some are viewed as crappier than others.
  • Lionzest7 - November 4, 2010 2:09 p.m.

    leave vidya games alone mang! But yeah seriously, the last thing anyone needs is more government breathing down their neck.
  • Stahlbrand - November 4, 2010 1:29 p.m.

    Good article.
  • Clovin64 - November 4, 2010 1:20 p.m.

    Is it illegal to murder someone in real life if they were dressed as a Vulcan? How was I to know they were human? I plead the Vulcan Defence.
  • hester2 - November 4, 2010 12:45 p.m.

    My favorite Scalia quote: "I don't know what she's talking about."

Showing 1-20 of 56 comments

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