Editorial: Oral Argument Analysis in Schwarzenegger v. Entertainment Merchants Association

Is there a problem with violence and/or other adult themes in video games?

The last time I spoke on this very topic people were more interested in a photoshop of Arnold Schwarzenegger in a bathing suit that patient legal analysis, which is to be expected from this lot, I suppose.

Now the justices have heard oral argument. For the uninitiated, oral argument is that magical moment in an appellate attorney’s life when we get to be as cool and flashy as our trial lawyer counterparts, but without their sheer animal magnetism. It is akin to the stuffiest of stuffy professors asking rapid-fire questions of that annoying student in class that just has to have an answer for everything.

It is what I live for.

I have thus far been able to unearth a transcript of the oral argument, but many sources, including my fave SCOTUSblog, have been discussing the oral argument in nerdy detail. For an idea of just how hard appellate attorneys geek over this stuff, it would be something like Shawn getting to read the developer’s transcripts from Nintendo offices when they get to make up new Poke-things.

Justice Ginsburg
Totally pwns noobs in Call of Duty while her clerks watch in awe.

In short, those of you that wanted to side with Truth, and Freedom, and the Right of Kratos to Totally Slaughter Some Motherfuckers seem to have “won,” though we will not actually see the decision for some time. Some of the justices, including Antonin Scalia suggested that new technology always departs from “established norms” and will always been seen as more prone to moral corruption.

Justice Ruth Bader Ginsburg, on the other hand, was quick to note that California law does not make a distinction between 4-year-olds and 17-year-olds, although clearly what is age-appropriate would be vastly different for the two ages.

Life was not all sweets and properly-formatted briefs on crisp new paper for the video games industry. Their lawyer made what most of us would consider to be a fairly conventional argument, that depictions of violence have always been a part of children’s entertainment in this country. Chief Justice John Roberts (who is probably not a fan of Poke-things), rejoined that “We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down … Pour gasoline over them, set them on fire and urinate on them …We protect children from that. We don’t actively expose them to that.”

Now, admittedly, I am not familiar with the game that contains all of these elements, and quite frankly, I am not sure that I would want to.

Justice Scalia
Little known fact: Justice Scalia's guild Mens Mentis Exemplar was the first to kill the Lich King on the US Roleplaying server Moon Guard, where he is known as the 'Scourge of Goldshire.'

Things remained rocky for the video games lobby. Their justice committed the elementary mistake of not telling the justices what kind of regulation would satisfy him. From a tactical standpoint, this is akin to admitting that one could never be convinced by his opponent’s position. This did not sit well with Justice Sotomayor, who stated, “How can you say that? There is still proof out there and an abundance of it that kids are buying these games.”

This makes it difficult to predict how the argument will pan out; unlike more politicized issues, where the Court divides along fairly stark ideological lines, this issue spans the liberal/conservative divide and reaches across all philosophies of Constitutional construction. Were I to guess, I would hazard that the California law will be found unconstitutional, but a significant amount of dicta, or perhaps a concurrence written by Kagan, Scalia or Sotomayor will be devoted to exactly what kind of law would have satisfied the Court.

In the evolving area of regulation of new and emerging content, this is but the opening salvo by a government looking to regulate children’s access to violent media. Digital delivery, online content, downloadable content, and so on will continue to create ways to perplex and challenge legislators attempting to keep up with emerging trends. Perhaps we, as gamers, ought to be more involved in the process, so that our hobby is not regulated by outsiders.


  1. It’s nice to see the SCOTUS justices acknowledge that they’re prone to being overreactive, paranoid morons when it comes to new things.

    It also seems kind of ironic to see Ahnuld at the helm of a law to make sure children only get wholesome, family entertainment. His only movie was Jingle All the Way, right?

  2. Violent games are bad for young minds, but Commando is fucking Shakespeare!

  3. I’m sure Arnold has very little to do with the prosecution of this case. The way it works is: the California Legislature passes a law, and then the law gets challenged. Attorneys for the State of California, working at the behest of the governor, are then required by law to defend it. Sometimes (and rarely) the government refuses to defend a law (such as Proposition 8), but in this case, they decided to push forward.

    And EP, I’m not sure the justices are overreactive. The Legislature, sure, but we expect legislators to be more easily moved by passion than by reason. Not so for the court.

  4. I was shocked when I found out that Justice Scalia, the old school conservative of legend, was actually on the side of EMA and acknowledged that, as the old man he is, new technology is always going to be a change from the way it was in “the good ol’ days.” His personal opinion is probably one of disgust, but you can’t help but admire the intelligence of professionalism of the man.

    His Harvey Birdman appearance also helps: http://tinyurl.com/29crvbp
    I would pay good money to see some fat old Supreme Court Justice throwing gang symbols.

  5. Scalia doesn’t bullshit. He’s said some things I really, really disagree with, and made some decisions with things like recusal or on economic issue cases that I find distasteful, but he is the best legal reasoner on the court. His mind is an engine of terrible logic.

    Scalia probably loves telling his kids violent tales of Catholic triumph over Protestant heresy, but let’s be honest… we all love a good witch burning.

  6. I seem to recall Scalia rendering a few opinions regarding torture that were offensively stupid and appalling. Something like “If your interrogators are just electrocuting your taint for their own lulz rather than for punishment it’s not torture/a violation of the Eighth Amendment.” He’s sort of your typical conservative in that regard I think. Semi-principled and unreliable.

    I don’t mean to derail, so I guess what I’m saying is I agree the man is nothing close to an idiot, but like a broken clock he can be right twice a day.

  7. So witch burning for the lulz is still okay? Awesome.

    If we’re going to talk about Scalia’s views on tormenting people, you also have to consider that the man is a strong advocate for the death penalty. In the eyes of a lot of people, that’s also cruel and unusual, even bordering on unconstitutional if you ask the right person. I think interpreting his views and his previous rulings (or those of any other other Justice for that matter) all depends on your own standpoint. At least, that’s how it seemed to me when watching or reading all the reports when Alito, Kagan, and the other recent Justice all went through their preliminary question hazing before getting their position; their rulings were all picked apart by people that disagreed with it on an emotional level rather than in an objective “how does the law apply?” kind of way.

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