Instant Analysis: Schwarzenegger v. EMA

November 2nd, 2010

Transcripts are up. I will be updating this space as I wade through the transcripts. [EVERYONE MUST GET TO THE CHOPPER. Sorry, couldn’t resist]

Arguments on behalf of California

Justice Scalia opened up questioning by seeking to ascertain what exactly a deviant video game is, and included a laughable quip about the grim Brothers grim.

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.

Justice Ginsburg picked up this line of questioning, and asked about the boundaries of what could be banned.

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?

Chief Justice Roberts similarly inquired why video games are different from other forms of expression.

CHIEF JUSTICE ROBERTS: I think that misses Justice Ginsburg’s question, which is: Why just video games? Why not movies, for example, as well?

MR. MORAZZINI: Sure, Your Honor. The California legislature was presented with substantial evidence that demonstrates that the interactive nature of violent — of violent video games where the minor or the young adult is the aggressor, is the — is the individual acting out this — this obscene level of violence, if you will, is especially harmful to minors.

Likewise, Justice Kagan inquired if there was a study showed that movies were equally violent, could California regulate movies?

Next, Justice Sotomayor inquired if Congress can “outlaw Buggs Bunny,” which a study showed to be as violent as a violent movie.

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?
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.

Sotomayor also inquired how this case is distinguishable from United States v. Stevens, which considered the constitutionality of a ban on so-called “crush videos.” SCOTUS struck it down 8-1, with only Justice Alito dissenting. The attorney distinguished the case because this law affects “the rights of minors.” Oh, think of the children!

JUSTICE SOTOMAYOR: How is this any different than what we said we don’t do in the First Amendment field in Stevens, where we said we don’t look at a category of speech and decide that some of it has low value? We decide whether a category of speech has a historical tradition of being regulated. Now, other than some State statutes that you point to, some of which are very clearly the same as those that we struck down in Wynn, where is the tradition of regulating violence?

MR. MORAZZINI: Your Honor, California submits that when the rights of minors are at issue and not the rights of adults, the standard should be more flexible. The Constitution should recognize that when the audience is minors the same standard should not apply. Therefore, the question should not be whether or not historically violent speech was regulated, but whether or not the Constitution guarantees minors a right.

Next, Justice Sotomayor asks if the state could ban rap music. Mr. Morazzini argued that rap is not “directly harmful to the development of minors in the way that we know that violent video games can be.”

Justice Alito inquired what age group the statute targeted. Not everyone under 17 is in the same situation. Justice Ginsburg also noted that the statute does not distinguish between 4-year-olds and 17-year-olds.

JUSTICE ALITO: How can they — how can they do that? Isn’t the average person likely to think that what’s appropriate for a 17-year-old may not be appropriate for a 10-year-old or an 8-year-old?

JUSTICE GINSBURG: But California doesn’t do that. California has in big letters “18.” So it’s not is it okay for a 7-year-old, is it okay for a 12-year-old. Part of this statute requires labeling these video games in big numbers “18.” So it’s 18 and California doesn’t make any distinctions between 17-year-olds and 4-year-olds.

Justice Breyer, seemed to want to set the relevant standard at 18. If something was inappropriate for a 18-year-old, then it certainly would be inappropriate for a 12-year-old

JUSTICE BREYER: Why wouldn’t you, if necessary, simply say that a video game that appeals to the prurient, shameful, or morbid interests of those 18 — or under, but let’s take 18 — and it’s not suitable in the community for those 18, and it has no redeeming importance of any kind, no serious literary, artistic, political, or scientific value for those 18, that at least as to those, you can’t sell it without — the parent can buy it but the child can’t buy it. So you can’t sell to a 12-year-old something that would be horrible for an 18-year-old. Is that — would you be willing to accept that if necessary to make this okay on its face?

Justice Kagan inquired how the state would “define morbid violence.” Mr. Morazzini looked to features including “maiming, killing, dismembering, torturing, sexually assaulting, and those types of violence.”

Justice Kennedy, chose not to ask a question, but wanted to “make one comment.” I wonder if he rehearses these. Kennedy closes with “I just thought you would like to know that — that reaction.” IN other words, “Just say’in”I

JUSTICE KENNEDY: Let me just make one comment on that point. It seems to me all or at least the great majority of the questions today are designed to probe whether or not this statute is vague. And you say the beauty of the statute is that it utilizes the categories that have been used in the obscenity area, and that there’s an obvious parallel there.

The problem is, is that for generations there has been a societal consensus about sexual material. Sex and violence have both been around a long time, but there is a societal consensus about what’s offensive for sexual material and there are judicial discussions on it. Now, those judicial discussions are not precise. You could have had the same questions today with reference to an obscenity statute, and we have — we have said that, with reference to obscenity there are certain — that there are certain materials that are not protected. Those rules are not precise at the margins and some would say not precise in a more significant degree as well.

But you are asking us to go into an entirely new area where there is no consensus, no judicial opinions. And this is — and this indicates to me the statute might be vague, and I just thought you would like to know that — that reaction.

Justice Scalia resisted the movie to exclude from freedom of speech “portrayals of violence.” Nino invoked the Framers of the First Amendment (even though the relevant provision is really the 14th amendment):

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?

Justice Alito pokes some fun at Scalia (rightfully so):

ALITO: Well, I think what Justice Scalia wants to know is what James Madison thought about video games.
JUSTICE ALITO: Did he enjoy them?
JUSTICE SCALIA: No, I want to know what James Madison thought about violence. Was there any indication that anybody thought, when the First Amendment was adopted, that there — there was an exception to it for — for speech regarding violence? Anybody?

LOL. This reminds me of oral arguments during McDonald when Justice Breyer inquired about James Madison’s “ordered liberty chart.

In response to a later question by Justice Breyer, Mr. Morazzini discounts any reliance on originalism, as he “find[s] it hard to believe and I know of no historical evidence that suggests that our Founding Fathers in enacting the First Amendment intended to guarantee video game retailers a First Amendment right.”

Justice Ginsburg asked if California offers “Advisory opinions” of how a video game will be rated. The state has no such office. Justice Scalia quipped that the state should open an Office of Censorship.

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 Kenendy inquired about the V-Chip, which is limited to television programming, not video games.

JUSTICE KENNEDY: V-Chips don’t work?
MR. MORAZZINI: I believe the V-Chip is limited to television, Justice Kennedy.

Arguments on behalf of Entertainment Merchants Association

Chief Justice Roberts sensed a difference between merely reading a book, and playing/interacting with the video games (obviously he has never gotten into a really good book, much more realistic than any first-person shooter).

CHIEF JUSTICE ROBERTS: What about the distinction between books and movies may be that in these video games the child is not sitting there passively watching something; the child is doing the killing. The child is doing the maiming. And I suppose that might be understood to have a different impact on the child’s moral development.

Justice Ginsburg comments on the pornographic magazines involved in Ginsberg. It’s just funny to hear Justice Ginsburg say “girlie magazines.”

JUSTICE GINSBURG: But the material wasn’t obscene. They were girlie magazines, I imagine to today’s children they would seem rather tame, the magazines involved. But they were definitely not obscene with respect to adults.

Justice Breyer inquires about the “common sense” of allowing the state to ban violent video games.

JUSTICE BREYER: Talking about common sense, why isn’t it common sense to say that if a parent wants his 13-year-old child to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing
violence upon small children and women and do this for an hour or so, and there is no social or redeeming value, it’s not artistic, it’s not literary, et cetera, why isn’t it common sense to say a State has the right to say, parent, if you want that for your 13-year-old, you go buy it yourself, which I think is what they are saying

Justice Breyer takes off his judicial robe and puts on his sociologist hat, as he parses competing studies. (Just don’t ask him to be a historian. That is totally beyond the capacity of Judges).

JUSTICE BREYER: It does, it does. What it has is — and I have looked at the studies, perhaps not as thoroughly as you. But it seemed to me that Dr. Ferguson and Dr. Anderson are in a disagreement. They aren’t in that much of a disagreement actually, but they have looked in depth at a whole lot of video games, not movies they are talking about or other things; they are talking about video games.
And both groups come to the conclusion that there is some tendency to increase violence. And the American Psychiatric — Psychological Association, the American Pediatric Association, sign on to a long list on I think it is the Anderson side that this does hurt children.
I have to admit that if I’m supposed to be a sociological expert,. I can’t choose between them. If I
can say could a legislature have enough evidence to think there is harm, the answer is yes.

Philosophizing, Justice Breyer inquires what the difference is between sex and violence.

JUSTICE BREYER: You mean love is not something that people have tried to encourage children to understand and know about? I mean, what’s the difference between sex and violence? Both, if anything

In some cases, not much. Chief Justice Roberts, though, sees a difference.

CHIEF JUSTICE ROBERTS: Graphic violence. There is a difference. 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.
I’m reading from the district court description: Pour gasoline over them, set them on fire and urinate on them. We do not have a tradition in this country. We protect children from that. We don’t actively expose them to that.

EMA was not willing to allow any type of ban on video games based on violence. Even if the state were to enforce a civil penalty based on the voluntary ESRB ratings, it would be unconstitutional.

MR. SMITH: What that would do is transform the ESRB, the private voluntary system that exists, into the censorship commission that this Court struck down in Interstate Circuit. When the government does that and you have to go to them for permission to allow kids into the movies or to play this game, it is a prior restraint. You have way too much discretion. It’s a licensing authority that the First Amendment doesn’t

Justice Alito notes that this is a new form of speech, not envisioned at the time of the ratification of the First Amendment.

JUSTICE ALITO: But we have here a new — a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified. …
So this presents a question that could not have been specifically contemplated at the time when the First Amendment was adopted. And to say, well, because nobody was — because descriptions in a book of violence were not considered a category of speech that was appropriate for limitation at the time when the First Amendment was violated is entirely artificial.

Some originalism and expectation-type originalism discussions here, but I’ll get into those at another time.

Chief Justice Roberts seems to be open to permitting a more narrowly-tailored statute that would survive scrutiny. If this case is 9-0, expect Robert’s additional vote to perhaps temper the range of the opinion.

CHIEF JUSTICE ROBERTS: And the way we approached the issue in Stevens, where we had hunting videos and crush videos, would say that it’s too broad to apply the law to everything, so we strike it down, it’s overbroad, but leave open the possibility that a more narrowly-drawn statute might pass muster.
Why isn’t that a good approach here?

Justice Alito attempts to corner Mr. Smith on whether the state can make any law regulating violent video games. Smith answers that no such law could meet strict scrutiny analysis.

JUSTICE ALITO: Let me be clear about exactly what your argument is. Your argument is that there is nothing that a State can do to limit minors’ access to the most violent, sadistic, graphic video game that can be developed. That’s your argument -MR.
SMITH: My position is -JUSTICE
ALITO: Is it or isn’t it?
MR. SMITH: My position is that strict scrutiny applies, and that given the facts in the record, given the fact that the — the problem is already well controlled, the parents are empowered, and there are great and less alternatives out there -JUSTICE
SOTOMAYOR: So when you say -MR.
SMITH: There isn’t any basis to say
scrutiny is satisfied.

CHIEF JUSTICE ROBERTS: Could I just have a simple answer?
MR. SMITH: The answer is yes, Your Honor.
CHIEF JUSTICE ROBERTS: There is nothing the State can do.

Smith really cornered himself into a wall here. This may prove to be an imprudent concession.

Chief Justice Roberts asks if the state can place the most violent video games on the top shelf, like they do with cigarettes.

MR. SMITH: Except that cigarettes are not speech, Your Honor. This is fully protected speech.
CHIEF JUSTICE ROBERTS: I know that cigarettes are not speech, Mr. Smith. Cigarettes are something that we have determined are harmful to children. The question is, you say the record doesn’t support the idea that these video games are harmful to
children. Some of us may conclude that it does.

Chief Justice Roberts next draws an analogy to 8th amendment jurisprudence, and alcohol laws, where minors are treated differently from adults.

CHIEF JUSTICE ROBERTS: We draw that kind of line of course in the death penalty area, don’t we? Between 18-year-olds? You are under 18; you can’t be sentenced to life without parole; if you were over 18 you can.
MR. SMITH: You do draw that line, Your Honor.
CHIEF JUSTICE ROBERTS: And we do it for drinking; we do it for driving.

Interesting that Roberts cites Graham v. Florida, in which he concurred.
Towards the end, the Justice’s really geeked out.

Justice Kagan had quite the memorable quote in Schwarzenneger v. EMA:

JUSTICE KAGAN: It’s a candidate, meaning, yes, a reasonable jury could find that Mortal Combat [sic], 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 talk[ing] about.

I guess Justice Scalia’s clerks never played Mortal Kombat. Finish him!

Justice Sotomayor showed that she is the bit of a Star Trek fan, asking about torturing Vulcans.

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?