Supreme Court Hears Oral Arguments In Schwarzenegger v. EMA

This morning the Supreme Court heard oral arguments in Schwarzenegger v. EMA, a case addressing whether states can ban the sale of violent video games to minors without also violating the First Amendment. The Comic Book Legal Defense Fund wrote a brief in support of the video game industry, urging the court to to affirm the Ninth Circuit’s decision that a California law banning the sale or rental of any video game containing violent content to minors, and requiring manufacturers to label such games, is unconstitutional. The CBLDF brief emphasizes the history of moral panic that led to the comics industry being decimated in the wake of government scrutiny in the 1950s.

Early reports from oral arguments indicate that members of the court were “sympathetic” to the California law, but strongly questioned its constitutionality. The AP reports:

“Several justices, including Antonin Scalia, Ruth Bader Ginsburg and Anthony Kennedy, noted that entertainment forms like comic books, movies, rap music and even children’s fairy tales can also be violent but are not regulated by the state.

Those justices said the law, which has never been enforced, could be considered vague. They suggested that it might encroach on First Amendment rights.”

Businessweek cites this telling remark:

“What’s next after violence?” Justice Antonin Scalia asked. “Drinking? Smoking?”

MSNBC runs detailed reporting and analysis from Kotaku’s Stephen Totlio:

A decision by the Court in favor of the video game industry would likely end California’s pursuit of laws against violent games and leave restrictions against games to the industry’s ratings board and to parents.

A decision in favor of California would make video games the only type of media content in the United States that can be illegal to sell to children based on severity of violent content, a decision that would affirm that games have distinct affects on a young audience that other forms of entertainment do not — or that that the speech in games is not seen meriting the same protection as that in other media.

A full transcript of this morning’s arguments has been made available here.

Full coverage of oral arguments will follow in the days to come.

In recent days, several outlets have come out against the California Law.

Last Friday USA Today issued a strongly worded editorial blasting the law. USA Today writes, “You can’t blame parents for wanting to shield their children from these sorts of games. They should. But the legal question to be argued at the Supreme Court on Tuesday is whether government — in this case, the state of California — has a role in deciding which games ought to be banned. We think not.”

The LA Times editorial board blasts the law, stating: “This page believes that the law is neither wise nor necessary, and that it’s the responsibility of parents, aided by a voluntary ratings system, to protect their children from entertainment they consider inappropriate.”

The Atlantic also speaks out against the law, even name checking the CBLDF: “More than two dozen entertainment and media companies, moral-reform groups, and civil liberties organizations have filed amicus briefs in this case. By far the coolest is from the Comic Book Legal Defense Fund. That brief reminds the Court of an episode I am just old enough to remember–the systematic government destruction of the vibrant postwar comic-book industry.”

With the combined weight of the entertainment and editorial establishment standing against the law, the Supreme Court decision, expected by July, will be eagerly anticipated.