Objection! #6: Analyzing the Supreme Court's EMA Hearing

The gaming industry's a big business -- and sometimes, companies don't see eye-to-eye. And what happens when a dispute goes to court, and gamers get their grubby hands on fancy-sounding legal documents? Why, wild, inane, forum-fueled speculation, of course. That's where California-based corporate attorney and GameSpy writer Eric Neigher comes in. Objection! is your one-stop destination to learn what all that legalese means in plain English, straight from someone who knows the twisty-turny language of the law.



The Schwarzenegger v. EMA Hearing

Yesterday, the U.S. Supreme Court heard arguments on both sides of the Schwarzenegger v. EMA case concerning how the law treats violent video games. Today, we've got the full unedited court transcript for your reading pleasure, along with expert commentary to help walk you through some of the legalese. Fair warning: This is a beast, so pour yourself a tall drink (and perhaps make something delicious to eat) before you dive in!


Washington, D.C. Tuesday, November 2, 2010

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:04 a.m.

APPEARANCES: ZACKERY P. MORAZZINI, ESQ., Supervising Deputy Attorney General, Sacramento, California; on behalf of Petitioners.

PAUL M. SMITH, ESQ., Washington, D.C.; on behalf of Respondents.

(10:04 a.m.)

CHIEF JUSTICE ROBERTS: We will hear argument first this morning in Case 08-1448, Schwarzenegger v. Entertainment Merchants Association.


ORAL ARGUMENT OF ZACKERY P. MORAZZINI ON BEHALF OF THE PETITIONERS

MR. MORAZZINI: Mr. Chief Justice, and may it please the Court:

The California law at issue today before this Court differs from the New York law at issue in Ginsberg in only one respect. Where New York was concerned with minors' access to harmful sexual material outside the guidance of a parent, California is no less concerned with a minor's access to the deviant level of violence that is presented in a certain category of video games that can be no less harmful to the development of minors.

Eric says: What Mr. Morazzini refers to here is a pivotal case in First Amendment law called "Ginsberg v. New York" (390 U.S. 629), which involved a guy named Ginsberg selling a couple girlie magazines to some 16-year-old boys from his stationery store. Ginsberg argued that it was unconstitutional for the law to give some Americans the right to free speech -- including the right to view porn -- and not others, based on their age. The Supreme Court of the U.S. (hereinafter "SCOTUS") disagreed with Ginsberg and said that just because something isn't harmful for adults doesn't mean it's not harmful for minors. California is using Ginsberg in this case as an example of why the rights of certain Americans (i.e., adults) to play so-called "violent" video games are protected by the Constitution, while the rights of juvenile Americans to do so isn't.

When this Court in Ginsberg crafted a rule of law that permits States to regulate a minor's access to such material outside the presence of a parent, it did so for two fundamental reasons that are equally applicable this morning in this case.

First, this rule permits parents' claim to authority in their own household to direct the upbringing and development of their children; and secondly, this rule promotes the State's independent interest in helping parents protect the wellbeing of children in those instances when parents cannot be present.

So this morning, California asks this Court to adopt a rule of law that permits States to restrict minors' ability to purchase deviant, violent video games that the legislature has determined can be harmful to the development --

Eric says: I know I'm supposed to be impartial on these sorts of legal analyses -- but jeez, is this ever a problematic argument. This is a great example of how effed-up legal arguments can get: The state is arguing both that it wants to protect the authority of parents to direct the upbringing of their own children, and also to be able to "take over" that authority when parents cannot be present. What defines "cannot" in this case is (intentionally, I'll bet) left a little nebulous. I've never liked this type of thing, even though attorneys have the right to make all arguments available to them.

JUSTICE SCALIA: What's a deviant -- a deviant, violent video games As opposed to what? A normal violent video game?

Eric says: Whoops! Justice Scalia interrupts right off the bat. Actually this is very common: Morazzini got further than most people do into an oral argument at SCOTUS before being interrupted. Making an uninterrupted statement before questions start coming in is virtually unheard of.

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.

MR. MORAZZINI: Agreed, Your Honor. But the level of violence --

JUSTICE SCALIA: Are they okay? Are you going to ban them, too?

MR. MORAZZINI: Not at all, Your Honor.

Eric says: So -- Justice Scalia, as you can see, was ready for this line of argumentation, with this Grimm Brothers example. Poor Mr. Morazzini can't even get a real response in before Ginsburg (note the different spelling from the girlie magazine dude) jumps on the pile.

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?

MR. MORAZZINI: No, Your Honor. That's why I believe California incorporated the three prongs of the Miller standard. So it's not just deviant violence. It's not just patently offensive violence. It's violence that meets all three of the terms set forth in --

Eric says: Mr. Morazzini tries to use a tactic that you learn in law school called "deflection," where you answer a direct question with information that's related to -- but not specifically on point of -- the question you were asked, and hope to either obfuscate with a lot of data or derail the questioning process. But the Chief Justice isn't having it:

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. It --

JUSTICE KAGAN: Well, do you actually have studies that show that video games are more harmful to minors than movies are?

MR. MORAZZINI: Well, in the record, Your Honor, I believe it's the Gentile and Gentile study regarding violent video games as exemplary teachers. The authors there note that video games are not only exemplary teachers of pro-social activities, but also exemplary teachers of aggression, which was the fundamental concern of the California legislature in enacting this statute. So while the science is continually developing, indeed, it appears that studies are being released every month regarding --

Eric says: This is in reference to some nonsense "study" that California dug up, which doesn't really say that video games are particularly violent, but tries to argue that kids are more influenced by video games in terms of their behavioral standards than they are by other media, due to factors like interactivity and repetition of violent tasks. The study does not actually say that kids who play violent video games regularly show more violent behaviors -- at least, not to a statistically significant degree. It just provides conjecture (based on extrapolatory information) on other tangentially related studies of child behavior. Bunk, if you ask me.

JUSTICE KAGAN: Suppose a new study suggested that movies were just as violent. Then, presumably, California could regulate movies just as it could regulate video games?

Eric says: Good question here. This is a form of argumentation technique you learn in the classical rhetoric portion of law school. The idea is to extend the implication of a particular argument the other side is making to the point where it would necessitate an absurd or unfair situation, which the arguer would have to admit was untenable. Let's see what Mr. Morazzini does!

MR. MORAZZINI: Well, Your Honor, there is scientific literature out there regarding the impact of violent media on children. In fact, for decades, the President, Congress, the FTC, parenting groups, have been uniquely concerned with the level of violent media available to minors that they have ready access to.

Eric says: He tries to avoid the question, although it initially sounds like he's going to go ahead and say: "Yes, the state should be able to regulate any form of 'violent' media whatsoever when it involves children." Pretty scary when these government types see some level of control they think they can get their hands on…

JUSTICE SOTOMAYOR: I don't think; is that answering Justice Kagan's question? 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?

MR. MORAZZINI: No --

Eric says: Again, Justice Sotomayor uses the same technique that Justice Kagan did, except to a larger degree. "Outlawing Bugs Bunny" is what we call 'reductio ad absurdum' in the argumentation game. Now you force the arguer, theoretically, to endorse not just a unfair situation -- but one which is patently ludicrous.

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.

MR. MORAZZINI: Justice Sotomayor, cartoons do not depart from the established norms to a level of violence to which children have been historically exposed to. We believe the level of violence in these video games --

JUSTICE SCALIA: That same argument could have been made when movies first came out. They could have said, oh, we've had violence in Grimm's fairy tales, but we've never had it live on the screen. I mean, every time there's a new technology, you can make that argument.

MR. MORAZZINI: Well, Your Honor, I think that's the beauty of incorporating the three prongs of the Miller standard into California's law. This standard is very prophylactic and ensures that only a narrow category of material will be covered, certainly not Grimm's fairy tales.

Eric says: Legal argumentation is one of the few places where you can hear the word "prophylactic" used to not mean "condom."

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?

Eric says: Here, Justice Sotomayor refers to "United States v. Stevens" (56 U.S. ___, 130 S.Ct. 1577), a case from earlier this year in which SCOTUS struck down a U.S. law banning video and other media depictions of animal cruelty (specifically, the case dealt with so-called "crush" videos in which animals are physically crushed as part of a sexual fetish). SCOTUS said that such a law violated the First Amendment protections on freedom of speech, and was too broad because it regulated any content that involved any form of "animal cruelty" and did not specify what that defined. She's basically saying this: In the Stevens case, SCOTUS said it's not for the government to decide what speech has low value and can therefore be regulated, and instead, governments should look to speech categories that have a "historical tradition" of being regulated.

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.

Eric says: Oh boy... this is the kind of thing that really jerks my chain. "Whether or not the Constitution guarantees minors a right" -- first of all, this is a terrible misstatement of where rights come from. According to the Declaration of Independence, certain unalienable rights are "endowed in [us] by [our] Creator." Now, whether or not you believe in God or anything, the point that sentence is trying to make is: Rights inhere in human beings by virtue of our being human. The Constitution doesn't give us or guarantee us any rights, it just prohibits the government from infringing on the rights we already have. If I would've been sitting on the Court at this argument, I would've eviscerated this guy, but Justice Sotomayor seems content to return to the former "what about this other type of media?" set of hypothetical questions.