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US Supreme Court Questions Arguments Behind Violent Game Law

Both sides in the case of Schwarzenegger, Gov. of California v. Entertainment Merchants have today given their oral arguments to the Supreme Court, in favour and against the restriction of sale of violent videogames to minors.

This process involved Zackery Morazzini (Deputy State Attorney General for California) putting forward the case for the petitioner and taking questions from the court, followed by Paul Smith giving the case for the Entertainment Merchants.

You will recall that the case hinges on whether the sale of violent videogames to minors should be made illegal. This would be in direct contrast to the way the US film, book and music classification works. All of those other media are industry self-policing in the US. It is not, for example, illegal for a retailer to sell an R rated film to a minor.

The challenge for Mr Morazzini, therefore, was to argue why videogames should be a special case and ought not to be covered by the First Amendment. Judging by the transcripts, he met a great deal of court skepticism.
Justice Scalia summarised this skepticism as follows: “It was always understood that the freedom of speech did not include obscenity. 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?”

As we suspected all the way back in April, the court also found problems with the wording of California’s proposed law, which sought to restrict games that depicted “”killing, maiming, dismembering or sexually assaulting an image of a human being.”

Justice Sotomayor cut to the key problem with this wording in the following exchange:

“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?”

The full 72 page court transcript is available to read here, and is highly recommended for anybody still concerned that this law has any chance of passing in the Supreme Court.

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