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Brown v. EMA: From the Beginning

Continuing Comic Booked’s coverage of the Supreme Court’s historic ruling in Brown v. EMA, I thought it appropriate to take a look back on the case and its seven year journey to the Supreme Court.

As you may already know, at issue in Brown v. EMA was a California law that would have penalized retailers for selling violent games to minors. This represented a second legislative attack on the industry by California State Senator Leland Yee, who many in the gaming community have compared to former attorney Jack Thompson, given his persistence in pursuing such regulation. The bill in question was basically a toned down version of similar one that Yee drafted in 2004. The law, a pair of bills dubbed AB 1792 and AB 1793, passed and was signed by then-Governor Schwarzeneggar in October of 2005.

First and foremost, this law would have banned the sale of violent video games to the sale of anyone under eighteen, despite the fact that the ESRB’s M rating designates a game as appropriate for ages seventeen and up. In addition to this, it required clear labeling beyond the ESRB system (which, given the nature and placement of ESRB ratings and content descriptors, would have been redundant to say the least) and imposed a fine of up to $1000 for violations. Yee attempted to justify all of this by defining violent video games with a variation of the Miller obscenity test, although, as noted in the Court’s opinion, the legal definition of obscenity (and thus, the Miller test) applies strictly to sexual material, rather than violence.

As was the case with the numerous similar laws that were introduced across the country in the past decade, the California law was almost immediately challenged by the industry, with the EMA (known, at the time, as the VDSA) filing suit less some ten days after Schwarzeneggar signed it into law. Although it was set to go into effect in January 2006, a preliminary injunction blocking enforcement was granted by Judge Ronald Whyte of the United States District Court for the Northern District of California.  The case remained in court until August 2007, when Whyte ruled in favor of the industry, holding that not only did the law violate the First Amendment, but also that there was not sufficient proof that video games either differed sufficiently from other media or had a causal link to violent behavior.

Now, since you clicked on an article about a Supreme Court case, you already know that California appealed this ruling, setting them apart from other states (which simply accepted that their anti-video game laws were unconstitutional following the initial ruling), with Schwarzeneggar vowing to “vigorously defend this law,” (a stance that many in the gaming community viewed as hypocritical, given that he came to fame as the star of countless ultra-violent action movies). This appeal took the case to the United States Court of Appeals for the Ninth Circuit. Unsurprisingly, the Ninth Circuit upheld the District Court’s ruling, further holding that the California law was subject to strict scrutiny (the most stringent standard of judicial review concerning federal law, under which a law must be “justified by a compelling government interest and [be] narrowly drawn to serve that interest”), thus dismissing a key argument in California’s defense. That argument was California’s insistence that it should be held to a variable obscenity standard established in Ginsberg v. New York (a 1968 obscenity case dealing with sexually explicit material, in which the Supreme Court ruled that material not necessarily considered obscene could still be harmful to minors). In rejecting this argument, the Ninth Circuit also noted that the Supreme Court had been careful to place significant limits on the variable obscenity standard, so that it applied only to sexual material. True to his word, Schwazeneggar subsequently appealed this ruling as well, petitioning for certiorari in May 2009.

As you may recall, it was a rather big deal when the Supreme Court granted decided to hear the case, and not just because of the implications of the ruling. Indeed, to many it was shocking that the Court even bothered with the case given the dozen or so unanimous rulings that had been handed down in lower courts across the country that the California law and others like it were in violation of the First Amendment. Whether it’s true or not, I like to think of this as the Court’s attempt at settling the issue, or at the very least setting a definitive legal precedent in the matter. In any event, the game industry and several affiliated groups followed this announcement with a seldom seen display of cohesion, as petitions and amicus briefs flowed from groups as diverse as the ECA (Entertainment Consumers Association), the Electronic Freedom Foundation, Microsoft, the ACLU, the Comic Book Legal Defense Fund, even the MPAA and the Future of Music Coalition.

Reading the arguments at the time, I remember enjoying myself as  Zackery Morazzini (the attorney representing California) was grilled by none other than Justice Scalia. While Morazzini offered many of the same tired arguments against media violence (which I’m sure we’ve all heard a thousand times before), Scalia seemed to poke holes in his arguments at every turn, though he was hardly the only Justice to do so, with Ginsburg at one point directly asking what made video games so special, a point the Chief Justice reiterated as Morazzini feebly attempted to dodge the question. Morazzini’s argument tended to follow this pattern throughout, with him raising feeble arguments and the Justices asking pointed (and at times obvious) questions. Indeed, Scalia even raised a number of points that he would later revisit in his opinion (including comparisons with the famously gruesome Grimm’s Fairy Tales). That’s not to say things were one-sided. Indeed, the Justices (particularly Justice Breyer, who ultimately dissented) also turned a critical eye toward the arguments of the EMA, as presented by Paul Smith. However, Smith’s argument seemed better constructed, and Smith himself better prepared for the Justice’s questioning that his counterpart. Indeed, the phrase “I don’t know,” seemed to be something of a mantra for Mr. Morazzini, whereas Mr. Smith responded far more readily and presented his case in, I feel, a far more persuasive manner.

And of course, we now know how that ended. If you missed it, you can see my coverage of Justice Scalia’s opinion here. I would also highly recommend reading the oral arguments. While I did my best to sum them up, it is, to say the least, difficult to do them justice in the space and time available. If you’re interested, you can find a transcript here.

Be sure to stay tuned to Comic Booked!

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