This morning I attended the oral argument at the U.S. Supreme Court in the “violent video game” case, Schwarzenegger v. EMA. In September, CDT filed an amicus brief on behalf of itself and leading Internet industry groups and others. The case raises the question of whether states can regulate the distribution of violent video games to minors or, conversely, whether parental controls and other tools available to parents are sufficient to shield kids from content the parents want to block. The case was well argued on behalf of the video game industry by my former Jenner & Block partner, Paul Smith.
On one level, the argument went very well, and although predicting court outcomes is a dubious venture, there is a good chance that the California statute at issue in the case will be overturned as unconstitutional under our First Amendment. Many (but not all) of the Justices expressed serious concern about the vagueness of the statute (which prohibits the distribution of violent video games if they appeal to a “deviant or morbid” interest in violence for minors). The attorney for California simply could not effectively answer Justice Kagan’s question, “How would you describe, in plain English, what ‘morbid violence’ is?” She and other Justices seemed very open to Paul Smith’s arguments that video game makers would have no idea what games would be illegal under the California law.
Read more »