Earlier this month, on election day, the Supreme Court heard opening oral arguments in the EMA vs. Schwarzenegger case. The EMA is the Electronic Merchants Association, and the case the governor of California is bringing to the Supreme Court in Washington DC, is a law that would ban "deviant violent video games" to minors. The law itself has been declared potentially unconstitutional by all of the lesser courts in California, and in similar bills in other states, which is why it's being heard on a national scale.

You can actually read and download the transcript of the hearing at   Joystiq.com

Firstly, I've not been a minor for some time now, so right off the bat I thought that this really doesn't affect me. And secondly, I'm a resident of the state of New York so I wouldn't be immediately effected at all if the Californian bill was to pass.

Then after a bit of thought, and some commentary on the subject, I think this law is as exactly how the lower courts of California called it, at least potentially unconstitutional.

Schwarzenegger and company's primary complaint, is that there is no way for parents to tell how violent a video game is in the store. Except there is, the   ESRB, and they have a comprehensive list of ratings and what they mean. Coupled with the fact that on the back of every boxed copy of any video game sold in stores has an explanation of why it has such rating.

Think of the ESRB as the MPAA of video games. The MPAA is an association of people who rate the movies the come out, mostly theatrical releases. They have a comprehensive list of ratings as well, and by now most people know the difference between a family friendly rated "G" movie, and a rated "R" horror flick. And to add something, if "a minor were to walk up and buy a ticket to an "R" rated movie, proceed to enter the theater watch said movie and walk out, there is nothing anyone can do about this. The kid's mom might get upset and have a word with the theater's manager, but he is not going to get fined, there is no one above him who can enforce the ratings. So he let's the woman know how sorry he is that her son saw such potentially violent possibly sexual images, and he may even offer her a pair of free tickets, but there is nothing she can do. It's up to the theater's themselves to provide a barrier of protection. The same thing goes for the ESRB, except the stores in question have a more strict policy. That same minor will not be able to buy that copy of   Jaws Unleashed  for his   Playstation 2, though he could go see Jaws if he wanted more easily. Even I have been asked for my I.D. at my local Best Buy for games, and I've walked into bars and had drinks without being carded.

The second place the law maker's bill falls apart in is the actual wording. As pointed out by Justice Scalia

Justice Scalia: "What's a... a deviant violent video game?"

Zackery P Morazzini (there on behalf of petitioners): "Yes, Your Honor, Deviant would be departing from established norms"

Justice Scalia: "There are established norms of violence?"

The Justice goes on to point out the violence in the Brothers Grimm fairy tales, which the Californian officials had no intention of banning them, though the stories are just as violent as some of the games they are trying to get banned.

And more to the point, what is "deviant" violence? Is my definition the same as yours? How different is that from my grandmother? Or from a soldier who has seen battle in a war? The answer of course is that everyone has different answers to the same question. Everyone has different levels of everything. Nations of the world have different answers. In Japan for example, you cannot show decapitation in movies and games. Making the Japanese version of the game   Ninja Gaiden 2  very different from the one I played in the US.

What caught my attention is Justice Scalia's almost sardonic proposition for a Californian Board of Censorship, to declare things obscene or not, and possibly hand out fines to those who act against them. Like the FCC can for radio and television. The bad thing is how broad a name like "The State Board of Censorship" can be. It starts by handing out its rules for video games, Ed Boon and the new M ortal Kombat  is effected first, they can't do what it is that makes that game that game,  because they aren't going to make a different version for one state, so they change it. Then other game developers start changing their ideas and games because they suddenly can't do what they once could or are unsure of what is what and make a more safe game as to not get banned. Then after a number of years someone writes a book, maybe it's of the horror genre, maybe it's a grim retelling of a serial killer's biography. The same board who declared, because of the Mortal Kombat game, which had an over the top violent factor. The killer in the book does the same act so the board declares the book the same as the game. Or perhaps a movie becomes so known for its violence, like   Hostel, and they become banned.

I know what you might argue. First amendment and free speech. Yes, I agree with that. The thing is however, television. You know what you never hear on a show on NBC, or FOX on a Thursday? Anyone use the word "Fuck". Why? The FCC can fine them thousands of dollars because someone somewhere might find that term offensive. The FCC as a whole has too much power, and is so inconsistent, it's hard to tell what's what.

And the question I've always had is, what makes the word fuck bad or offensive? I've heard argument, "It's just bad", or that "it's not in the good book". And honestly, I need a better explanation. the former is how a parent handles a small child questioning authority, "it just is". The latter however, is terrible for a number of reasons, i'm sure the word "internet" does not appear anywhere in the Bible, yet that is not offensive.

Do I really think the law will be declared constitutional and be put into practice? No. The attitude toward the bill by the Supreme Court at the hearing makes me think they are thinking about it similar to the way I am. I don't know why California is has such fervor to get this particular piece of legislation passed, I know there have been at least talks about similar bills in New York and Connecticut. The main difference being California is broke, and has far bigger problems than minors buying that latest mature rated video game. I think they think they've gone too far to stop short of the top the is the United States Supreme Court.