Amici Curiae: The Violent Video Game, Accidental Huntress, and Arresting David Chen Edition

Schwarzenegger: Violent Video Games Should Be Treated Like Porn

The Supreme Court of the United States (SCOTUS) had an “animated” argument on Tuesday—California was defending a five-year old state law that bans the sale or rental of violent games to those younger than 18. This California Civil Code was enacted based on studies that say violent video games will stimulate “feelings of aggression”, reduce “activity in the frontal lobes of the brain” and promote “violent antisocial or aggressive behaviour”. Last year, the Ninth Circuit struck down the law for violating the First Amendment right to freedom of speech. Also, there was no credible research that showed playing violent video games would harm minors.

During the hearing on Tuesday, the SCOTUS seemed split. Discussions and criticisms of the opposing arguments are provided here, here, here, and here. In summary, the SCOTUS considered specific scenes from video games and lyrics from rap music, and debated topics including violence, minors, and freedom of speech. Three Justices argued that the First Amendment should not be applied to media violence, while the other Justices articulated support for the California state law. Full transcript of the oral arguments in Schwarzenegger v. Entertainment Merchants Association, No. 08-1448 is available here.

Video games are a form of speech. Historically, the SCOTUS has banned only one kind of speech to minors—pornography. In Ginsberg v. New York, the Court said that such a law would “protect the health, safety, welfare, and morals of the community”. However, in United States v. Stevens, the SCOTUS ruled, in an 8-1 decision, that the law prohibiting the sale of animal cruelty pictures or videos was unconstitutional because they were protected by the First Amendment. This case seemed to illustrate that the SCOTUS did not think violent content could override the U.S. Constitution. Furthermore, the California state law would necessarily ask game developers to be “more conservative in the ideas”. “Since government doesn’t regulate movies or music for violent content, game developers bristle at being singled out,” Jess Bravin wrote in the WSJ.

Possibly the Worst Halloween Costumes Ever

Dressing up for Halloween is a yearly tradition for many Canadians. However, in Eastern Ontario, two people, one dressed as a Ku Klux Klan member and the other as his black prisoner, provoked immense outrage. To further exacerbate the situation, the two men were awarded first prize at a Royal Canadian Legion Halloween party. Their offensive costumes can be seen here.

After numerous complaints were received, the police department launched an investigation into the matter but did not press any charges. “At the present time it would appear this was simply a case of poor judgment into the selection of a Halloween costume and there is no evidence to suggest a criminal offence has taken place,” Ontario Provincial Police Constable Chris Dewsbury told CTV News. Mark Andrade, who is black, witnessed the event and said, “I have never felt as alone as I have in my life.”

This case walks a thin line between free speech, racism, and violence.  Section 2(b) of the Charter guarantees everyone freedom of expression, which includes anything that conveys meaning (even offensive or racist meaning) so long as that expression does not cause violence. A threat of violence is still protected under s. 2(b). The question becomes, then, whether this type of expression should be protected despite its not directly causing violence. Does it threaten violence? Should threats of violence even be protected? Should dressing up as a Klansman constitute a hate crime?

U.S. Wife Hunter’s Acquittal Cannot Be Appealed

Four years ago, a Pennsylvania woman, Mary Beth Harshbarger, fatally shot her husband while hunting in Newfoundland. Since then, she has claimed that she thought that the “big black thing” she was aiming at was a bear. Last Friday, the Supreme Court of Newfoundland and Labrador finally put an end to this legal saga. Mr. Justice Richard LeBlanc ruled that Mrs. Harshbarger is irrevocably cleared of the charge of criminal negligence causing death, and her acquittal will not be appealed because an appeal will only be allowed if there was a miscarriage of justice.

The Crown attorney had previously argued that Mary Harshbarger ignored a “huge risk” she created when she fired after the sun went down. On October 1st, Justice LeBlanc ruled that “the Crown failed to prove beyond a reasonable doubt that Ms. Harshbarger recklessly breached the standard of care expected of hunters in such circumstances.”

Mark Harshbarger’s family was devastated by this decision. “It’s a sad day when somebody can shoot another person, kill them, and walk away scot-free with no consequences,” Leonard Harshbarger said in CBC News.

Mikhail Khodorkovsky Case Nearing its Finale

From Lenin’s “April Theses” to Khruschev’s “Secret Speech” to Yeltsin’s defiance of the Gorbachev coup, Russian history is replete with memorable pronouncements which stand for time eternal as microcosms of the political context in which they were uttered.

Another example ought to be added to the Russian history books, following imprisoned former oligarch Mikhail Khodorkovsky’s speech near the end of his trial for embezzlement this week.

Khodorkovsky was once the wealthiest man in Russia, as head of former oil giant Yukos. Following a fall out with then-President Vladimir Putin, he was arrested in 2003 on charges of fraud for which he was convicted in 2005. Last year, he began a new trial on fresh charges for embezzlement and money laundering.

Khodorkovsky’s prosecution is widely understood as having been politically motivated, the result of both his support for opposition parties and his courting of Western capital. As such, his trial may illustrate the shortcomings of democracy in Russia since Vladimir Putin assumed power in 2000.

The speech, which reflects on the reality of widespread corruption and state-centralism in post-communist Russia, can be found here.

Lawlitics – Iowa Votes Out Judges

Voters in Iowa have elected to remove three high court justices through the state’s ‘retention election’ procedure. While the vote marks the first time since the system was introduced in 1962 that a member of the Iowa Supreme Court has been removed, it nonetheless shows the problems inherent with holding members of the judiciary directly accountable to the general electorate. Following the high court’s permission of same-sex marriage last year, Bob Vander Plaats, a Republican Sioux City attorney who lost the party’s nomination for Governor of the state, aided by several million dollars from out-of-state opponents of same-sex marriage, effectively transformed the vote into a referendum on the specific ruling rather than the general merit of the respective judges’ performances.

While undoubtedly American society has always been more skeptical of the thin, grey line between “law” and “policy” – a reality perhaps best evidenced by the spectacle made of nearly every U.S. Supreme Court nominee’s confirmation process in recent memory – this episode is particularly disturbing. Irrespective of our individual views on same-sex marriage, such a voting process as used in Iowa threatens the independence and merit-focused nature of the judiciary, nye, the legal process more generally, upon which the stability of Western democracies depend. As the outgoing judges stated following the vote, “merit selection system[s] … ensure that judges base their decisions on the law and the Constitution and nothing else.”

While the respective Canadian appointment systems may lack the “accountability” associated with a number of the processes used by its American federal and state counterparts (Marshall Rothstein’s confirmation hearing aside?), Canadians should rest easy knowing that ultimately, this has resulted in a less partisan, more respected, and more qualified judiciary.

Canada to Expand the Power of Citizen’s Arrest

Following the recent David Chen saga, the Federal Conservatives have announced plans to expand the power of citizen’s arrest. The initiative is expected to find widespread support in the Commons.

Canada’s laws regarding citizen’s arrest are currently laid out in s. 494 of the Criminal Code. Specifically, the provision allows for an arrest without a warrant if the individual either finds someone committing an indictable offence or reasonably believes that a person is escaping from and being pursued by police officers. Anyone who performs a citizen’s arrest must “forthwith” deliver the arrested to a peace officer.

While we will reserve judgment until substantive points of the new legislation are publicized, and we are aware that such measures may, practically speaking, represent an effective means for shopkeepers and persons in similar situations to combat petty crime on a day-to-day basis, it seems unlikely that such measures will result in anything but more and more complicated work for the courts. After all, what percentage of Canadian citizens today are well-informed of the particulars regarding the current state of citizen’s arrest? Is it realistic to expect that the potential benefits of expanding the power will outweigh the likely negatives of an increased docket to decide when, where, and how the power can be exercised, as well as the increased danger associated with attempting to enforce a citizen’s arrest?