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ESA mourns Scalia

By Brendan Sinclair

ESA mourns Scalia

Tue 16 Feb 2016 3:14pm GMT / 10:14am EST / 7:14am PST
PeopleLegal

Industry trade group remarks on passing of Supreme Court Justice who wrote majority opinion in 2011 game legislation case

Supreme Court Justice Antonin Scalia died over the US holiday weekend, and while many looked ahead to the impact his passing might have on the 2016 presidential election, the Entertainment Software Association released a statement focusing on the impact Scalia had on gaming.

"The Entertainment Software Association joins those who salute the service and mourn the loss of Justice Scalia," the group's statement read. "In 2011, when our industry defended the rights of creators and consumers of video games before the US Supreme Court, it was Justice Scalia who authored the historic majority opinion. He declared, with no ambiguity, that video games, like books, movies and other forms of expression, are deserving of First Amendment protections. It was a momentous day for our industry and those who love the entertainment we create and we are indebted to Justice Scalia for so eloquently defending the rights of creators and consumer everywhere."

Painting Scalia as a champion of games as an art form might be a bit much. In the case of Brown v. Entertainment Merchants Association (originally Schwarzenegger v. Entertainment Merchants Association), Scalia's majority opinion focused not on the virtues of games but on the government's strictly limited ability to curtail undesirable forms of speech.

"The most basic principle--that government lacks the power to restrict expression because of its message, ideas, subject matter, or content--is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words," Scalia wrote. "But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test... Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat, but these cultural and intellectual differences are not constitutional ones."

That ruling was consistent with his previous decisions. In 1989, Scalia sided with four other Justices in determining that desecrating the American flag is also a constitutionally protected form of free speech.

An appointee of President Ronald Reagan, Scalia sat on the Supreme Court for three decades. Over that time, he cemented a reputation as a conservative judge and a strict constitutionalist, pushing back against the idea that the Constitution is a living document with principles that should adapt to suit the changing culture. His sometimes vehement stances against gun control, gay rights, and abortion rights--to name a few--made him a frequent target of criticism from political opponents.

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28 Comments

Morville O'Driscoll Blogger & Critic

1,998 2,316 1.2
Popular Comment
Videogames everyone! Yeyyyyy! Who cares about the guy's views on abortion, gun control and equality - he authored a historic opinion on gaaaaames!

In all seriousness, I feel this is a rather tone-deaf statement, and a very political one. It's all rather unnecessary, too? Like, trying to make sure the ESA is still relevant? *shrugs*

Posted:4 months ago

#1

Kirill Steshin Studying Computer Science & Games Technology, CUNY Queens

5 7 1.4
@Morville
I don't think that matters for Video-Game Industry, since all topics mentioned by you are of the concern for.
Plus, how cares if he held opinions like that: First, he is in better place now; Second, as developers, we should NOT be bringing politics(of any kind) in the process of creating entertainment - that's why Gamers playing Video-Games, to escape reality, not to be constantly reminded of it.
As for ESA statement: Scalia indeed done good for Gaming Industry, and should be acknowledge as such.

Edited 4 times. Last edit by Kirill Steshin on 18th February 2016 7:18pm

Posted:4 months ago

#2

Jason Sartor Copy editor/Videographer, Florida Today

108 42 0.4
@Morville:

*SNIP*
He upheld the Second Amendment the same way he upheld the First Amendment, that the Government may not take away fundamental rights of the people.

Hence the constituionalist part. He voted to uphold things he hated (Note the flag burning case in 1989) that's the way ii is when you actually apply the rule of law, and not just rule based on personal feelings.

*SNIP*

Moderator Comment: This is a forum for games industry professionals and as such, posters are expected to adhere to the rules and refrain from personal attacks. The rules can be found here: http://www.gamesindustry.biz/articles/2014-10-20-our-house-rules

Edited 1 times. Last edit by a moderator on 16th February 2016 9:05pm

Posted:4 months ago

#3

Marianne Monaghan Senior Producer, Hangar 13 Games

6 41 6.8
I'm a leftie who didn't agree with Scalia on much, but his clear message that video games are protected speech was important to all of us in this industry (and everyone else, really). So it seems appropriate for the ESA to call it out and for this site to cover it.

Posted:4 months ago

#4

Morville O'Driscoll Blogger & Critic

1,998 2,316 1.2
*reads comments*

*shrugs*

That's fair. :) Like I say, just seems a bit... Odd? Anyways... :)

Posted:4 months ago

#5

Alfonso Sexto Lead Tester, Ubisoft Germany

1,134 1,255 1.1
I'm European, and now that I read the comments a have a strange feeling of "I want to learn more about this guy, but not sure if I dare"

Posted:4 months ago

#6

John Owens CEO, Wee Man Studios Ltd

1,008 1,328 1.3
Scalia was a defender of the constitution. He took the position that it's not through the courts that law should be changed but rather through the legislature. As this article correctly said his personal views on the issues weren't what was important but rather that he was a defender of democracy and we need more like him especially in today's world.

It's sad that there are many people who don't feel that way and will resort to any and all means possible to get their way.

Posted:4 months ago

#7

Chris Payne Associate Lead Programmer, Traveller's Tales

172 594 3.5
Popular Comment
Unfortunately he was also a defender of creationism, which doesn't speak well to his ability to fairly evaluate evidence.

@Kirill:
Second, as developers, we should be bringing politics(of any kind) in the process of creating entertainment - that's why Gamers playing Video-Games, to escape reality, not to be constantly reminded of it.
I think, from the context, you meant to say "shouldn't". Try replacing video games with books or movies in your statement, and see if you still agree with it.

Posted:4 months ago

#8

Morville O'Driscoll Blogger & Critic

1,998 2,316 1.2
To better define my thoughts on this...

I personally think it's slightly awkward for an association to be lauding a judge, considering the things the judge practiced (not personal feelings, but actually adjudicated on) are so contentious. Considering the number of members the ESA has, I would've thought there's a good portion of staff who don't feel Scalia is worth particular mourning (anymore than anyone else who has died).

Further, I wonder the public reaction if, say, the NRA had issued a statement of mourning. And by that, I mean "public" as in normal everyday Joe Bloggs, not people within the industry.

But I'm not going to go crazy and say people are wrong... It's just, as I said/intimated before, a bit odd. :)

Posted:4 months ago

#9

Aleksi Ranta Product Manager - Hardware

373 270 0.7
It is strange indeed. At least the wording...mourn. It brings an image into my head of people crying over a coffin and like the world will never be the same again. Of course that is not the case. The guy wrote a piece on behalf of the majority decision, which was not groundbreaking by any measure, just common sense all the way.

If you make public statements like this it makes one wonder where you draw the line with regards to "public" and "mourning". Is the death of any developer, any employer of a publisher or anyone in games industry, not a cause for ESA to mourn? But only when when it makes good press?

Edited 1 times. Last edit by Aleksi Ranta on 17th February 2016 6:06pm

Posted:4 months ago

#10

Richard Browne Partner & Head of Interactive, Many Rivers Productions

201 285 1.4
Popular Comment
Defender of the Constitution? He couldn't even read it. Government may not take away fundamental rights . . tell that to any woman who wants to have the fundamental right as to what to do with her body.

Best thing that can be said about Scalia in relation to this is that even a broken clock is right twice a day.

Posted:4 months ago

#11

Bonnie Patterson Narrative Designer, Writer

285 891 3.1
Popular Comment
Thing is, when an Association issues a statement, it is representing its members, some of whom were classed by Scalia as genetically too stupid to go to the University of Texas and/or face a more than quadrupled risk of dying in childbirth because of his vote. So it seems presumptive, to say the least.

Secondly, the man was a judge. Had the ESA issued a statement of adulation to Scalia while the man was still alive, it would have been grotesquely inappropriate and could be taken as a form of reward for making the desired decision. The "salute the service" part seems OK, it's the "and mourn the loss" part that makes it feel like the ESA sees the passing of an ally - something that Scalia, as an ostensibly impartial figure, should not have been seen as by anyone.

Posted:4 months ago

#12

John Owens CEO, Wee Man Studios Ltd

1,008 1,328 1.3
@ Morville

The reason they are lauding him is because we would all be making the equivalent of Disney cartoons without him and the idea of games as an art form would be a joke.

But maybe you don't worry about these things because you always think society and the elites will agree with you.

Also what Chris and Bonnie wrote was nonsense but I'll leave it to anyone interested to Google the opposing arguments if they want.

Edited 3 times. Last edit by John Owens on 18th February 2016 11:06am

Posted:4 months ago

#13

Morville O'Driscoll Blogger & Critic

1,998 2,316 1.2
@ John

As Bonnie says "salute the service" and "mourn the loss" are two very different things. And to quote myself, since you seem to have gotten a little confused?
I would've thought there's a good portion of staff who don't feel Scalia is worth particular mourning
I can laud someone for doing what they believed in, and at the same time feel no need to mourn their death. Thatcher would be a good example of this, I think?

Edited 1 times. Last edit by Morville O'Driscoll on 18th February 2016 11:11am

Posted:4 months ago

#14

John Owens CEO, Wee Man Studios Ltd

1,008 1,328 1.3
@ Morville

The reason why they say they mourn his passing was because taken in isolation what his ruling meant for our industry and nothing else. They weren't passing judgment on his whole career. I think you are confusing the two.

Posted:4 months ago

#15

Morville O'Driscoll Blogger & Critic

1,998 2,316 1.2
They weren't passing judgment on his whole career. I think you are confusing the two.
"The Entertainment Software Association joins those who salute the service and mourn the loss of Justice Scalia,"
I personally think they are confusing the two. As I said,
considering the things the judge practiced (not personal feelings, but actually adjudicated on) are so contentious
Certainly it can be read as them merely mourning him for what he said about games and nothing else, yes. But then it comes back to my first comment - it reads as tone-deaf (ignoring his other judgements) and political. *shrugs* If nothing else, they should've had a better writer for the statement, considering the interpretations we have all read into it. :)

Edited 1 times. Last edit by Morville O'Driscoll on 18th February 2016 11:40am

Posted:4 months ago

#16

John Owens CEO, Wee Man Studios Ltd

1,008 1,328 1.3
Except that wasn't the entire quote. It was followed with

"In 2011, when our industry defended the rights of creators and consumers of video games before the US Supreme Court, it was Justice Scalia who authored the historic majority opinion. He declared, with no ambiguity, that video games, like books, movies and other forms of expression, are deserving of First Amendment protections. It was a momentous day for our industry and those who love the entertainment we create and we are indebted to Justice Scalia for so eloquently defending the rights of creators and consumer everywhere."

Which should have made it clear they were referring to this and not his entire career. The only person who is bringing their own political view on matters outside our industry is yourself and a couple of others illustrated clearly here in these comments.

Edited 1 times. Last edit by John Owens on 18th February 2016 11:49am

Posted:4 months ago

#17

Morville O'Driscoll Blogger & Critic

1,998 2,316 1.2
The only person who is bringing their own political view on matters outside our industry is yourself and a couple of others illustrated clearly here in these comments.
*shrugs*

Read what the Republicans are doing right now with SCOTUS nominations. SCOTUS is inherently political. By implication, any talk about SCOTUS can be viewed as a political view or message. Certainly it can be talked about in non-political terms, but the phrasing has to be... precise, I think? And this wasn't precise.

But, anyways, this is now very off-topic *shrugs*

Edit: Off-topic to the article, but on-topic about Scalia, the first episode of the new season of Last Week Tonight With John Oliver has some great bits about Scalia. Highly recommend it. :)

Edited 1 times. Last edit by Morville O'Driscoll on 18th February 2016 11:57am

Posted:4 months ago

#18

John Owens CEO, Wee Man Studios Ltd

1,008 1,328 1.3
We will have to see who Obama nominates before determining who is being political or not. :-)

Maybe it was political. Maybe the ESA were alluding to the fact that sometimes you need someone to stand up for the democratic and the constitutional will because otherwise you are at the mercy of the elites and our industry is a great example of that.

Personally I think that's giving them way too much credit.

Posted:4 months ago

#19
@John: "(without Scalia) we would all be making the equivalent of Disney cartoons and the idea of games as an art form would be a joke."

I wonder how you reached such an unhinged view of Scalia given that, unlike us slobs, your judgement is so mercifully unclouded by your political leanings.

And for what it's worth, games-as-art is broadly a joke and our industry pretty much does make Disney cartoons. I personally love low art & cartoons so have no issue with this.

Posted:4 months ago

#20

John Owens CEO, Wee Man Studios Ltd

1,008 1,328 1.3
My views aren't unclouded by my political leanings. They are the result of my political leanings which also should be universal. i.e. That the constitution needs to be adhered to and that it's not up to judges to create new law through precedent that contradicts the constitution but rather law should be changed through the legislature that is elected by the people.

That shouldn't be a right or a left viewpoint. That should be the view we all should have. Certainly one that labels itself as the "democratic" party. :-)

As for what our industry produces. Most of what any creative medium produces is commercial pop art however not all and we should have the same freedom as any other - Apple's banning of the Binding of Isacc is just a recent example. Again it's not an argument based on merit but rather principle which is if you read what Scalia wrote he makes clear. As Jason said it was his ability to defend what he hated which was the true test of the man. Unfortunately a test the progressives consistently fail.

Edited 1 times. Last edit by John Owens on 18th February 2016 1:04pm

Posted:4 months ago

#21
Popular Comment
About 5% of people are truly left or right, progressive or conservative, mostly those in political parties or groups. The vast majority of us are all over the shop politically, as it should be. Declaring yourself (or someone else) to be in any 'camp' is amazingly limiting and you open yourself to any ridicule that can be thrown at that 'camp'. 'Progressives' don't fail at consistency any more or less than conservatives do. Chomsky wrote the introduction to the book of a French Holocaust denier who was looking at jail time, essentially arguing I disagree with this book but will defend it to the death yadda yadda. Hitchens remained a friend to David Irving until his death. Do I need to speak of all the social conservatives who turn out, privately, to be highly involved with 'homosexual culture'? Even with GG plenty of ppl on both sides had sympathy for their opposites. You'd just never guess it from the screeching of the internet's loudest, those who wrapped their identity into what should always have remained a high level discussion about best practice and basic manners. That would have been the 'principled' discussion as I think you'd term it. The world is far bigger & thought far broader than Twitter and comment sections would have us believe. As such, bringing up the fact that you belong in one camp or your opposite another contributes absolutely nothing, bar confusion, to a discussion.

Posted:4 months ago

#22

Morville O'Driscoll Blogger & Critic

1,998 2,316 1.2
We will have to see who Obama nominates before determining who is being political or not. :-)
Hahahahahah... Oh man alive! Seriously, watch that John Oliver episode. :D

Posted:4 months ago

#23

John Owens CEO, Wee Man Studios Ltd

1,008 1,328 1.3
"Declaring yourself (or someone else) to be in any 'camp' is amazingly"

Good thing I never did that then.

Neither Hitchens were progressives by the way. Christopher Hitchens ended up practically becoming a neo-con and Peter was always a Conservative.

As for whether modern progressive do it more or not. Well that's my opinion and you are free to have yours. See how easy it is and not a safe space in sight.

Posted:4 months ago

#24

Kirill Steshin Studying Computer Science & Games Technology, CUNY Queens

5 7 1.4
@Chris Payne,
> In course of Games it doesn't really matter.
> Yes, we should NOT, whether it Games, Books, etc - it is entertainment. Why would be bring politics and ideology in, for example, light romantic novel, or a teen's novel, as the main point, unless it's more serious material - which, by definition, isn't neither "light" nor for teens. Same with games.
Thanks for pointing out misspelling.

Edited 1 times. Last edit by Kirill Steshin on 18th February 2016 7:25pm

Posted:4 months ago

#25

Anthony Gowland Consulting F2P Game Designer, Ant Workshop

315 1,369 4.3
Why would you bring politics in to a teen novel? Unless you wanted to make something as popular as the Hunger Games, for example.

Posted:4 months ago

#26

Klaus Preisinger Freelance Writing

1,447 1,808 1.2
Freedom of speech is worthless when you take the liberty to shut up.

Look at all the rating boards, it is nothing less than the Comic Code Authority Year 2000 edition. The ESA does not fight age restriction stickers, they promote more of them. Meanwhile, books and comics thrive on not giving a $#!7 about whether content is age appropriate. That is only something screenwriters and producers worry about when adapting material into movies and video games.

Posted:4 months ago

#27

Kirill Steshin Studying Computer Science & Games Technology, CUNY Queens

5 7 1.4
@Anthony,
Hunger Games has "politics"? On serious note? Don't lie here...
Plus, the book his very shallow on ideas, and politics is the weakest part of it.

Posted:4 months ago

#28

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