The Supreme Court Video Game Case

On November 2nd the Supreme Court of the USA will begin hearing Schwarzenegger v. Entertainment Merchants Association. This is the case regarding California’s law regulating the sale of “violent” videogames to minors. There’s a lot of talk going on online about this case and whether or not such a law is needed or is constitutional. I don’t think it is needed nor do I think it is constitutional. In reading several stories and comments about the case I’ve also seen a lot of incorrect and misguided statements and so I thought it might be a good idea to write up a post clarifying the case and explaining why it is important.
First off, what does the law actually say? The full text of the law can be found in a pdf. The summary of the law states:

Existing law regulates the sale of certain merchandise, such as political items and sports memorabilia.
This bill would require violent video games to be labeled as specified and would prohibit the sale or rental of those violent video games, as defined, to minors. The bill would provide that a person who violates the act shall be liable in an amount of up to $1,000 for each violation.

The law goes on to state:

(d)  (1)  “Violent video game” means a video game in which of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:
(A)  Comes within all of the following
(i)  A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
(ii)  It is patently offensive to prevailing standards in the community as to what is suitable for minors.
(iii)  It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.
(B)  Enables the player to virtually inflict serious injury upon images human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.
(2)  For purposes of this subdivision, the following definitions apply:
(A)  “Cruel” means that the player intends to virtually inflict a high degree of pain by torture or serious physical abuse of the victim in addition to killing the victim.
(B)  “Depraved” means that the player relishes the virtual killing shows indifference to the suffering of the victim, as evidenced by torture or serious physical abuse of the victim.
(C)  “Heinous” means shockingly atrocious. For the killing depicted a video game to be heinous, it must involve additional acts of torture or serious physical abuse of the victim as set apart from other killings.
(D)  “Serious physical abuse” means a significant or amount of injury or damage to the victim’s body which involves a substantial risk of death, unconsciousness, extreme physical pain, substantial disfigurement, or substantial impairment of the function of a
bodily member, organ, or mental faculty. Serious physical abuse, unlike torture, does not require that the victim be conscious of the abuse at the time it is inflicted. However, the player must specifically intend the abuse apart from the killing.
(E)  “Torture” includes mental as well as physical abuse of the In either case, the virtual victim must be conscious of the abuse at the time it is inflicted; and the player must specifically intend to virtually inflict severe mental or physical pain or suffering upon the victim, apart from killing the victim.
(3)  Pertinent factors in determining whether a killing depicted in a video game is especially heinous, cruel, or depraved include infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victim’s body, and helplessness of the victim.

So what’s the problem? Do I think that kids should play M for Mature rated games? No. The problem is the First Amendment. …And that’s where a lot of people commenting online make mistakes.

First, every single time I’ve seen a post online about videogame violence laws there has been at least one post amounting to something like, “What’s the big deal? This would make videogames just like movies.” This is probably the biggest misconception. In the USA no medium has its ratings regulated by law. The website filmratings.com, a site ran by the Motion Pictures Association of America (MPAA) who actually give out the ratings, clearly states that film ratings in the USA are voluntary. The site does a good job of covering the history of ratings in the USA so if you aren’t familiar with the Hays Code and the creation of the ratings it is a worthwhile read.  The website also has a frequently asked questions section that contains the following question and answers:

Do all movies have to be rated?
No. Submitting a film for a rating is a voluntary decision made by filmmakers. However, each member of the Motion Picture Association of America has agreed to have all its theatrically released films rated, and the overwhelming majority of filmmakers have their film rated.

Is the rating system a law? If no, who enforces it?
No. The movie rating system is a voluntary system sponsored by the Motion Picture Association of America and the National Association of Theatre Owners (NATO). The members of NATO enforce the system by asking for identification and refusing admission to R-rated movies by unaccompanied children or to NC-17 movies by children whether or not accompanied.  Retailers and rental stores also enforce the ratings for movies released on video. Some parents inquire about whether it is lawful for other parents to bring their very young children to R-rated films. The R rating contains the strict and explicit caution that “generally, it is not appropriate for parents to bring their young children with them to R-rated movies.”

Now, just because film ratings are voluntary in theory doesn’t mean that they aren’t more or less mandatory in practice. This is because, as their own FAQ states, “each member of the Motion Picture Association of America has agreed to have all its theatrically released films rated.” This means all the movie studios rate their films for theatrical release and if a film isn’t rated (or even if it is rated NC-17) then theaters basically won’t show it. However, just because a film basically has to be rated to be shown in theaters doesn’t mean that they don’t sell unrated films on dvd because the practice of releasing “unrated editions” of movies is very common.

Similarly the “Parental Advisory Explicit Content” stickers on some music was created by the RIAA and is also voluntary.

USA Broadcast television’s ratings were suggested by the government but according to the government:

In Section 551 of the Telecommunications Act of 1996 Congress gave the broadcasting industry the first opportunity to establish voluntary ratings. The industry established a system for rating programming that contains sexual, violent or other material parents may deem inappropriate and committed to voluntarily broadcast signals containing these ratings.

Broadcast television and radio stations can and have been fined for inappropriate content but that is only broadcast and not cable or satellite. The government can regulate broadcast content because they use the airwaves which theoretically belong to the public. The only reasons cable channels censor programming is because they want to and because they don’t want advertisers to pull ads (and ad money) from their shows and cable and satellite companies to stop carrying their programming (or make it so that customers would have to specially subscribe to the channel or something which would cost the channel viewers).

Some people have claimed that because this law only applies to minors that it isn’t a First Amendment issue and we shouldn’t worry about it.  Now I’m no law talking guy and I’m guessing that most of the people writing these comments aren’t either so it doesn’t really matter if we think it is a First Amendment matter or not. What matters is what the judges think and judges both in deciding this particular law and over the years in deciding several other laws in several places including Illinois (pdfs of verdict in various appeals),   Louisiana, Oklahoma, Indianapolis, and St. Louis have all been ruled unconstitutional.

The 9th Circuit Court of Appeals verdict on the California case begins:

We hold that the Act, as a presumptively invalid content-based restriction on speech, is subject to strict scrutiny and not the “variable obscenity” standard from Ginsberg v. New York. Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information;  but compels the carrying of the State’s controversial opinion.

From the verdict declaring the Oklahoma law unconstitutional:

Having viewed the portions of three games submitted by Defendants, the Court is inclined to agree. Whether the games are “suitable,” however, is not the applicable standard for the propriety of the government placing a content-based restriction on dissemination of protected speech, even dissemination to minors.

Because the Act applies only to video games and software containing “inappropriate violence,” its provisions constitute a content-based regulation on protected expression. See IDSA, 329 F.3d at 958; Blagojevich, 404 F. Supp. 2d at 1071. Hence, the attempted regulation is presumptively invalid and subject to the strictest scrutiny under the First Amendment. R.A.V. v. City of St. Paul. Under this  analysis, the Act will be upheld only if Defendants can show that the regulation is necessary to serve a compelling state interest. Strict scrutiny also requires that the Act be narrowly tailored to achieve that interest. Id. The fact that Defendants are attempting to regulate the flow of information to minors, rather than to adults, does not render the values protected by the First Amendment any less applicable. Erznoznik v. City of Jacksonville. To the best of the Court’s knowledge, the Supreme Court has not “suggest[ed] that the government’s role in helping parents to be the guardians of their children’s well-being is an unbridled license to governments to regulate what minors read and view.” IDSA, 329 F.3d at 959-60; see also Blagojevich, 404 F. Supp. 2d at 1076.

[….]Defendants submit that the standard of Ginsberg v. New York, 390 U.S. 629 (1968), should apply and allow the government to regulate objectionable depictions in the interest of helping parents with “protecting minors.” (See Defs.’ Resp. at 6, 10.) The Supreme Court in Ginsberg permitted enhanced regulation of distribution of sexually explicit material that is obscene as to minors but not obscene as to adults. Ginsberg, 390 U.S. at 636-40. The Ginsberg decision, however, concerned only sexually explicit or “obscene” material, which is unprotected by the First Amendment, rather than the protected expression at issue in this case. See Miller v. California, 413 U.S. 15, 23 (1973). The Supreme Court has held that, when used in the context of the First Amendment, the word “obscenity” refers only to works that deal with sex. Maleng, 325 F. Supp. 2d at 1185 (citing Miller, 413 U.S. at 24 (“[W]e now confine the permissible scope of [regulation of obscene material] to works which depict or describe sexual conduct.”)). It is immaterial that the subject matter of the video games could be characterized as “disgusting or degrading.” (Defs.’ Resp. at 8). No court has expanded the definition of obscenity to include portrayals of violence, “inappropriate” or otherwise; each is a “distinct categor[y] of objectionable depiction.” Kendrick, 244 F.3d at 574; Maleng, 325 F. Supp. 2d at 1185. In contrast to Ginsberg, the Act in the instant case is attempting to regulate protected expression. Therefore, Defendants may not rely on Ginsberg as authorizing the enhanced restrictions of the Act on dissemination to minors.

Both of these cases as well as some of the others listed above focus around interpretations of obscenity and a case known as Ginsberg v. New York.   This brings up another common comment from people who do not see a problem with laws regulating the sales of videogames to minors. People will often write or say, “We don’t let kids buy alcohol, tobacco, guns, or pornography, so what’s wrong with not letting kids buy violent videogames?” The problem with this is, again, rooted in the First Amendment.

Alcohol and tobacco are drugs (or in the case of tobacco, a plant that contains a drug) and are not free speech. They are drugs that have clearly demonstrable negative effects on health. Even at that the tobacco companies fought strenuously against regulations of tobacco sales and advertising.

Guns are a Second Amendment issue and not a First Amendment issue. As little as I know about the First Amendment I know even less about the Second, so I won’t really discuss it here.

That leaves us with pornography. This is the category that violent videogames are most often compared to and with the advent of the phrase “torture porn” and similar phrases, the comparison is more muddled. Before getting to the First Amendment issues, let me point out that pornography is a genre and not a medium. Videogames are a medium. Pornographic videogames would already be subject to the same laws that regulate other forms of pornography. OK, on to the First Amendment…

As I said earlier, I’m no lawyer so all this comes from stuff I’ve read and searched for online. When you try to search for laws regulating children’s access to pornography you mainly come across articles about the legality of child porn which is not really the issue here (and of course searching for ‘children pornography -“child pornography”‘ can also get rid of articles that are relevant but also mention that phrase).

In searching, however, I’ve found that there’s not really any legal definition of “pornography.” Instead, what the federal government does define is “obscenity.” The problem with defining pornography and deciding what is and is not “pornographic” is that different people have different definitions. Are images of naked adults pornographic? What if they are in anatomy books or in art museums? What about depictions of intercourse? What if they are in sex education classes? In some societies a woman’s exposed ankle is pornographic. The Victorians were said to cover up tables so table legs wouldn’t be exposed.

Obscenity isn’t much easier to define but there is at least the Miller Test. Developed as a result of 1973’s Miller vs. California the test has three parts:

• Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
• Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
• Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

With phrases like “the average person,” “community standards,” and “patently offensive,” you can see that the Miller Test is not clear cut. There were numerous cases before 1973 over obscenity and there have been numerous cases since. You will also notice that the California law is modeled after this test as have been many of the other laws that have been ruled unconstitutional.

The case which established that something not obscene for adults may be found harmful for children and regulated is the previously mentioned 1968 case Ginsberg vs. New York. In the article, “On Protecting Children from Speech.” (Chicago-Kent Law Review, Vol. 79, No. 3 (2004), pp. 3-53), Amitai Etzioni does a good job of covering the history of regulating children’s access to pornography. He writes that Ginsberb vs. New York established, “that children should not be allowed the same access to certain types of materials as adults, and that the state is entitled to pass laws aiding parents in carrying out their duties” (6). Etzioni goes on to explain that subsequent cases such as 1978’s FCC v. Pacifica Foundation (which was about broadcasting George Carlin’s “Seven Dirty Words”) have reaffirmed this position.

Despite these clear rulings, as with defining obscenity, the problem still remains in determining what is and isn’t “unacceptable” and “harmful to minors.” Etzioni tells us that several laws designed to protect minors from “harmful material” have been found unconstitutional including federal laws such as the Communications Decency Act of 1996 (“CDA”) and the Child Online Protection Act of 1998 (“COPA”).

The Supreme Court ruled that the CDA’s prohibitions on “indecent transmission” and “patently offensive display” violated freedom of speech as protected by the First Amendment. Though it affirmed the compelling interest of the government in “protecting minors from potentially harmful materials” on the Internet, the Court found that “the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of `narrow tailoring’ that will save an otherwise patently invalid unconstitutional provision.” The Court ruled that the scope of the legislation was too broad, attempting to shield those under the age of eighteen from certain content at too great an expense to adults’ access to protected speech. (Etzioni 7-8).

Similarly COPA was found unconstitutional when the court found that “COPA [was] neither narrowly tailored nor the least restrictive means available to achieve the government’s goal of protecting children from harmful online materials, and also that it impermissibly encroache[d] on speech that is constitutionally protected for adults” (Etzioni 8). Etzioni goes on to examine five other cases where laws attempting to protect children from pornography were found to be too broad and ruled unconstitutional. (It should be noted that Etzioni’s ultimate point is that there is more evidence for regulating violence than there is pornography — something I strongly disagree with. Despite this I still find his article worth reading.)

Thus, while we tend to believe that laws protecting children from pornography are well established, the truth is that they are not. Moreover, the same argument that these laws are unconstitutional because they are two broad and would have a chilling effect on free speech is also the same argument that judges have used to rule laws regulating videogame sales unconstitutional.  It seems that if pornography laws which have a long history of legislation and court rulings are still highly contentious then videogame laws which have a much shorter legislative history would be at least as contentious.

To (finally) finish, I hope that I’ve clarified some aspects of videogame laws and done a decent job of explaining why these laws have been found unconstitutional. This case is important not only because it is the first time that the Supreme Court has ruled over whether or not videogames are even deserving of protection under the First Amendment (at least one ruling that was subsequently overturned stated that videogames were NOT speech) but also because it will be important in both subsequent legislation involving videogames and regulating content for children. If the Supreme Court rules California’s laws constitutional, there will be a flood of similar laws and the videogame industry may end up deciding that M-rated games just aren’t worth making thus limiting what game creators are able to make.

I don’t know what the Supreme Court will decide. With recent rulings like the Citizens United case and the case regarding videos depicting animal cruelty the court has taken a pretty strong pro-First Amendment stance but that’s no guarantee that they will do the same in this case. If anyone has any better insights into the legalities in this case I’d love to learn about it.