Tomorrow, the United Supreme Court will hear the case of Schwarzenegger v. Entertainment Merchants Association to resolve the question of whether California’s statute banning violent video game sales to minors violates their free speech. The resulting decision could radically shift the regulation of not only video games, but every form of entertainment going forward.
The statute in question, CA Law AB 1179 states that, “[a] person may not sell or rent a video game that has been labeled as a violent video game to a minor.” What causes a particular game to be labeled as such?
“Violent video game” means a video game in which the range 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 . . . [c]omes within all of the following descriptions: (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.
In addition, the statute requires that each “violent video game” imported into or distributed in California for retail sale be labeled with a solid white “18” outlined in black. Any violations could result in a fine in an amount of up to $1,000. The rationale behind the California statute was that exposure to “violent video games” causes violent, aggressive, and antisocial behavior in minors. Restricting access to such games would prevent psychological or neurological harm.
Almost as soon as this law was passed, both the Entertainment Software Association and Entertainment Merchants Association filed suit in federal court to overturn the law, claiming the statute violated the free speech of minors. Both the trial court and appellate court agreed that the law was unconstitutional since it was overly restrictive of minors’ free speech rights. This was not particularly shocking as similar statutes around the country had been previously struck down by other federal courts, and historically, censorship laws in the United States have been heavily disfavored by the courts. However, California appealed the case to the United States Supreme Court, and in a bit of a surprise, the Court agreed to review the case.
What will the U.S. Supreme Court do? If it follows established precedent dealing with censorship of mass media, the video game industry should have nothing to worry about. Unfortunately, the current make-up of the Court and its apparent willingness to ignore prior case decisions makes predicting the outcome very difficult. Free speech advocates and other entertainment groups are greatly concerned that if California’s statute is upheld, other forms of entertainment could also be restricted in the future.
Below are some excerpts of various briefs filed by the parties and other interested groups:
State of California
The only material covered by the Act represents the violence equivalent of sexual obscenity; video games sold to minors that are not offensively violent will retain their full First Amendment protection. [ESA and EMA] themselves go to great lengths to ensure that minors cannot purchase these games on their own, insisting that parents make the informed purchase for them by including descriptions of the level of violent content contained in rated games. And the Act will…target only the 8 to 17 percent of minors who purchase video games outside the presence of a parent. So for the vast majority of minors whose parents purchase video games for them, the Act will have no impact whatsoever. In the limited context of these commercial transactions, the Act simply advances the fundamental right of parents to direct their children’s development in a manner best suited to the individual needs of the child.
The Act does not prohibit minors from purchasing the Bible, Harry Potter, children’s stories such as Snow White, or other literary writings and media. The Act patently protects such works when sold to minors and adults alike. [California] agree[s] that the literature…is fully protected by the Constitution, and it will remain so under the Act. The material covered by the Act cannot be fairly analogized to the types of speech that have been historically protected. In truth, the video games subject to the Act’s restrictions have no historic parallel other than obscenity.
Entertainment Software Association and Entertainment Merchants Association
The California statute at bar is the latest in a long history of overreactions to new expressive media. In the past, comic books, true-crime novels, movies, rock music, and other new media have all been accused of harming our youth. In each case, the perceived threat later proved unfounded. Video games are no different. They are a widely popular form of expression enjoyed by millions of people. As such, under the First Amendment, they cannot be censored absent the most compelling justification, based on firm evidence of harm, through a narrowly tailored statute where there is no less-restrictive alternative.
State Senator Leland Y. Yee, Author of the California statute
The interactive nature of video games is vastly different than passively listening to music, watching a movie, or reading a book. With interactive video games, the child becomes a part of the action which serves as a potent agent to facilitate violence, and over time learns the destructive behavior. This immersion results in a more powerful experience and potentially dangerous learned behavior in children and youth. In fact, often times it is the same technology that our military and police use to simulate and train for real life battle conditions and violent law enforcement confrontations in the community.
Moreover, there is a practical side in favor of the State’s effort to regulate the sale or rental of violent video games to children. Parents can read a book, watch a movie or listen to a CD to discern if it is appropriate for their child. These violent video games, on the other hand, can contain up to 800 hours of footage with the most atrocious content often reserved for the highest levels that can be accessed only by advanced players after hours upon hours of progressive mastery.
Just as the technology of video games improves at astonishing rates, so too does the body of research consistently demonstrate the harmful effects these violent interactive games have on minors. Hundreds of peer-reviewed studies, produced over a period of 30 years documenting the effects of screen violence (including violent video games), have now been published in the professional journals of the American Academy of Pediatrics, American Academy of Child and Adolescent Psychiatry, American Psychological Association, American Medical Association, American Academy of Family Physicians, and the American Psychiatric Association and others.
Various Social Scientists, Medical Scientists, and Media Effects Scholars
California’s ban on the sale and rental of violent video games to minors is based on profoundly flawed research and disregards recent empirical evidence contradicting the harm to minors that California asserts arises from the playing of violent video games (or any other harm).
Microsoft is concerned that uncertainty regarding the reach of the California statute forces video game developers, publishers, and distributors into either of two unacceptable positions. They may engage in self-censorship to mitigate the risk of facing substantial penalties–$ 1,000 per violation (i.e., for “[e]ach . . . game” imported or distributed)–for concluding incorrectly that a particular game need not be labeled as “violent.” Or they may prophylactically label any questionable games as “violent” and thereby shut those games out of retail channels unwilling to assume the $1,000-per-violation risk associated with selling them. Confronting potential speakers with this Morton’s Fork undermines the creative process and is antithetical to the First Amendment.
The State of Louisiana (joined by 10 other States)
California’s law falls squarely within the limits on juvenile freedoms which this Court has upheld. In fundamental realms–such as voting, marriage, contracts, privacy, travel, juries, sentencing, and speech–states may (and sometimes must) treat minors in ways that would be inconceivable for adults. California’s law is situated within this sensible and laudable tradition. If a state may restrict a minor’s right to vote or to marry, then it may also restrict her ability to purchase graphically violent video games. If a state may not impose the death penalty on minors–because they are “more vulnerable … to negative influences and outside pressures,” –then a state may also keep them from buying games which invite them to commit digital atrocities.
California relies on outdated statistics in its effort to convince the Court that the ESRB’s rating system is flawed and should not be deemed an appropriate less restrictive alternative to advance the State’s interests. California claims an interest in “helping parents direct the upbringing of children and protecting them from harm caused by playing offensively violent video games.” Without conceding that video games cause any harm, Activision Blizzard submits that current statistics — including those from studies commissioned by the FTC — demonstrate that children cannot easily purchase violent video games and that California can easily advance its goals by supporting the existing ESRB system.
Motion Picture Association of America, Inc. and Other Associated Entertainment Groups
If the Court were to uphold California’s statute (particularly on the ground that depictions of violence are categorically excluded from First Amendment protection), its reasoning could not logically be limited to the particular medium of video games. Absent such a limitation, moreover, state and local governments would be free to impose similar restrictions on the depictions of violence in other media–for example, by imposing sanctions on theater owners that permit minors to see motion pictures with violent content….
That chilling effect would ensue even if the Court were to attempt to limit the scope of its decision to depictions of violence in video games, in light of the increasingly symbiotic relationship between video games and motion pictures and the increasingly blurred line between different forms of media more generally.
The real question is why is this statute necessary at all? The video game industry has proactively adopted a voluntary and widely used rating system for video games, which is implemented by the Entertainment Software Rating Board (“ESRB”). This body assigns independent age ratings and content descriptions for video game content, so that parents are well-informed about each specific game.
Additionally, retailers have agreed not to sell games that are rated Mature to minors under the age of 18. A 2008 FTC survey (utilizing 13- to 16-year-old undercover shoppers) found that 80% of minors who attempted to buy an M-rated video game from a retailer were refused. This rate of success compares very favorably to minors turned away from purchases of tickets to R-rated movies (72%), R-rated DVDs (46%), and music CDs labeled with a Parental Advisory Label (28%).