Arnold Schwarzenegger, Governor of California
Entertainment Merchants Association (EMA)
So, next month on Tuesday, November 2nd, 2010
, the Supreme Court of the United States
will be hearing oral arguments in the case Schwarzenegger v. Entertainment Merchants Association
, 130 S.Ct. 2398 (2010).
The Court will be reviewing the decision of the United States Court of Appeals for the Ninth Circuit in Video Software Dealers Association v. Schwarzenegger
, 556 F.3d 950 (2009).
As you may or may not know, this is the
violent video game First Amendment case.
The questions before the Court are:
1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?; and
2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny*, under Turner Broadcasting System, Inc. v. F.C.C.
, 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?
*”Strict Scrutiny” is the name the analysis the Court takes when government action does things like restrict Constitutional freedoms or discriminate on the basis of race. Under this standard, the law is not automatically invalid but the government can prevail if it shows that the law is narrowly tailored to effectuate a compelling state interest. Basically, this standard is very high and the Court will examine the evidence very carefully to determine whether the government has met its burden.
The Ninth Circuit, in Schwarzenegger, reviewed the lower court’s decision that California Civil Code Sections 1746-1746.5 violated the First Amendment. The Ninth Circuit affirmed this decision holding, among other things, that video games are expression protected by the First Amendment and that violence does not fall under the “obscenity”* exception to First Amendment protection.
*The First Amendment has never guaranteed the freedom to say whatever, whenever. Like falsely yelling “fire!” in a crowded theatre, or committing libel, defamation, or slander, obscenity is not protected by the First Amendment so states can do things like ban the sale of nudie magazines to minors. Although obscenity has a common definition of “indecent” or “offensive,” in law, obscenity has a very specific definition in that it only relates to sexual materials.
The Statute in question is as follows [edited for brevity]:
(d)(1) “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 does either of the following:
(A) Comes 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.
(B) Enables the player to virtually inflict serious injury upon images of 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.
[The Statute then defined “Cruel, Depraved, Heinous, Serious physical abuse, and Torture.” However, in front of the Ninth Circuit, California conceded that definition (B) above was unconstitutional and only argued that definition (A) was constitutionally permissible]
(a) A person may not sell or rent a video game that has been labeled as a violent video game to a minor.
(b) Proof that a defendant, or his or her employee or agent, demanded, was shown, and reasonably relied upon evidence that a purchaser or renter of a violent video game was not a minor or that the manufacturer failed to label a violent video game as required pursuant to Section 1746.2 shall be an affirmative defense to any action brought pursuant to this title. That evidence may include, but is not limited to, a driver's license or an identification card issued to the purchaser or renter by a state or by the Armed Forces of the United States.
(c) This section shall not apply if the violent video game is sold or rented to a minor by the minor's parent, grandparent, aunt, uncle, or legal guardian.
Each violent video game that is imported into or distributed in California for retail sale shall be labeled with a solid white “18” outlined in black. The “18” shall have dimensions of no less than 2 inches by 2 inches. The “18” shall be displayed on the front face of the video game package.
[Violation = fines of up to $1,000 but store clerks aren’t personally responsible, the retailer will have to pay]
The provisions of this title are severable. If any provision of this title or its application is held to be invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
[Basically, this section meant that when California conceded that 1746(d)(1)(B) was unconstitutional, the whole statute wasn’t automatically invalid]
Statutes like this one have been routinely struck down on First Amendment grounds by applying strict scrutiny to these content-based regulations. In Oklahoma (ESA v. Henry), Illinois (ESA v. Blagojevich), Michigan (ESA v. Granholm), Minnesota (ESA v. Hatch), Washington (Video Software Dealers Association v. Maleng), Missouri (Interactive Digital Software Association v. St. Louis County), Indiana (Kendrick v. American Amusement Machine Association) and Louisiana (ESA v. Foti), statutes restricting minors’ access to “violent video games” have been held unconstitutional. Similarly, statutes restricting access to violent movies have also been held unconstitutional (Video Software Dealers Association v. Webster).
It looks like it is an uphill battle for legislators with the weight of all this precedent against them, but politicians like to pick a “pet issue” and rally against it in order to gain voter support.
See Clay Calvert & Robert D. Richards, PRECEDENT BE DAMNED -- IT'S ALL ABOUT GOOD POLITICS & SENSATIONAL SOUNDBITES: THE VIDEO GAME CENSORSHIP SAGA OF 2005, 6 Texas Review of Entertainment & Sports Law 79 (2005).
All the courts are in agreement when it comes to these laws so it is odd that the Supreme Court would take this case. Usually, the Supreme Court only takes cases where there is disagreement in the lower courts or the case represents pressing issues of public importance. This has led some commentators to believe that the Court will actually rule in favor of California. But maybe the Court will affirm the lower courts in order to get states from continuing to pass these frivolous statutes.
ALRIGHT WHO CARES, WHAT DOES THIS MEAN FOR ME?????!!
--Well, the Court could hold that violence is the same as sex when it comes to the “obscenity” exception to First Amendment protection. This would greatly change the current regime of content-based regulation and would allow governments to place all kinds of restrictions on content that is violent. This however, is probably unlikely.
To paraphrase my Constitutional Law professor, when it comes to the First Amendment, the Court should use a scalpel and not a chainsaw. Even if the Court doesn’t equate violence with obscenity, they may make the narrow holding that banning the sale of violent video games to minors does not violate the First Amendment. Clearly, this is what California will argue for. In Ginsberg v. New York
(1968), the Court held that although the State wouldn’t be able to ban the sale of nudie magazines to adults or prohibit their creation, the State was allowed to ban the sale of nudie magazines to minors by employing a variable obscenity definition which considered the material obscene for minors even if it was not obscene for adults. And more recently, with the recent First Amendment in public schools cases, (Hazelwood School District v. Kuhlmeier
said it was ok for a school to delete student articles from student newspaper; Morse v. Frederick
said a school could punish students for holding “Bong Hits 4 Jesus” sign at school event but off school grounds; Bethel School District v. Fraser
said school could punish student for using sexual innuendo during speech at school assembly) the Court has shown that minors’ First Amendment rights are not the same as adults’ rights.
If the Court allows states to ban the sale of violent video games to minors it could have huge impacts on the industry. T-rated games might be considered “too violent” and thus have to be affixed with an “18” sticker. This might cause retailers such as WalMart to not even carry “18” games. The industry might begin to self-censor by erring on the side of caution and taking out more than is needed to comply with the statutes. Finally, if retailers are required to play all these games to determine if they need a label or not, retailers such as GameStop might just refuse to sell the biggest and longest games to minors at all for fear of violating the statutes instead of incurring the expense of reviewing every game individually. This would mean that 15-, 16-, and 17-year-olds (who most parents probably think are mature enough to make their own spending decisions) would have to get their parents to buy most of the video games they want.
So what do you guys think?
How should the Court rule?
How will the Court rule?
Is this all nothing more than old people gettin’ mad at young culture?
I will end the post with an excerpt from Judge Posner
’s opinion in Kendrick v. American Amusement Machine Association
“Maybe video games are different. They are, after all, interactive. But this point is superficial, in fact erroneous. All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive; the better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader's own. Protests from readers caused Dickens to revise Great Expectations to give it a happy ending, and tourists visit sites in Dublin and its environs in which the fictitious events of Ulysses are imagined to have occurred. The cult of Sherlock Holmes is well known.”