The case – Schwarzenegger v EMA—revolves around a 2005 California law that made it illegal for retailers to sell violent video games to anyone under 18.
During oral arguments, Justices almost immediately began peppering California’s representative Zackery Morazzini about the vagueness of the law’s language.
“Would you get rid of rap music? Have you heard some of the lyrics of some of the rap music, some of the original violent songs that have been sung about killing people and about other violence directed to them?” asked Justice Sotomayor. “Why isn’t that obscene in the sense that you’re using the word—or deviant?”
Justices also noted that the state had failed to clearly delineate what constituted excessive or deviant violence in games—which would make it hard, if not impossible—for video game developers and publishers to know what was safe to put into games.
“A law that has criminal penalties has to be And how is the manufacturer to know whether a particular violent game is covered or not?,” asked Justice Scalia. “Does he convene his own jury and try it before—you know, I really wouldn't know what to do as a manufacturer.”
Further, he added, the effects of classifying video game violence as something that can be regulated could lead to wider regulation of the entertainment industry.
"“It has never been understood that the First Amendment covers portrayals of violence. What’s next after video games? Smoking?"
“I’m not just concerned with the vagueness; I am concerned with the First Amendment,” said Scalia. “It has never been understood that the freedom of speech did not include portrayals of violence. … What’s next after violence? Drinking? Smoking? Will movies that feature scenes of smoking affect children? … Movies that show smoking can't be shown to children? Will that affect them?
Of course, I suppose it will. But are we to sit day by day to decide what else will be made an exception from the First Amendment? Why is this particular exception okay, but the other ones that I just suggested are not okay?”
Morazzini argued to the Court that the sale of sexually explicit content is already regulated to minors and the state maintained that the same guiding principles applied to violent video games—in particular, games in which a reasonable person would find the onscreen action appeals to a deviant or morbid interest in minors, is patently offensive to prevailing community standards as to what is acceptable to minors and titles that lack artistic merit.
Justices seemed hesitant to agree, though.
“There has been a societal consensus on sexual material and there are judicial discussions on it,” said Justice Kennedy. “You’re asking us to go entirely into an area where there is no consensus.”
The video game industry didn’t get off lightly either. Justices—particularly Justice Breyer—seemed to feel the industry was too casual in its dismissal of studies showing the link between video games and their psychological impact on children.
“Is there any showing that the States could make that would satisfy you, that would say yes, that's a sufficient showing for this law to go forward?,” asked Justice Alito.
“Any harm that is supposed to be inflicted on [children] is supposed to take place over a period of years, not minutes,” said Paul Smith, who represented the video game industry, “so the parent has ample opportunity to exercise parental supervision over what games are being played in the house.”
Justices also dismissed Smith’s assertion that the parental controls offered in many games were an effective way to prevent young players from viewing the most objectionable content.
“Any 13-year-old can bypass parental controls in about 5 minutes,” said Chief Justice Roberts. “We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they'll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down. We protect children from that. We don't actively expose them to that.”
M-rated titles (the rating which extremely violent games usually receive) do not make up the majority of games on the market. In 2009, they were just 17.4 percent of all games sold by unit. They do, however, tend to be the industry’s biggest hits.
Activision has made billions from its “Call of Duty” franchise (which includes last year’s top selling game “Modern Warfare 2”). And Take Two Interactive Software relies heavily on the “Grand Theft Auto” franchise for profitability. Even Electronic Arts , which in years past has been less dependent on the shooter genre, has shown an increased interest in those titles lately, because of their drawing power.
Previous attempts to regulate the sale of games have been struck down by lower courts, but those rulings don’t always carry as much weight for Supreme Court Justices.
“It’s not a court of correction, it’s a court of decision,” notes Miles Feldman, an entertainment litigator with Raines Feldman, LLP in Beverly Hills.
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