Monday, April 26, 2010

High Court to Rule on California's Violent Video Game Law

The Supreme Court today agreed to hear California's appeal of a Ninth Circuit ruling that overturned the state's restrictions on violent video games under the First and Fourteenth Amendments. 

The case, Schwarzenegger v. Video Software Dealers Ass'n, involves a facial free speech challenge to California's newly enacted sales restrictions on violent video games.  Under the law, "[a] person may not sell or rent a video game that has been labeled as a violent video game to a minor."  A "violent video game" is a game in which a player engages in violent acts against an image of a human, if those acts do 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 Ninth Circuit ruled that the California law was a content-based restriction subject to strict scrutiny, and that the state failed to articulate a compelling government interest, that the law was not narrowly tailored, and that the state could have adopted other, less restrictive alternatives to meet its objective.  The court thus overturned the law.

The issue before the Supreme Court is whether the Ninth Circuit should have applied strict scrutiny, or whether it should have applied the deferential "variable obscenity" or "obscenity as to minors" standard first mentioned in Ginsberg v. New YorkGinsberg held that states could prohibit the sale of sexually-explicit material to minors as long as "it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors."  This rational basis standard applied even though the material would not have been considered obscene for adults.

The choice of tests here is similar to the choice the Court faced just last week in U.S. v. Stevens.  In that case, the Court declined to carve out a new category of unprotected or lesser-protected speech for crush videos (depicting cruelty to animals), because crush videos have not been "historically unprotected" and didn't otherwise fit neatly into an established category.  So too, violent video games: While some of the content in some of these games may fit well with obscenity or "obscenity as to minors," much of it does not and otherwise defies easy categorization.

If the Court in Video Software is as reluctant to categorize as it was in Stevens, look for it to apply strict scrutiny as a content-based restriction on speech.  Then the Court will examine more carefully the link between violent video games and physical and psychological harm to minors--a link that the Ninth Circuit ruled the state failed to establish.


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Here we go again. I am sure we all remember Tipper Gore and the PMRC demanding basically the same restrictions on music. To this day I run across people who did not vote for Al Gore in 2000 because of Tipper's crusade.

What I find interesting here is whether video games should be labeled speech. Videos are. Music is. And if games are, then strict scrutiny should certainly apply.

If I were repping VSD (and I certainly would be), I would argue that most, if not all, video games contain a narrative. The user is merely an interactive part of the production. Stifling the sale of these games would then obviously be an infringement of creativity and expression.

It should also be argued that kids have played violent video games for decades. The only difference is that the new versions are more graphically detailed.

Finally, use the proverbial slippery slope. For every study that shows adverse effects to minors on video games there should be (and are) studies that show violent movies and music do the same.

So, do we arrest merchants who sell or rent violent DVDs to minors? Those who allow kids under 17 to enter an R-rated movie? Parents who purchase the games for their kids?

Finally, finally, video games already have parental ratings displayed on both sides of the exterior casing. Video games are also, due to issues of theft, are generally stored behind locked cases.

This is a silly case that should never have been granted cert. The 9th Circuit was correct in its finding. It is my opinion that the current court has taken this case merely to make a political statement to the 9th: "we are watching you."

Posted by: Darren | Apr 26, 2010 7:28:08 PM

Found an interesting law review article on point 60 Ala. L. Rev. 519 (2009)

The State of California has an uphill battle. The problem is that they label all video games as “violent.” However, if they made some attempt to distinguish games which are just inherently violent from those that are dangerously violent because they way they train a player, then they may have an argument.

There are two types of violent video games: those which are merely animated shooting galleries and those which instill a lethal skill set. The prominent element in the latter type of game is not communication; it is repetition and simulation (to acquire a skill set). Absent an element of communication, the First Amendment should not protectgames. Those games which are of the shooting gallery type are, almost, unquestionable protected by the First Amendment. This type of game usually has more of a storyline is analagous to literature (of some sort)–that is, there is some element of communication.

Funny how people want to take credit for the positive aspects of video games–learn a foreign language, learn to fly a plane, train the miliatry–but they want to deny that there are negative consequences from video games in which one acquires a skill set.

Posted by: David Scarbrough | Apr 27, 2010 8:42:21 PM

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