This essay originally appeared as part of on the Free Expression Policy Project (fepproject.org)

Update: On June 27, 2011 the Supreme Court struck down the California video games law. Antonin Scalia wrote for a majority of five justices that politicians cannot create new exceptions to the First Amendment based on the unproven assumption that the harm from certain content in entertainment outweighs the benefit. But a troubling concurring opinion by Justices Alito and Roberts, and a dissent by Thomas and Breyer, may invite censors to keep trying. See Requiem for California’s Video Game Law for a complete commentary.

 

(November 4, 2010) – If any recent oral argument before the Supreme Court demonstrated that when it comes to free speech, the usual categories of liberal and conservative do not apply, it took place on November 2, 2010 in the “violent video games” case – Schwarzenegger v. Entertainment Merchants Association.

Justice Steven Breyer, often categorized as a member of the liberal or at least moderate bloc of Supreme Court justices, was the most vociferous in defense of a California law that carves a new category of expression out of the protection of the First Amendment: video-game violence that appeals to a “deviant or morbid” interest of minors. In the absence of evidence that any particular kind of video game causes players to imitate the action onscreen, Breyer opined during the argument that common sense is enough to satisfy the First Amendment’s “strict scrutiny” test for laws that restrict expression.

Justice Antonin Scalia, by contrast, who is often viewed as the farthest-right politically of the justices, has been a relatively strong libertarian on matters of free speech, and this case was no exception. Scalia began the questioning of Zachery Morazzini, the lawyer arguing in support of California’s law, by asking rhetorically:

“What’s a deviant violent video game? As opposed to what? A normal violent video game?”

“Your Honor, ‘deviant’ would be departing from established norms,” Morazzini replied.

“There are established norms of violence?” Scalia shot back, clearly unsatisfied.

The California Law

California’s law bans the sale or rental of any video game that has been labeled as “violent” to anyone under 18. Violators face fines of up to $1,000. Separate sections of the law require labeling, according to a convoluted multi-part definition of violence.

That definition classifies as “violent” any 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 the game also satisfies a three-part definition borrowed from the Supreme Court’s standard for sexual material that is considered “harmful to minors” or “obscene as to minors.” As modified by the State of California, this three-past test requires that a “reasonable person” would find that the material “appeals to a deviant or morbid interest of minors,” that it is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that it lacks “serious literary, artistic, political, or scientific value for minors.”

Quite a mouthful – but California’s legislature is just one of nine state or city law-making bodies that have taken the “obscene as to minors” definition and modified it by leaving out any mention of sex. Federal courts have invalidated every one of these laws, partly on the ground that obscenity laws, to be constitutional, must specify what descriptions or depictions of sexual organs or activities are banned. Whatever the problems with the Supreme Court’s vague and subjective three-part description of obscenity – and they are many – taking out sex and importing concepts like “patent offensiveness” and “serious value” into new laws that target violence instead creates enormous problems of definition and application. As Justice Scalia put it at the oral argument, “Some of the Grimm’s fairy tales are quite grim, to tell you the truth. Are you going to ban them, too?”

“Not at all, Your Honor,” Morazzini replied.

At which point Ruth Bader Ginsburg, probably the most reliable First-Amendment advocate on the Court, joined in: “What’s the difference? If you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Why are video games special? Or does your principle extend to all deviant, violent material in whatever form?”

The Issue of Harm

In reply to Ginsburg, Morazzini refered to “substantial evidence” which he said showed that “the interactive nature of violent video games where the minor or the young adult is the aggressor, is the individual acting out this obscene level of violence, is especially harmful to minors.” But this “substantial evidence” is much more questionable than Morazzini implied. Professor Craig Anderson, the leading proponent of the view that video-game violence causes real-world aggression, and the psychologist on whom the California legislature heavily relied, has used dubious tests of “aggressiveness” in his laboratory experiments and has been equally result-oriented in his large meta-analysis of other studies of the effects of fantasy violence in video games.

In 2003, the U.S. Court of Appeals for the Eighth Circuit rejected Anderson’s view as a “vague generality” that “falls far short of a showing that video games are psychologically deleterious.” An Illinois federal judge likewise noted in 2005 that Anderson had admitted exaggerating the significance of studies that show a correlation, but not a causative relationship, between aggression and video game play, and had acknowledged that there are probably an “infinite” number of stimuli that could cause aggression or aggressive thoughts.”1

And in the case now before the Supreme Court, the Ninth Circuit Court of Appeals said that the many disclaimers in Anderson’s meta-analysis “significantly undermine the inferences drawn by the State in support of its psychological harm rationale.” Among other things, Anderson had admitted there was a “glaring empirical gap” in research about video game violence, and had “abandoned the age aspect” of his study, in part because ‘there was a hint that the aggressive behavior results might be slightly larger for the 18 and over group.’”2

Yet the belief in harmful effects persists and admittedly, it has the common sense appeal that Justice Breyer ascribed to it. In the unending battle between freedom and restraint in guiding the social development of adolescents and children, it has often been the more politically liberal advocates who have pushed for censoring violence, while the more conservative ones emphasize sex. Very few voices, other than those of free-expression organizations, point out that minors do have First Amendment rights, especially once they are teenagers, that censorship of both violent and sexual content is problematic, and that education is a better approach in dealing with minors’ exposure to a whole range of bad ideas.

A Narrower Law?

It is unclear what the Supreme Court will do with the harmful-effects issue when it decides Schwarzenegger. Not only Breyer but Chief Justice Roberts expressed eagerness to assume harm from violent video games. Indeed, Roberts seemed to be already planning the opinion he would like to write, striking down the law on grounds of overbreadth and possibly vagueness, while leaving open the possibility that a more narrowly drawn law restricting video game violence would be constitutional.

Clearly, the justices were upset by the game “Postal 2,” which contains particularly horrific imagery, and which California had submitted as part of the record in the case. Roberts asked Paul Smith, arguing for the video game industry: “So your position is that the First Amendment does not – no matter what type of law, whether this one is vague or not – that the State legislature cannot pass a law that says you may not sell to a 10-year-old a video in which they set schoolgirls on fire?”

Smith’s answer – that “there is no possible way … to use the English language to draw an exception to the First Amendment that would … “ – was cut off by Justice Samuel Alito, who reiterated Roberts’ point: “Let me be clear about exactly what your argument is. Your argument is that there is nothing that a State can do to limit minors’ access to the most violent, sadistic, graphic video game that can be developed?”

Smith stuck to his position, “that strict scrutiny applies, and that given the facts in the record, given the fact that the problem is already well controlled, that parents are empowered” by ratings and blocking mechanisms, “there isn’t any basis to say strict scrutiny is satisfied.”

Roberts pushed again: “So just to be clear, your answer to Justice Alito is at this point there is nothing the State can do?”

“Yes,” Smith acknowledged, at which point Justice Sonia Sotomayor jumped in: “Mr. Smith, how can you say that? There is plenty of proof that children are going into stores and buying these games despite the voluntary rating system. … And there is proof that some parents, as well intentioned as they may or may not be, have not been able to supervise that. So, starting from the proposition that there is a problem, it’s a compelling State need, why are you arguing that there is no solution that the State could use to address that problem?”

It was not Smith’s happiest moment, and it suggested why, despite an unbroken string of nine federal court decisions striking down video-game censorship laws, the Supreme Court decided to take up this case.

Bons mots

During the argument, Justice Ginsburg worried about the vagueness of the law. What age minor, for example, is to be considered in judging “serious value,” “patent offensiveness,” and so forth? She asked Morazzini: “is there any kind of opinion that the seller can get to know which games can be sold to minors and which ones can’t?”

“Not that I’m aware of,” he replied.

At which point Scalia jumped in with his unique brand of sarcasm: “You should consider creating such a one. You might call it the California office of censorship. It would judge each of these videos one by one. That would be very nice.”

The newest justice, Elena Kagan, had nearly the last word. “You think ‘Mortal Kombat’ is prohibited by this statute?” she asked Morazzini during his rebuttal. It is “an iconic game which I am sure half the clerks who work for us spent considerable time in their adolescence playing.”

Morazzini did not help his case by responding that the game was “a candidate” for government regulation.

Notes

1. See Marjorie Heins, “Why Nine Court Defeats Haven’t Stopped States From Trying to Restrict “Violent” Video Games,” and sources cited there on the issue of harmful effects.

2. Video Software Dealers Assn v. Schwarzenegger (9th Cir. 2009).