Monday, June 27, 2011


Today is a good day. Today I am proud to be an American, a New Yorker and an attorney. Today our nation, the United States of America, has taken a huge step forward in the area of human rights and liberties. We should all be proud to be a part of it. I am speaking, of course, about the Supreme Court's declaration today that video games are protected speech under the first amendment.

Why, did something else happen?

In Brown v. Entertainment Merchants Association, 564 U.S ____ (2011), decided June 27, 2011, the Supreme Court in a 7-2 decision struck down California Assembly Bill 1179 (2005), which forbade the sale of "violent video games" to minors and imposed a fine for each violation. It marks the end of a 6-year legal battle between the State of California and the Entertainment Software Association (ESA) and a significant victory for freedom of expression in entertainment. The full decision can be read here. Why is this a big deal? What's so bad about forbidding the sale of "evil" materials to minors? Let's break it down.

Taken from the opinion of the court, California Assembly Bill 1179 (2005) (which can be read here) prohibits the sale or rental of certain games to minors and requires their packaging to be labeled "18". The act covers games "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 a manner that "a reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors," that is "patently offensive to prevailing standards in the community as to what is suitable for minors," and that "causes the game, as a whole, to lack erious literary, artistic, political, or scientific value for minors." 1746(d)(1)(A). Violation of the act is punishable by a civil fine of up to $1,000. 1746.3 The law was taken up by the ESA for a pre-enforcement challenge and the California Supreme Court found it unconstitutional. The Circuit Court for the Ninth Circuit affirmed, and we find outselves at the Supreme Court.

I can see where California is coming from. As an alleged adult and potential parent, I can understand wanting to protect my child from some of the more deplorable media available out there. To a certain extent, the standard California was attempting to apply here is comparable to the standard that states in the past have attempted to apply to other media when classified as "obscenity." Production or promotion of "obscenity" has been criminalized but the California law stopped short of that, prohibiting only the sale of so-classified games to minors. In essence, it would have treated certain games like pornography.

Furthermore, studies have shown that those who enjoy video games are aging. The average gamer, according to this site, is now 37 years old and has been playing for at least 12 years and the average age of the most frequent game purchaser is 41 years old. That means that California's law (which, again, proposed only to restrict the sale of certain games to people under age 18) would not restrict the sale of electronic entertainment to its most active and passionate supporters.

The ESRB also has its own rating system, similar to that of the MPAA. Like the ratings attached to movies - PG-13, R, NC-17 - games have a similar system, self-imposed, running from E for everyone to AO for adults only. The ESA reports that 76% of all games sold in 2010 were rated "E" for Everyone, "T" for Teen, or "E10+" for Everyone 10+. Wikipedia reports that in the history of ESRB ratings, only 21 games have ever gotten the dreaded AO. None of these games have ever sold well (nor have they ever been reviewed well either). Just as certain movies have been damaged financially by an undeserved NC-17 rating, so too have games been damaged by an AO rating. The imposition of California's law (which could apply to games rated M as well) could widen this damage and lead skittish game companies to play it safe, depriving adults of their entertainment.

Luckily, the Supreme Court has alleviated this fear. The majority's opinion calls to attention the curious distinction America has made between depictions of sex and violence. The distribution of depictions of sexual content, according to the opinion, has long been restricted in this country as obscene. Had California's law been tailored to sexual content instead of violence, therefore, it appears that it would have had a greater chance of being upheld. The opinion then traces America's long history of attempts at censorship of violence. The majority wisely points out the graphic depictions of violence in childrens' books, from Grimm's Fairy Tales (did you know that the wicked queen in Snow White is forced to dance in red hot slippers until she dies?) to the Odyssey, to the Lord of the Flies (Piggy's murder). They then point to the attempts to ban everything from trashy novels to movies to radio dramas and comic books - each effort has eventually failed.

In the end, the Supreme Court declares that video games are protected speech under the first amendment. Therefore, a law can only restrict this speech based on its content if it passes the strict scrutiny test. The law must be justified by a "compelling government interest" and must be "narrowly drawn to serve that interest." California's law cannot pass this test. California cannot prove the existence of a link between violent video games and harm to children. They tried to do so by way of competing psychological studies, but the Court wisely concludes that these studies are deeply flawed. The studies show that violent video games produce the same psychological results as watching Bugs Bunny cartoons, playing Sonic the Hedgehog or viewing a photograph of a gun. As the court states, "California has (wisely) declined to restrict Saturday morning cartoons, the sale of games rated for young children, or the distribution of pictures of guns."

It comes down to the fact that the law is wildly underinclusive. "Here, California has singled out the purveyors of video games for disfavored treatment - at least when compared to booksellers, cartoonists, and movies producers - and has given no persusive reason why." They go on to talk about other things as well - about the ESRB's rating system and how the law doesn't really seem an effective way to assist parents who don't want their kids getting their hands on these things.

I could go on with this all day, as it's fascinating to me, but I have work to do. If you got this far and don't want to scroll up again, read the opinion here and let me know what you think.

1 comment:

FemmeJr said...

I personally hate the idea that everything-- movies, television, video games, magazines-- has to be appropriate for children. I'm an adult and should be able to enjoy things within the adult space.

I just happy that the Supreme Court's penchant for ruling in favor of Big Business finally benefited me, for once.