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Video Game Regulation and the Supreme Court: Schwarzenegger v. Entertainment Merchants Association
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Video Game Regulation and the Supreme Court: Schwarzenegger v. Entertainment Merchants Association

November 1, 2010 Article Start Page 1 of 3 Next

[Attorney Greg Boyd takes a detailed look at the arguments in the upcoming Supreme Court case on First Amendment issues as regards video games, and then analyzes the possible reasons SCOTUS accepted the case and what outcomes may arise from it.]

Content regulation generates more discussion than almost any other issue in the game industry. One of the "biggest" cases ever in the game industry, and certainly the most important case on games, is now pending before the Supreme Court. That case, Schwarzenegger v. EMA, is about a California law designed to limit the sale of violent video games to minors.

On November 2, 2010, the Supreme Court will hear oral arguments in the case. Based on those arguments and associated written material, the Court will then decide whether the law is unconstitutional. Because this is a Supreme Court decision, the result will be binding nationwide, not just in California.

As a result of the far reaching effects and strong feelings, it is easy to find a great deal of opinion and misinformation related to the case.

This article aims to be as factual and unbiased as possible in its reporting and analysis of the case. Below, we will discuss the history of the case, the main arguments for both sides, and an analysis of the potential consequences of the decision.

The California law was originally introduced by Leland Yee, a Democrat and state senator for California. The intent of the law was to prevent violent video games from being sold to minors, and required a 2 by 2 inch sticker placed on each game labeled as violent that read "18+".

This label would be in addition to any ESRB rating on the game. The primary responsibility for compliance would fall on retailers, who could be fined $1,000 per violation for noncompliance.

An obvious first question is, "What exactly constitutes a violent video game under the statute?" The statute has an extensive definition section that makes an effort to answer the question. The definition from the statute is:

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. (Cal. Civ. Code § 1746(d)(1) (2009)).

Some of the more legally minded may recognize the first half of the definition. This is nearly identical to the famous Supreme Court test for obscenity known as the Miller test. It is slightly modified by adding the element addressing minors, but this is clearly an effort to make the statute consistent with prior Court precedent.

The legislation was passed at the California state level, but never went into effect. As a first step in the case history, the ESA (in the case with the EMA) brought the legislation before a federal district court for a preliminary injunction hearing. This is a type of hearing that, if successful, can stop something from happening, such as preventing a law from going into effect.

The ESA won that lower court decision. The court granted a preliminary injunction which prevented the legislation from ever going into effect. California appealed the decision to the 9th Circuit Court of Appeals. At the appellate level, California lost the case again, so the legislation was still unenforceable. After this second loss, California appealed one final time to the Supreme Court.

At this stage of the case history, it is worth noting that not all cases appealed to the Supreme Court get heard there. For most cases in California, the 9th Circuit Court of Appeals would be the last stop. After a decision by that court, the Supreme Court appeal starts with a type of application process. Each year about 10,000 cases are offered up to the Court for review. Of those, only about 100 will actually make it to oral argument.

The parties file a petition asking the Supreme Court to hear the case, and four of the nine Justices must vote in favor of the hearing for the case to make it before the Court. When the Supreme Court decides to hear a case it is called "granting a writ of certiorari" or more often shortened to "granting cert."

There are many possible reasons for the Supreme Court to grant cert. Most commonly, the Court does so for issues of great national importance where states are split on an issue. A state split means that given the same facts, federal courts in different areas of the country are ruling in different directions. A "split" is a way of expressing that there is a disagreement on what the law is in the country, so the Supreme Court decision is needed to make a definitive ruling.

Article Start Page 1 of 3 Next

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Brice Gilbert
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The evolving nature of video games angle is an interesting one. I don't think we are anywhere close to the holodeck scenario. For me that is the only situation where video games might become something else. However, I'm not sold on the idea that photo-realistic videogames are somehow uniquely different than other mediums. A filmmaker can make something truly horrific (these films exist) that most people would find deplorable. I think as games get more and more realistic we as an industry will have to come up with ways to combat such content. It could be more mature (less killing for no reason), or maybe you just dumb the graphics down as a stylistic choice. But again I think you will have the equivalent of the jump scare, ultra violent horror movies, and the drama and "high art" of The Godfather coexisting. The ultra disturbing stuff will exist, but on the fringe. Ultimately it will be protected if not contested just like every other medium.

bryan young
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I put up a post on my blog yesterday that covers a lot of the same territory (If I can self-link for a moment)

However, I also cover a couple other common misconceptions that often come up in discussions of videogame laws such as the fact that film ratings are NOT legally enforced either. Nearly every time a story about a videogame violence law being passed is posted online there will be someone commenting "so what? this will just make it like movie ratings" when in reality film ratings are just like videogame ratings in that they are voluntary and self-enforced.

Brandon Davis
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The author of the article is correct in stating that there has been no causal relationship between video games and violence. There is probably more violence engendered by lawyers arguing bull shit issues than anything that video games could foment

Leland Yee is a charlantan of the first order. He should find some other way to get elected to office.

Matthew Mouras
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This is a fabulous article. Very well written and succinct. I was happy to find Gamasutra posting something on this - I hadn't followed it as closely as I would have liked and this got me up to speed.

Thanks much to the author.

Mark Brendan
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"I think as games get more and more realistic we as an industry will have to come up with ways to combat such content."

Er, why? Why shouldn't extreme content exist in games in much the same way as it does in extreme cinema (which you also come down hard on by using the term deplorable)? The use of the term "combat" sounds an awful lot like ban or self-censor. I'm broadly in agreement with other parts of your post (holodeck, treat games like other media, etc), but this one bit I quoted seems to support the censorship agenda. Also disagree that toned down = mature, which I think you allude to at one point. For example, read the Naked Lunch, look at a Francis Bacon or Heironymous Bosch painting, or watch a Takashi Miike or an early Tarantino film).

If we take this medium to be an artform (which I know is contested point, but I'm taking it as read that it is), then the artist should be able to express whatever they choose, subject to the usual freedom of speech limits as outlined in the excellent article (e.g. don't demostrably incite serious crimes, or shout fire in a crowded theatre).

Justin Kwok
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Also, I think that as games evolve they will move further and further away from violent content. It will always exist but as we figure out ways to convey comparing narrative people will become bored of always shooting things (I already am).

One day (and it's already starting to happen) we will have Mature games that are actually Mature and not 14 year old pubescent male power fantasies.

Michael Joseph
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Great article.

Alexander Jhin
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I find the argument that "Games aren't speech yet they influence people's attitudes and actions" very stupid. The very importance of "speech" is that it influences people's actions and attitudes! You can't have it both ways. Games are speech, therefore strict scrutiny applies, therefore, the California law is not legal.

As an aside, the article implies that child pornography is an example of obscenity. Legally, child pornography and obscenity are completely different. Obscenity is illegal because it has no redeeming social value. Child pornography is illegal because it represents defacto abuse of a child and its mere existence represents ongoing abuse to the child (which is why possession is also illegal.) Child pornography created without real children ("virtual child porn") is technically legal, because it doesn't represent abuse of a real child.