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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 Previous Page 2 of 3 Next

In some cases, the reasons for granting cert. are mysterious. The order granting cert. is usually only a sentence or two long. The reasons may be stated in the Court's opinion, but often the reasons are only inferred much later by Supreme Court scholars after a decision is made. The Court reviews everything associated with the decision, and argues about the reasons for granting cert. in context with some historical perspective.

In this case, there is no state split on this issue. The states have been unsuccessfully trying to regulate content in games for years. To date, there have been 12 cases in eight years trying to impose some type of state-level regulation on video games. The ESA has challenged all of these cases through a process similar to the California case, and won every time.

In fact, in a recent victory in Illinois, the ESA also won an award of $510,000 in attorneys' fees as well as the victory squashing the legislation. The ESA also received a $282,794 reimbursement of attorneys' fees in California for this case.

Overall, the ESA has received more than $2M in attorneys' fees from a number of regulation cases. The attorneys' fees award is significant because it is unusual in the U.S., where each party usually pays its own fees.

The precedent cases are unanimous, and there is no reason to expect a different result in future cases. So, removing the "state split" idea for granting cert., legal scholars are left guessing why the Supreme Court took the case. We may not ever know for certain, but we will have a better idea after the Court decides this case.

Why do the states keep losing? The reason is tied to First Amendment protection of free speech. The government cannot usually regulate speech, but there are some narrow exceptions.

A person cannot yell "fire" in a crowded theater. Obscenity, such as child pornography, is not considered speech and therefore is not protected. Still, these are exceptions to the general rule are very narrow.

To date, courts have looked at this type of state legislation as regulation of free speech. Specifically, the courts viewed it as a type of regulation referred to as a "content-based regulation." The statutes are evaluating the content of the speech, game violence, and making a prohibition based on that content.

This type of regulation is possible under the First Amendment, but very difficult. It is so difficult because the standard of judicial review or "test" that a content-based regulation has to pass in order to be deemed Constitutional is enormously burdensome.

Before the court chooses which test to apply, both parties argue about what test is appropriate. This article will limit the discussion to the test normally applied in content-based regulation cases: the "strict scrutiny" test. The rationale behind the test is that the Constitution prevents the government from regulating the content of speech except under the narrowest of circumstances.

To pass the test, a statute must: (1) "serve a compelling governmental interest," and (2) be "narrowly tailored" to satisfy that interest. Narrowly tailored means there must be no less restrictive way to accomplish the goal. The compelling governmental interest prong of the argument means that there has to be a proven and powerful governmental interest at stake.

The state statutes have been failing this test for two main reasons. First, the compelling governmental interest prong is difficult because there is no solid data to support the claim that exposure to violent games harms adults or children. Certainly, some studies have indicated that harmful effects may be possible. However, those studies appear to be preliminary at best, and most are widely criticized by serious academia for a number of reasons, including flawed methodology or obvious political agenda.

Second, the ESRB is already in place with a robust rating system for games. To pass the "narrowly tailored" prong of the test, a party has to show that there is no less restrictive means to achieve the state goal.

While the ESRB may not be perfect enforcement, the self-regulatory effort is a serious one. Those opposing the statutes argue that the ESRB rating system, or some other mechanism, is always possible as a less restrictive means to accomplish the statute's stated goals. In short, the statutes have not been "narrowly tailored" enough in the past and have failed this prong of strict scrutiny.

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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.