Analysis: What's Taking So Long With The Supreme Court Video Game Case?
[In this analysis piece, Gamasutra editor-at-large Chris Morris looks at why the Supreme Court hasn't come to a decision yet on California's violent video game bill seven months after its hearing.]
There's a gong in the offices of the Entertainment Software Association that hasn't been rung for a long time.
It's called the Supreme gong – and the rule of the office is that it shall remain silent until the Supreme Court announces its ruling on Brown v. EMA (formerly known as Schwarzenegger v. EMA). Justices heard oral arguments for that case last November, but seven months later, they have yet to hand down a decision. What's going on?
Predicting what the Supreme Court will do is a fool's game – and predicting when
they'll rule is doubly ridiculous, but even Court observers admit they're a bit baffled why this one is taking so long.
Tom Goldstein of Goldstein, Howe and Russell suggests "there could be a dispute among the Justices voting to invalidate the statute, over whether the ground is the First Amendment or vagueness."
That's possible. At the oral arguments last year, which were attended by Gamasutra
, the Justices grilled California's supervising deputy attorney general Zackery Morazzini on both unclear language in the law as well as the cascading effects it could have on other entertainment industries.
"What's next after violence? Drinking? Smoking? Will movies that feature scenes of smoking affect children? ... Movies that show smoking can't be shown to children? Will that affect them? Of course, I suppose it will. But are we to sit day by day to decide what else will be made an exception from the First Amendment? Why is this particular exception okay, but the other ones that I just suggested are not okay?," said Justice Antonin Scalia.
The case revolves around a 2005 California law that made it illegal for retailers to sell violent video games to anyone under 18. Then-governor Arnold Schwarzenegger had argued that violent games are on the same level as sexual materials, of which the government can restrict sales. In addition to regulating the sale and rental of these games, the California law (which was adopted in 2005, but never took effect) would have imposed a strict labeling requirement on games.
If the Court rules for the video game industry, it would be a notable step towards quieting the long-simmering debate about violent games. If the Court rules for California, retailers in that state will have to enact stricter protocols to ensure minors do not buy the games, just as stores do with cigarettes and alcohol – and porn.
It could, in fact, be porn that's holding up the decision.
California is asking the Court to review its law under the standard set by 1968's Ginsberg v. New York. Essentially, they're saying the law must be upheld if the Court feels it wasn't irrational for the state to enact the law because it felt violent games might be harmful to minors.
Ginsberg is the case that allows states to regulate the distribution of adult materials to minors. And this case attempts to draw a line between the psychological effects of sex and violence.
"What [the Court] says about the regulation of minors and images of violence surely could impact regulations concerning minors and images of sexuality," says Douglas A. Berman, Robert J. Watkins/Procter & Gamble Professor of Law at Ohio State University's Moritz College of Law, in a blog posting
. "Throw in the impact of modern technology and new forms of communication (e.g., sexting involving minors and/or Weiners), and it seems likely that some Justices may be thinking about how the Court's ruling and dicta in EMA could impact porn regulations and prosecutions."
While this is a case that might seem open and shut to gamers, it's one with far-reaching implications – and that tends to slow things down.
Regardless, it's still a near certainty the Court will issue a ruling before the end of the month. Justices haven't extended a session into July in recent memory, as they take the end of June deadline very seriously.
The next opportunity at a decision will come Monday.