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Analysis: What's Taking So Long With The Supreme Court Video Game Case?
Analysis: What's Taking So Long With The Supreme Court Video Game Case?
June 17, 2011 | By Chris Morris

[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.

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Dan Felder
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It's like the Baseball controversy all over again. Okay, maybe not quite that bad - but still it's ridiculous.

Evan Bell
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Is that the "Who's on first?" controversy:)

Cody Scott
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I think Dan is referring to the "Did you take performance enhancing drugs" questioning of almost every MLB player.

Bart Stewart
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It's also possible that issues of state's rights are in play in the deliberations on this case.

Invalidating Ginsberg on the issue of limiting access to certain materials might be desirable to some on the Court. But if that comes at the cost of imposing a federal standard over letting the individual states decide, that might persuade those justices to think very carefully about how to argue their point so as not to disrupt any more of the current federal legal structure than absolutely necessary.

I can see how that might require some extra time.

Just guesswork on my part, though; there's just no telling how our robed masters will actually rule.

Cody Scott
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well the problem with the states rights argument (and im saying this as a civil war buff who has studied states rights almost my whole life) is that the individual state does not have the right to ban something that is outlined specifically in the constitution, like free speech, the right to own and bear arms, or voting.

What the real problem is, is that there is already a rating board that does its job pretty well . every store i have ever been in refuses to sell a mature game to someone under the age of 17, and ive even seen a store refuse to sell a T rated came to a 8 year old without a parent.

even if there is a law banning the sell of violent games to minors in california a minor will still be able to get there hands on the game if the parents dont watch what the kids are doing. i started growing facial hair in middle school and had my big growth spurt and i could have passed as a seventeen year old if grew out my beard and had put on a jacket.

and the California law doesnt really define violent. a Looney toons game could be considered violent, or even a virtual whack-a-mole game could also be considered violent. But there is a big difference between Gears of War, GTA, and a looney toons game.

the levels of violence between Halo and Call of duty are drastically different and they are both M rated. One could Shoot off body parts with certain weapons in Cod, while violently the worse thing that could happen would be blood coming out of a player.

Alexander Jhin
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The root of the problem is that Ginsberg is irrational. There is almost no scientific evidence that non-violent pornography harms children, yet we restrict that speech anyways.

Thus, Ginsberg sets a dangerous legal precedent: If we can restrict speech of something that doesn't provably cause harm to minors, why can't we restrict violent speech which has a tiny bit of proof of harm to minors?

It's very hard to reconcile the two.

People always wonder why I bring up how irrational anti-pornography laws are whenever we discuss anti-violent speech laws. It's exactly because of this: anti-porn sets the precedent for anti-violent speech, which in turn sets precedent for anti-free speech in general. I remember sending a letter to the editor of Game Developer magazine, telling him not to blindly accept anti-porn laws as legal or rational -- he wrote back, saying porn had NOTHING to do with violent games. Hmm, really? Nothing to do?

Frankly, Ginsberg needs to be overturned, which in turn makes it easier to overturn the violent games law. Sadly, Brown v. EMA cannot retroactively undo Ginsberg, because it is out of scope of the case.

John McMahon
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Are you for porn being available to all children regardless of age? Let little boys and girls see acts like gay/lesbian porn, BDSM, etc.

That could really mess with people's minds at that age without proper restriction. And you cannot expect the parent to control access to that material if it will be publicly displayed for all. Well as parents have to know what their kids are buying and/or bring home and can control that, They do not control the internet, TV, phone service, etc.

Some material does need to be proper managed at the source.

Alexander Jhin
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@John - I don't want the government regulating speech. Period. But I'm stickler for the First Amendment.

On the other hand, the government mandating industry provide citizen control on media, such as the V-Chip, that give the parents the power to choose what their children see or don't see, I'm all for that.

As for the messing with minds, we don't really know. As Bryan Young points out in his message, there is little research into the harm of sexual speech on children, though the consensus is that non-violent sexual speech does not harm adults.

Any restriction of speech must pass Strict Scrutiny:

1) Compelling state interest

2) Narrowly tailored

3) Least restrictive means.

With little psychological research proving sexual speech harms children, and slightly more, but still little research proving violent speech harms children, both Ginsberg and Brown fail strict scrutiny.

bryan young
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The problem is that there is very little research into the effect of porn on kids because of the social stigma on showing kids porn. To do such a study would have to get approval from a human subjects board - which i don't see happening - and then you would have to get parent's permission to show kids porn - something else I don't see happening. As I understand it the few studies that have been done have been on adults or retroactive studies where adults discuss their childhood experiences with porn.

Cody Scott
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Well If enough people do not want porn to be shown publicicly to their children i dont see a problem banning showing porn since its the general consensus that it is indecent material. but that goes for pictures, movies, posters etc. The game issue though is different, violent movies have been shown in public and the same people who are against violence in video games still allow their children to see violent movies. its a double standard.

I would also like to remind everyone that at one point in time asteroids, and space invaders were considered violent due to the excessive amount of shooting in the game. Video games have always been under the attack of being "too violent." but this law claims that there is proof that violent video games cause violent actions in children but the study was funded by a group wanting that result. so that makes the study invalid.

Alexander Jhin
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@Cody -- What if enough people want to ban children from seeing violent games? Should we yield to consensus? How about if a majority of people want to ban images of smoking? If a majority wants to ban children from reading Huckleberry Finn, should we ban that too?

Our Free Speech principles are designed to protect the most hated, horrible speech -- even if the majority doesn't like it. The First Amendment specifically protects what the minority feels is suitable speech.

However, I do agree that we should provide technology and all of the help possible to parents who want to keep their children from viewing sexual/violent/racist imagery. I just don't think the government should be the arbiter of allowed speech.

Alexander Jhin
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@Bryan -- Thanks! Your explanation of research into children viewing sexual material is more accurate than mine. However, in the absence of proof that sexual speech harms children, Ginsberg still fails strict scrutiny as the government does not have a compelling state interest in censoring sexual speech to children.

Research on violent speech and children suffers the same problem -- if violent speech is harmful to children, how can you ethically run an experiment showing violent speech to children?

Cody Scott
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@ Alexander

Oh Im not saying banning pornography entirely. what Im saying is how its illegal to Have posters with pornographic images in store windows and such because it is literally impossible for one to keep their child from seeing it. Same reason why one can not just run around naked.

I was pointing out how it is hypocritical to be attacking games when movies are just as violent and their is already a rating board that is well enforced to prevent those not of the proper age from being exposed to whatever is in the movie. In NC theaters go a step further and not allow more than 1 R rated movie ticket to be sold to someone at least 18 years old but not yet 21 (which i think is ridiculous since its not state law)

The same with games. we already have a private ratings board that does a good job rating video games and all stores that i know of already enforce the ratings given to the game. I have even seen a wlamart employee be treated like dirt by a parent because he refused to sell his child GTA IV without a parent saying that it was ok, and the walmart employee continued to refuse to get the game out of the case until he warned the parent of what was in the game and that he would only get it out of the case if he said that his child had permission to buy the game.

I agree with you any government regulation is an unnecessary step when there is a solution to the problem already .

Alexander Jhin
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@Cody -- Thanks for clarifying! It sounds like we're on the same page -- the majority can help parents regulate through independent, non-governmental ratings boards like ESRB and MPAA.