Justices Weigh California Video-Game Restrictions

By Mark Walsh — November 02, 2010 4 min read
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It was “Mortal Kombat” at the U.S. Supreme Court on Tuesday between the state of California, which is defending a law that restricts the sale of violent video games to minors, and game producers and sellers, who say the law violates the First Amendment.

California seeks to regulate games with a “deviant level of violence ... that can be no less harmful to minors” than the type of sexually explicit material that the court has said may be kept from minors, said Zackery P. Morazzini, a state deputy attorney general defending the law at oral argument.

Paul M. Smith, a Washington lawyer arguing on behalf of the video-game makers and retailers, said California has “not shown any problem, let alone a compelling problem, requiring regulation here in a world where parents are fully empowered already to make these calls” on whether their children should have access to violent games.

The two advocates faced a barrage of questions from the justices in Schwarzenegger v. Entertainment Merchants Association (Case No. 08-1448). Under California’s 2005 law, never enforced, violent games are defined as those that include “killing, maiming, dismembering, or sexually assaulting an image of a human being,” if the game lacks “serious literary, artistic, political, or scientific value for minors.”

The law bars retail outlets from selling or renting such games to anyone under 18. Parents would not be barred from buying the games for their children.

Justice Antonin Scalia asked Morazzini what other media violence might be open to regulation under the state’s theory about “deviant violence.”

“Some of the Grimm’s Fairy Tales are quite grim, to tell you the truth,” Scalia said. “Are you going to ban them, too?

Morazzini said no, that the difference between violence in books, movies, and music, on the one hand, and video games on the other is the interactive nature of the games, “where the young person [playing the game] is the aggressor.”

“What’s next after [regulating] violence” in media, Scalia asked, images of “smoking? drinking?”

Five justices expressed at least some doubts about the constitutionality of the California measure.

“You are asking us to go into an entirely new area [of speech regulation] where there is no consensus,” Justice Anthony M. Kennedy told Morazzini.

“Could you get rid of rap music?” Justice Sonia Sotomayor wanted to know, alluding to violent lyrics in that genre. Justices Ruth Bader Ginsburg and Elena Kagan also expressed concerns.

However, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Samuel A. Alito, Jr., appeared sympathetic to California’s efforts. (Justice Clarence Thomas didn’t speak.)

The difference between violence in books and movies and that in video games “may be that in these video games the child is not sitting there passively watching something,” Roberts told Smith. “The child is doing the killing. The child is doing the maiming, And I suppose that might be understood to have a different impact on the child’s moral development.”

Breyer said he examined the social science data cited by the California legislature and found that, while there is conflicting evidence and differing interpretations, it wasn’t unreasonable for lawmakers to conclude that a problem existed with the violent effects of games.

“Why isn’t it common sense to say that if a parent wants his 13-year-old child to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence upon small children and women and do this for an hour or so,” to conclude that state has the right to tell that parent to “go buy it yourself,” Breyer said.

Alito, alluding to games in which body parts are put through a meat grinder, said, “We have a new medium that could not possibly have been imagined when the First Amendment was ratified.”

Throughout the argument, the justices confronted a technology and games with which they did not seem to have much personal experience. Justice Kagan said that probably half the court’s law clerks spent their adolescence playing “Mortal Kombat,” a popular and gory game that Kagan called “iconic.” California does not say which games would be regulated by the law, so Kagan asked Morazzini whether the game “Mortal Kombat” would be covered.

“I believe it would be a candidate,” he replied.The state has cited another violent game--Postal II"--as one example of a game that meets the law’s definition.

Meanwhile, Kagan asked Smith whether all video games constitute speech, including the simple 1970’s game “Pong.”

“The games we’re talking about have narratives and plot,” Smith said, just like books and movies.

Earlier, Smith said video games were the latest new medium to attract scrutiny from lawmakers.

“We have a history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling, our children are all going to be turned into criminals,” Smith said, citing 19th Century crime novels and 1950s comic books.

“There were hearings across the street in the 1950s where social scientists came in and intoned to the Senate that half the juvenile delinquency in this country was being caused by reading comic books,” Smith said.

Morazzini stressed that “California’s law really is not an ordinance that is directed to a plot of a game.”

“It’s expressly directed to games with essentially no plot, no artistic value,” he said.

The justices will likely rule in the case by June.

Briefs in the case are available here.

A version of this news article first appeared in The School Law Blog.