Supreme Court Grapples With Violent Video Game Law

The U.S. Supreme Court heard oral arguments Tuesday in Schwarzenegger v. Entertainment Merchants Association — a case stemming from a 2005 law passed in California that forbids the sale or rental of violent video games to minors.

Lower courts subsequently struck down the law, pointing to precedent that establishes the government’s ability to restrict only the sale of obscene content to minors.

As with any case that goes before the Supreme Court, this one has multiple implications, and its ruling could result in a spate of marching orders for federal, state and local legislatures.

The case touches upon whether video games should be considered free speech — and therefore allowed full protection under the First Amendment. By extension, if video games are not afforded those protections, what would that say about other forms of multimedia content?

The case also has implications for local jurisdictions and their ability to craft community standards protecting against obscenity. California legislators tried to skirt a First Amendment tussle by linking the violence to obscenity, a category that has traditionally been regulated. Indeed, that link appeared to resonate with at least some of the justices.

A minor “can’t buy a picture of a naked woman” but can buy a game depicting “gratuitous torture of children,” noted Justice Stephen Breyer. “Now what sense is there to that?”

New Exception

Upholding the law would require carving out a new exception in the First Amendment — assuming video games are deemed to be protected under the First Amendment, Raymond Ku, a law professor at Case Western Reserve University School of Law, told the E-Commerce Times.

The same issue arose last term in a case over videos depicting cruelty to animals, he said.

There are parallels to other cases, as well. California is arguing that there is an empirical link between violent video games and the antisocial behavior of children. However, in cases involving virtual depictions of child pornography, noted Ku, the Supreme Court concluded that the evidence linking virtual child porn with actual instances of pedophilia was not sufficient.

“This case could be another opportunity for the court to look at those questions,” he said.

It is possible the justices could conclude that if the law were more narrowly tailored it would meet Constitutional muster, Earl Mellott of Foley Hoag’s video games and interactive media practice, told the E-Commerce Times.

“You could see that in some of the questions about other ways the state might have in dealing with this issue,” Mellott said.

Not Upheld

It’s unlikely the Supreme Court will overturn the lower courts’ decisions and uphold the law, said both Mellott and Ku.

What will be telling, though, is how the court crafts its response. Will it determine that video games fall under First Amendment protection? Did it decide to review the case in the first place simply to reject the notion that violence is akin to obscenity and thus subject to regulation?

“It is conceivable they could say that a more narrowly tailored law might be acceptable and thus the cycle starts anew,” Mellott said.

Gaming Culture and the Supreme Court

One thing that was apparent in the justices’ questions — which occasionally offered a bit of comic relief, Mellott noted — was that some of the justices were not up on the latest in gaming culture and titles.

When Justice Elena Kagan sparred with the California AG about “Mortal Kombat,” Justice Antonin Scalia interjected that he didn’t have any idea what they were talking about.

Some of the justices also illustrated their not-so-current grasp of consumer technology. For example, when Justice Anthony Kennedy asked why V-chips couldn’t solve the problem, he was told, “Those are for television.”

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