The U.S. Supreme Court heard oral arguments Tuesday in a First Amendment battleground case testing whether a California law banning the sale or rental of violent video games to minors falls within the realm of unprotected speech and, if not, whether the harm California seeks to avoid is compelling enough to survive a constitutional challenge.
The justices aggressively questioned both sides in Schwarzenegger v. Entertainment Merchants Association as they struggled to decide if the government can regulate children’s access to violent video games, and if, like obscenity, violence can also be considered unprotected speech. The petitioners based their argument off the Supreme Court’s 1968 Ginsberg v. New York decision, in which the court ruled that the federal government can restrict sexually explicit materials from minors — begging the justices to deal with the question of how different sexual and violent content are for minors.
The Supreme Court has been wary of creating new categories of unprotected speech, particularly after it struck down earlier this year a law that prohibited depicting animal cruelty in any form in United States v. Stevens.
California Gov. Arnold Schwarzenegger signed Assembly Bill 1179 into law on Oct. 7, 2005. The law restricted the sale or rental of violent video games to minors under age 18 and includes up to a $1,000 penalty per violation. The law does not prohibit parents from buying violent games for their children.
Before the law took effect, the Entertainment Merchants Association filed suit, arguing that the law violates the First Amendment and is unconstitutionally vague.
A federal district court ruled the law violates the First Amendment and granted summary judgment, which was affirmed by the U.S. Court of Appeals in San Francisco (9th Cir.). California officials then petitioned the Supreme Court for review, which was granted.
The state argued that the law aids parents in restricting children’s access to violence, thus preventing “violent, aggressive and anti-social behavior” and “psychological or neurological harm.” The state relied on social science studies showing a correlation between violent video games and aggressive behavior, including a “reduction of activity in the front lobes of the brain,” according to its brief.
During the arguments, the judges questioned Zackery Morazzini, a California supervising deputy attorney general who represented the state, as to what constitutes violent video games, and how to draw the line between violent games and violent movies, books, music and other media.
Justice Antonin Scalia led the charge, first asking what “deviant, violent” video games are.
“What’s the difference? I mean, if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm’s fairy tales? Why are video games special?" Scalia asked.
Justice Sonia Sotomayor also wondered how to draw the line, asking if Bugs Bunny should be outlawed too. The judges pressed Morazzini about opening up an entirely new issue in which there is no historical precedent, unlike the societal expectations for sexually explicit material for minors.
“You are asking us to create a whole new prohibition which the American people never, never ratified when they ratified the First Amendment. They knew . . . obscenity was bad, but what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children? Will that affect them?” Scalia said.
Morazzini said he hoped the law would simply pressure manufacturers and distributors to self-censor.
The judges were no less relentless on the respondents, the Entertainment Merchants Association, represented by attorney Paul Smith. Smith argued that California is trying to get a “free pass, a brand-new Ginsberg-like exception to the First Amendment,” that poorly defines the criteria for violence and includes movies, books and other work. He said parents have many options in restricting violent video games, such as the ratings system and parental controls.
“Your honor, my main ground today is exactly that, that this Court said last year in United States v. Stevens it doesn’t have a freewheeling authority to create new exceptions to the First Amendment after 200 years based on a cost-benefit analysis, and this is a test of that. This is exactly what the state of California is asking you to do,” Smith said.
Chief Justice John Roberts asked how the distinction between movies and video games is relevant, noting that a child is actively killing in video games versus passively watching in movies. Justice Stephen Breyer also suggested that parents may need additional help from the government, as many parents aren’t home when children come home from school.
Breyer also questioned why the violence in these video games should be afforded more constitutional protection than sexually explicit material. Roberts read a district court description of the violence included in a game: “pour gasoline on them, set them on fire and urinate on them. . . . We protect children from that. We don’t actively expose them to that.”
Bob Corn-Revere, who helped draft one of the friend-of-the-court briefs supporting the respondent, said the court felt some discomfort in the suggestion that nothing can be done to protect minors from violent material if the law violates the First Amendment.
“I think the court is clearly struggling with the question with the extent to which the government can regulate in this area,” he said.
Outside, protestors, some dressed like Mario and Luigi from the series of Nintendo video games, gathered below the steps of the Supreme Court holding signs like “Don’t Censor Me!” and “First Amendment, I Choose You!”
Ian Lutz, a 15-year-old from Vienna, Va., who came to show support for gamers, plays the M-rated video game Metal Gear Solid. He said studies show violent video games don't make players any more aggressive unless they already are violent. Lutz said the law is a shame and wondered why video games specifically are being attacked as opposed to violent movies.
“What’s so different about them? What makes them the target?” Lutz said.
The gamers’ support was reinforced by the 27 friend-of-the-court briefs, including one by the Reporters Committee for Freedom of the Press, submitted in support of striking down the law. Four friend-of-the-court briefs were submitted on California's side.