US Supreme Court Hears Oral Arguments in CA Violent Game Regulation Case

US Supreme Court Hears Oral Arguments in CA Violent Game Regulation Case

by November 2, 2010

Should Violent Games Be Exempt from 1st Amendment Protection?

Justices of the US Supreme Court heard oral arguments from both sides today on a case concerning the Constitutionality of a California law banning the sale of “violent” video games to minors.

The justices heard arguments and asked questions of California deputy attorney general Zackery Morazzini and Entertainment Merchants Association attorney Paul Smith in the matter of Schwarzenegger vs. Entertainment Merchants Association, Case 08-1448, a now five year endeavor.

The justices, among other things, questioned Morazzini on how far California’s action could theoretically extend to other media, such as movies or books.

“Suppose a new study suggested that movies were just as violent. Then, presumably, California could regulate movies just as it could regulate video games?” Justice Elena Kagan asked of Morazzini.

“How is this any different than what we said we don’t do in the First Amendment field [….], where we said we don’t look at a category of speech and decide that some of it has low value?” asked Justice Sonia Sotomayor.  “We decide whether a category of speech has a historical tradition of being regulated.”

When Justice Sotomayor asked if the California law opened the door to banning rap music, as an example, Morazzini said:

I’m not sure initially that it’s directly harmful to the development of minors in the way that we know that violent video games can be. We know that violent material, like sexual material, appeals to a base instinct in especially minors.

Smith wasn’t immune to the tough questions, either.  Justice Stephen Breyer argued common sense–that a 13 year old can’t buy pictures of naked women, yet a child in California would still be able to buy a violent game if held unconstitutional, to which Smith responds:

Well, there is various aspects of this that I think it’s important to understand. First of all, violence has been a feature of works that we create for children and encouraged them to watch throughout the history of this country. [….] the difference is we do not make films for children in which explicit sex happens. We do make films for children in which graphic violence happens.

When justice Samuel Alito proposed the ramifications of a CA law of attaching a “civil penalty” to any sale of a “mature” labeled game by the ESRB to minors, Smith said:

What that would do is transform the ESRB, the private voluntary system that exists, into the censorship commission that this Court struck down in Interstate Circuit. When the government does that and you have to go to them for permission to allow kids into the movies or to play this game, it is a prior restraint. You have way too much discretion. It’s a licensing authority that the First Amendment doesn’t allow.

There were more juicier statements made as part of the argument–Justice Kagan, for example, quipped half the clerks for the court may have played Mortal Kombat “in their adolescence.”  If you wish, the Supreme Court made available the complete transcript of arguments from this morning for review.  There’s a lot of legalese in it, but know the court has not made a decision on the constitutionality of California’s law yet, and won’t for a while.  When it does, the impact will be felt across the US gaming industry, on anything from how games are rated to how they are made.  We will pass along the decision once made.