Last Tuesday, November 2, the Supreme Court heard oral arguments in the case Schwarzenegger v. Entertainment Merchants Association, questioning the constitutionality of a California ban on the sale of violent video games to minors. The First Amendment’s guarantee of free speech figured prominently in the debate as the state of California sought to overturn the permanent injunction that bars the law from taking effect. The injunction is the result of a successful challenge to the law brought by the video game industry in 2005 and later upheld in the 9th Circuit.
Two questions are before the Supreme Court: (1) whether the First Amendment bars a state from restricting the sale of violent video games to minors, and (2) under a strict scrutiny standard of review, must a state, before prohibiting the sale of games to minors, demonstrate a direct causal link between violent video games and physical and psychological harm to minors? This post focuses on the first question.
Provisions of the California Law
The California law prohibits the sale of violent video games to a minor, defined as any person less than 18 years of age. Violators are liable up to $1,000. The law further requires violent video games in California to be labeled with an “18” sized at least two inches square on the front of the package.
The law defines violent video games as those games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being,” if the depiction of such acts (1)(a) “appeals to a deviant or morbid interest of minors,” (b) is patently offensive to community standards for content suitable for minors, and (c) causes the game “to lack serious literary, artistic, political, or scientific value for minors,” or (2) if the depiction entails virtual infliction of serious injury to human-like characters in a manner that is “especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.”
Why the Ban?
Setting characters on fire; shooting and dismembering them; playing fetch with a dog and dismembered body parts. These are some of the options available in Postal 2, a video game that has become emblematic of extreme gaming violence. Indeed, Postal 2 was mentioned more than once during oral arguments as an example of a game whose sale would be regulated under the California ban. But what pushed California to regulate violent video games?
The main rationale for the ban was, and continues to be, the prevention of psychological harm to children. Indeed, California State Senator Leland Yee, who holds a doctorate in Child Psychology, authored the law. The legislative history shows that when proposing the bill, Yee cited psychological studies on the issue and highlighted the greater impressionability of children. However, the 9th Circuit, pointing out flaws in methodology of the studies and establishment of correlation but not causation, held that “the evidence presented by the State [did] not support the Legislature’s purported interest in preventing psychological or neurological harm.” Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 964 (9th Cir. 2009).
Proponents of the law also maintain that industry self-regulation is unsuccessful. This criticism refers to the Entertainment Software Rating Board (ESRB), an organization formed by a video game industry trade organization, to rate games and enforce advertising guidelines. The law’s supporters argue that the voluntary rating system is insufficient. When the bill was drafted, Senator Yee cited statistics from a Federal Trade Commission (FTC) July 2004 report, “Marketing Violent Entertainment to Children,” to illustrate that the ESRB system was not perfect in stopping sales of adult-rated games to minors. For instance, the study reported that in a mystery shopping test 69% of minors were able to purchase M-rated (mature) games.
However, opponents of the ban reference the same FTC series of studies to demonstrate the overall effectiveness of the voluntary rating system. The FTC recognizes that the video game industry’s self-regulatory code surpasses both the movie and music industries’ codes in preventing minors from obtaining adult-rated content. Even more, the studies show that the ESRB system has increased in effectiveness over the past decade. The latest FTC follow-up report, released in December 2009, found that video game retailers sold M-rated games to only 20% of minors. This figure is down from 85% in 2000.
The First Amendment: “Congress shall make no law…abridging the freedom of speech.”
At oral arguments the Justices grappled with the application of the First Amendment. Should exceptions be made for violent video games? In an effort to resolve the question affirmatively, the state of California drew parallels to obscenity regulations. The Court previously has asserted, “Obscenity is not within the area of protected speech or press.” Ginsberg v. New York, 390 U.S. 629, 635 (1968). In Ginsburg the Court upheld a New York law that forbade the sale to minors of obscene materials, defined as materials depicting nudity. It reaffirmed that “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.” Id. at 639, quoting Prince v. Massachusetts, 321 U.S. 158, 170 (1944).
Nevertheless, carving out an exception to the First Amendment for violent video games would be a novel extension of First Amendment doctrine. Justice Scalia split with the other conservative Justices on this issue, voicing concern that the American people never understood the First Amendment to apply as such. He stated, “[I]t was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence.” Justice Alito rejected this historical analysis on the grounds that video games are a new medium.
The Justices and attorneys employed other analogies to help clarify the ambit of the First Amendment. Justice Ginsburg inquired as to why the law stopped at video games, leaving other media such as comic books and films unaddressed. The response from the state of California was that greater harm comes from the interactive nature of videogames, where the player carries out the violent acts as opposed to observing them passively.
Justice Sotomayor asked how this case differs from United States v. Stevens, decided this past April, in which the Court, applying the First Amendment, struck down a federal law making it a crime to sell videos depicting animal cruelty, including dogfights. In that case the Court declined to recognize a new category of speech outside of First Amendment protection. Sotomayor, referring to the decision in Stevens, recalled that the Court, when addressing regulations of speech, does not analyze a category of speech for potential low value but instead looks to a tradition of regulation. As Scalia pointed out, there is no tradition of regulating portrayals of violence.
In light of the principles recently espoused in Stevens, the Supreme Court is unlikely to create an exception to the First Amendment that allows regulation of depictions of violence. Indeed, the state of California does not request such a categorical exclusion. Instead, California argues that for minors only, violent video games should not be granted First Amendment protection. The possibility of such an exception is not automatically foreclosed. The Court voted to hear this case after handing down the decision in Stevens, the timing of which suggests that Stevens will not be immediately dispositive in the case sub judice. Because the Court has previously recognized different standards for regulating the conduct of children, it is not unforeseeable that the Court might elect to carve out a First Amendment exception for speech as it reaches children. Nevertheless, as exemplified by Ginsburg, past regulations of speech that applied to minors dealt with obscenity, an already unprotected category of speech. Even if it were restricted to its influence on minors, a ban on depictions of violence would be a new regulation on formerly free speech.
A Quick Note on Strict Scrutiny of the California Law
If the Court does not create an exception to the First Amendment, the California law, because it infringes on a fundamental right, must be examined under strict scrutiny. To satisfy this standard of review, California must demonstrate that the law is narrowly tailored to achieving a compelling government interest.
California’s stated objective is to protect the physical and psychological welfare of minors, as well as their ethical and moral development. The 9th Circuit, however, was unconvinced by California’s evidence that there was a material harm for the state to address.
Also at issue is the means California employed to address the alleged harm. Assuming a compelling government interest exists, opponents of the law argue that it is not the least restrictive means of addressing the sale of violent video games to minors and therefore not narrowly tailored. They point to success of the ESRB self-regulatory system, as well as parental controls that serve to restrict minors’ access to violent content. So long as less restrictive means of achieving California’s objective are identified, the law is unlikely to pass strict scrutiny.
The Final Stage
As advances in video game graphics enabled increasingly realistic depictions of human-like characters and worlds like our own, the critics of violent video games became more numerous and more outspoken. California is not alone in attempting to regulate the sale of violent video games to minors. Similar laws were passed in Illinois, Michigan, and Washington, as well as the cities of Indianapolis, Indiana and St. Louis, Missouri, although the courts have struck down these laws as violations of the First Amendment. Now that the Supreme Court has taken up the issue, we must ask ourselves — have we reached the final stage?