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It’s not often you hear something like this said in court:
“Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?”
That question was asked in the highest court in the United States when Justice Sotomayor asked Zackery Morazzini, California’s Supervising Deputy Attorney General about a California law that bans the sale or rental of violent video games to minors.
This week the Supreme Court of the United States listened to the oral arguments in the case of Schwarzenegger v. Entertainment Merchants Association. The Supreme Court is reviewing a California law that targets video games that give the player the option of “killing, maiming, dismembering, or sexually assaulting an image of a human being.” A game is covered by the law if it displays acts that a “reasonable person” would find appeals to “a deviant or morbid interest of minors,” if the content would violate community standards on what minors should see, if the content lacks serious value, and if the player can inflict injury through “torture or serious physical abuse” of a human-like figure.
California was not the first to pass a law attacking video games. These laws have been tested repeatedly in federal courts over the past decade. Every law has been struck down by a lower court as violating the First Amendment right to free speech. That the Supreme Court even agreed to hear the case is a sign that some members of the Court may be willing to accept a restriction. A ruling in favor of the California law will likely have a profound impact on the way video games are designed and distributed.
As a parent, I’m concerned about what my kids watch, play and read. I’m not going to let them play a game that would be covered by the law until I think they are ready. I’m not sure that I need the government to substitute their judgment for my parental judgment. Of course, the government already does that a lot.
It seems that the California law places a burden on video games that is not similarly placed on movies and television. There would be a different outcome for the person who lets a kid go to see a violent Schwarzenegger movie and a person who sells the kid a video game based on that Schwarzenegger movie.
Justice Ginsburg noted:
“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? Or does your principle extend to all deviant, violent material in whatever form?”
Mr. Morazzani’s response shows one of the the problems with the California law. He conceded that it would be perfectly fine to blow Vulcans to into tiny, bloody bits under the law. In a Star Trek video game, they could show Spock dying a violent bloody death, but not not a doomed red shirt. Or could they? How would the law treat a half-human half-Vulcan like Spock?
The Court is also looking at the underlying premise that violent videogames are bad for you. Using the example of Mortal Kombat, Justice Kagan felt sure that “half of the clerks who work for us spend considerable amounts of time in their adolescence playing.” Sadly, Justice Scalia responded with “I don’t know what she’s talking about.”
Then there is the problem of Constitutional dogma. Some Justices base their decisions on a strict interpretation of the Constitution by placing the words in the context of the drafters. This lead to the laughter inducing question of “what James Madison thought about video games.”
The decision should be an interesting mix of law, parenting and geekiness. Expect to hear the decision in a few months.
For you legal geeks:
Transcript of the oral argument in Schwarzenegger v. Entertainment Merchants Association
Brief for Respondents Entertainment Merchants Association and Entertainment Software Association
Image is a work of the United States Federal Government.
