Why Today's Supreme Court Decision Was Important

By Jonathan Barnes, 7 years ago
Today’s landmark decision in favor of the Electronic Merchants Association by the United States Supreme Court is very important. Unfortunately, as with most things concerning the law, such decisions can be dense and hard to understand for the lay person. For those reasons, we felt it was important to do a brief piece to explain why this decision was so epically important for the future of games and free speech, not only in the United States, but abroad.

Let’s start with the basics; what California’s proposed law (California Civil Code sections 1746-1746.5) WOULD have done had it stayed in effect:

1- The law would have made it illegal to sell a “violent video game” to minors and make offenders (the retailers, primarily management) pay a $1,000 fine per sale.

2- The law defined “violent video game” as the following:

"Violent video game" means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following: Comes within all of the following descriptions:

(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.

(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors. (iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.
Now I know some of you might immediately be polarized by this. Some TA members who are currently “minors” as defined by the State might object to this simply because they want to continue playing “M” rated games.

On the other hand, some of you might be very much in favor of this law, since it aims to keep “violent video games” out of the hands of minors, perhaps with the goal of cleaning up Xbox LIVE a bit.

While both of those are valid concerns, the main issue presented to the Supreme Court was one of free speech and whether or not video games are entitled to the same 1st Amendment protections as other forms of media (books, magazines, movies, music, etc.). In essence, this law would have put video games on another level and thrown them into a more lascivious group with age-controlled substances like alcohol, tobacco and pornography.

Even then, some of you might think that this is OK. We DO want to keep “violent video games” out of the hands of minds that are ill-fit to process them and deal with them… at least we HOPE that parents do, but, for a moment, let’s look at the quote-unquote “Doomsday Scenario” that the EMA presented.

1- Retailers are fined for selling “violent video games” to minors.

2- Retailers, in the hope to avoid even the threat of potential fines, stop stocking “violent video games”.

3- The sale of “violent video games” decreases due to lack of retail space and opportunity for purchase.

4- Developers/Publishers lose money on “violent video games”.

5- Developers/Publishers stop making or severely cut back on the development and production of “violent video games”.

6- “Violent video games” are so drastically cut back that they become close to unavailable.

If you think that this is far-fetched, ask yourself this, how often do you see hardcore pornography on the shelves in “general” stores?

Gamers outside of the United States would not be exempt from this crunch as well. Just think about how many Developers/Publishers are based in the U.S. and how many copies of those games sell here. Do you think that those Developers and Publishers would continue to make “violent video games” if they couldn’t sell them in their home country? Of course not. Not only is the United States one of the biggest producers of electronic media, it is also one of the biggest consumers.

Now, granted, this was a “Doomsday Scenario”, but it would have easily been within the realm of possibility, especially with business guys like Bobby Kotick and John Riccitiello at the helm of major publishers who tend to focus on the bottom line.

A few American gamers have also wondered why this would matter to them, since they may not even live in California. This law was being closely observed by “media watchdogs” all over the nation (Hello, Jack Thompson!) and, if it had passed, would have enabled more states to pass (or attempt to pass) similarly worded legislation. In essence, even if you don’t live in California, this law could have been coming to a state near you.

At the end of the day, however, the Supreme Court ruled against California’s law with a landslide 7-2 ruling. Contained in the main ruling was a section by Justice Antonin Scalia that I felt perfectly described why singling out video games above other forms of media is unfair:

Writer’s note: The following excerpts have been slightly edited to improve readability, mainly the removing of specific page citations etc. I HIGHLY suggest that you read the full decision here.

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.
Finally, the following excerpt explains why the proposed law oversteps its Constitutional reach:

The Act is also seriously underinclusive in another respect—and a respect that renders irrelevant the contentions of the concurrence and the dissents that video games are qualitatively different from other portrayals of violence. The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it’s OK. And there are not even any requirements as to how this parental or avuncular relationship is to be verified; apparently the child’s or putative parent’s, aunt’s, or uncle’s say-so suffices. That is not how one addresses a serious social problem.

California claims that the Act is justified in aid of parental authority: By requiring that the purchase of violent video games can be made only by adults, the Act ensures that parents can decide what games are appropriate. At the outset, we note our doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority. Accepting that position would largely vitiate the rule that “only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to [minors].”

But leaving that aside, California cannot show that the Act’s restrictions meet a substantial need of parents who wish to restrict their children’s access to violent video games but cannot do so. The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games. The system, implemented by the Entertainment Software Rating Board(ESRB), assigns age-specific ratings to each video game submitted: EC (Early Childhood); E (Everyone); E10+ (Everyone 10 and older); T (Teens); M (17 and older); and AO (Adults Only—18 and older). The Video Software Dealers Association encourages retailers to prominently display information about the ESRB system in their stores; to refrain from renting or selling adults only games to minors; and to rent or sell “M” rated games to minors only with parental consent.
The most impressive part of this section is that it goes on to state a Federal Trade Commission filing to Congress that shows “the video game industry outpaces the movie and music industries” in “(1) restricting target marketing of mature-rated products to children; (2) clearly and prominently disclosing rating information; and (3) restricting children’s access to mature-rated products at retail.”

In short, the court agreed that the games industry succeeds as a self-regulated watchdog of content and that its advisory system works better than any other form of media.

In conclusion, I think we can all agree that we don’t want people who are “ill-equipped” to handle “mature content” playing “M” rated games. We all wish that there was a better way to ensure that video games were only in the hands of people who are mentally and emotionally prepared to play them, regardless of age.

In this writer’s opinion, that power is not something for the government to legislate with a broad stroke, rather it is a discussion and decision best left in the hands of parents/caretakers. Today’s ruling has ensured that such choices are not left to the State, but rather placed in the hands of people who (should) know best: adults.
Jonathan Barnes
Written by Jonathan Barnes
Jonathan has been a news/views contributor since 2010. When he's not writing reviews, features, and opinion pieces, he spends his days working as an informal science educator and his nights as an international man of mystery.