Friday, November 5, 2010

Schwarzenegger v. the EMA – Video Games, the Supreme Court, and Common Sense

supreme-courtOscar Wilde.  Superman.  Twisted Sister.  What do they have in common?  All have at one point in time been the focus of public outcries against perceived obscenity.  With every form of entertainment, it seems, comes a backlash against its worth, an attempt to decry the medium for chipping away at the culture’s morality.  Hell, even Plato hated on theatre.

It shouldn’t be surprising then that video games have been thrust onto the public chopping block.  After years of Grand Theft Autos and Dooms and Calls of Duty, the state of California has simply had enough.  They tried to enact a law (AB 1179) strictly prohibiting the sale of violent video games to minors, a law that would make it a punishable crime for any weekends-only GameStop employee to sell Modern Warfare to some sixteen-year-old with a beard.

The Entertainment Software Association and the Video Software Dealers Association promptly sued the state, claiming that the law violated First Amendment rights.  The law was found to be unconstitutional by both the District Court and the Ninth Circuit Court of Appeals – something about it creating “a content-based regulation of protected speech.” 

Unsatisfied with these rulings, California took its bill to the highest rung of the judicial ladder: the United States Supreme Court.  Thus began the case of Gov. Arnold Schwarzenegger v. the Entertainment Merchants Association.

The Arguments

This Tuesday, Zackery P. Morazzini, counsel for Schwarzenegger and the State of California, argued that the Supreme Court should “adopt a rule of law that permits States to restrict minors' ability to purchase deviant, violent video games.”  He equated the most violent of videogames with sexual obscenity, referencing the 1968 case Ginsberg v. New York.  The Ginsberg case ruled that material (girlie mags, in this instance) that is not obscene for adults may still be harmful to children and thus can be regulated.  Supporters of AB1179 believe the gratuitous violent present in some games to be harmful enough to warrant government regulation, and Morazzini based much of his argument on the precedent established  in the Ginsberg case.

Paul M. Smith, on behalf of the EMA, contended that the state of California’s petitioning for a “brand-new Ginsberg-like exception to the First Amendment that would deny constitutional protection to some ill-defined subset of expressive works” - keyword: “ill-defined.”  Smith’s arguments focus heavily on the wide net cast by AB1179 and its slippery definitions of “obscene” violence.  He then asserts that violence is much harder to classify than sexual obscenity, and that we lack sufficient precedent or means by which to do so.  In the EMA’s eyes, until we can all agree on what’s too much, we can’t properly pass any laws.

The Proceedings

breyer common senseIf I had time, I would read Supreme Court transcripts all day.  This stuff can be hilarious.  When Justice Stephen Breyer asked rhetorically, “I mean, what’s the difference between sex and violence?” and Smith began to say “There is a huge difference,” Breyer quipped, “Thank you.  I understand that.”  There was also the inadvertently funny, Internet-like syntax of Breyer’s statement to Smith: “You are away from the common sense.”  And let’s not forget the time Justice Sonia Sotomayor asked Morazzini if we should “outlaw Bugs Bunny.”

It wasn’t all fun and games, however.  The Court grilled each counselor mercilessly.  Morazzini, specifically, seemed to have a difficult time meeting the demands of the justices’ questioning.  He was basically saved at one point when Justice Antonin Scalia interrupted Sotomayor’s questions about why the state seemingly weakened their case by not appealing every single aspect of the appellate court’s ruling. 

Smith had to contend with the Court’s overall lack of experience with the medium.  At one point, Justice Elena Kagan referred to video games as “the modern-day equivalent of Monopoly sets.”  Many of the justices simply called them “videos.”  Smith had trouble imparting to some of the justices the sophistication of today’s videogames – their plots, their artistic merits, etc.  Of course, he can’t deny that many of these games also feature ample opportunities for headshots.  So he avoided that topic when possible, sticking as close as possible to the EMA’s stance on AB1179.

Also, everyone (excluding Smith, of course) kept referencing Postal 2, one of the most disgustingly violent games ever created, as if it pertained to the industry at large.  Yes, it sold some copies.  But since it’s release seven years ago, it’s become more of an industry in-joke than any kind of landmark title.

The Impact

The Supreme Court won’t rule on this case for a few months.  So we won’t really know how this will all shake out until then.  However, it is safe to assume it could affect the industry greatly.

California State Senator Leland Yee, one of the folks behind AB1179, issued a statement after Tuesday’s hearings, saying he was pleased with the proceedings, specifically with Justice Breyer.  Delaware Representative Helene Keeley’s ready to follow California’s example should the Court rule in the its favor.

Should the Court rule in favor of the state, there’s a chance it sets a precedent for further regulation of content, which some (including myself) would assuredly view as an infringement of First Amendment rights.  Jennifer Mercurio, vice president and general counsel for the Electronic Consumers Association, told Joystiq that we could “see game developers censoring themselves in the creative process” and publishers, being particularly gun-shy about violent titles, passing off the extra cost of marketing or selective distribution to retailers and consumers.  Mercurio also predicts that this ruling, should it fall in favor of the EMA, will not stop Senator Lee from continuing to pursue the restriction of violent game sales.

Closing Arguments (Here’s Where I Editorialize A Bit)

I’m not a lawyer, nor did I personally attend the hearings.  All of my information has come from the official court transcript and coverage from the sites I’ve linked (among others).  But my initial impression is that the Court could very well rule on the side of the EMA.

While the justices (particularly Justice Breyer) did pick apart some of Smith’s finer objections to the California law, they seemed much more critical of Morazzini’s support for it.  Justices Scalia and Alito, in particular, asked nitpicky questions about the law’s definition of violence, as well as the bill’s iffy relationship with the First Amendment’s protection of free speech.

Furthermore, the law’s already been struck down twice in the lower levels of the justice system.  While it’s certainly not unheard of that the Court would overturn such rulings, the precedent they set can be persuasive, especially if the state fails to provide new evidence to support their petition.

If the Court sides with the EMA, it will be a victory for common sense.  Protecting children is a good idea.  But that’s what parents are for.  That’s what the ESRB rating system is for.  If you want to pass laws that make it easier to educate people about how the system works and how parents can be involved, I’m all for it.  Just don’t try to set a dangerous precedent of encroaching upon free speech and then tell me it’s a valid substitute for responsible child-rearing.

Some of the stuff I read to write this article: the official transcript of Tuesday’s oral arguments, Eric Neigher’s awesome breakdown of the transcript over at GameSpy, several GamePolitics articles, Joystiq, the New York Times, and much more.