In a 7-2 decision yesterday, the Supreme Court ruled that a California law restricting the sale of violent videogames to minors violated the First Amendment. The Court’s ruling on Brown v. Entertainment Merchants Association upheld a previous decision by a federal appeals court and deemed California’s ban on violent game sales unconstitutional.
By extension, videogames are now officially protected as free speech. From the syllabus of the Court Opinion:
“Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And “the basic principles of freedom of speech . . . do not vary” with a new and different communication medium.”
It’s a major step forward for a nascent form of expression, but before we commence the hoot-n-hollering, let’s dig a bit deeper.
Revisiting Brown v. EMA
Brown v. EMA wasn’t always called Brown vs. EMA. Called Schwarzenegger v. EMA when the Supreme Court heard the case last November, it’d since been changed to incorporate California’s new governor Jerry Brown. If Schwarzenegger v. EMA hadn’t been such a great name (and not a bad – albeit vague – title for a SyFy action flick), it might have been dubbed simply The State of California v. EMA.
The case concerned a 2005 California law (AB1179) that would not allow anyone to “sell or rent a videogame that has been labeled as a violent videogame to a minor.” “Violent videogames” would be ones “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being.”
Though the law passed, it was never enforced. Lower courts declared the law unconstitutional (just as similar bans were dismissed in several other states), and the state and its lawyers appealed and appealed and appealed until the case reached the Supreme Court.
The EMA, the Entertainment Merchants Association, fought to prove that AB1179’s definitions and restrictions did not pass strict scrutiny. Studies linking videogames with aggressive behavior do not provide conclusive evidence. The term “obscenity” (a precedent set in the case Ginsberg v. New York) cannot be applied to violence in the exact same manner with which it’s applied to pornography (that’s comparing gun-toting apples to painfully curvaceous oranges). The EMA called AB1179 “ill-defined” and sang that refrain as loudly and as often as possible.
The Supreme Court’s Opinion (you can read the full document here) declared the law unconstitutional and that videogames are protected speech. Justices Scalia, Kennedy, Kagan, Roberts, Sotomayor, Ginsburg, and Roberts formed the majority. Justices Thomas and Bryer dissented.
In the second section of the Opinion’s syllabus, the Court agreed with the EMA that California’s law did not pass strict scrutiny:
“Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint.”
That third sentence raises an interesting point. Had California declared itself the No Violence State and banned all potentially harmful content from consumption by children (a gutsy move for a state who elected the Terminator as governor), perhaps they would’ve had a leg to stand on.
The syllabus also praises the industry’s voluntary Entertainment Software Rating Board, adding that a California sanction would not improve upon the system already in place and may actually prove “overinclusive, since not all of the children who are prohibited from purchasing violent video games have parents who disapprove of their doing so.”
The Opinion, written by Justice Scalia, not only picks apart California’s argument and their plans for regulation, it also takes time to validate videogames as an artistic medium. I thought the whole “Games as Art” thing was finished when the Smithsonian got involved, but now it’s definitely over.
Amidst discussion over children’s exposure to violence throughout history, Scalia addresses California’s claim that videogame violence deserves special treatment because it is interactive. The Court finds this claim to be bogus. “As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind,” writes Scalia. “All literature is interactive.” He continues with a passage from the case American Amusement Machine Assocation v. Kendrick:
“[T]he better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”
Kudos to you, Scalia, you’ve summarized every argument ever made by anyone trying to say that games can be more than abstract puzzles or timed skill challenges (myself included).
The Court, for all its dismissal of California’s shoddy, overinclusive law, did not dismiss the state’s view that interactive violence could be harmful to children. It commended the legislation in question for “addressing a serious social problem” and “helping concerned parents control their children.” Comments from the concurring Justice Alito allowed for the possibility of revisiting this issue again, writing, “"I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem.”
However, Alito, like the rest of agreeing Justices, believe that the Court’s job is not to judge the state’s aims, only the law brought before them. “Even when the protection of children is the object,” writes Scalia in the Opinion, “the constitutional limits on governmental action still apply.”
Expectedly, the videogame industry is jumping for joy. Forumgoers fearing that a ruling in favor of California would lead to Australia-like restrictions on games can rest easy knowing they can freely spend their $60 on whatever violent garbage they want. Press needn’t fear covering games that can’t be sold, and publishers needn’t fear shipping games that can’t be bought.
It’s easy, for a fan of videogames, to see this case boil down to “Ban Bad! Games Good!” It’s more than that. More was at stake, and more will continue to be at stake.
In an inspired follow-up to the case by Kotaku that collected reactions from a number of developers, BioShock creator and creative head of Irrational Games Ken Levine articulated the dark tangled path down which AB1179 might have led:
“It could have effectively made ALL games M-rated games, because publishers would have been rightly nervous about "under-labeling" their titles and facing the wrath of the state[…]
This in turn would have discouraged the industry developing content for non-adults. Why bother, if you're just going to have to label it in a way which means it can't be sold to them? This would have the net effect of the industry under-serving children.”
Levine then warns that games’ newly-protected freedom of expression cannot go wasted. “We as creators will choose our words with respect, understanding their power,” he writes. “But no law will have the authority to choose them for us.”
This seconds a sentiment I saw expressed on Twitter by writer and producer John Teti, the self-proclaimed World’s Most Tie-Wearing Games Writer. Today he tweeted, “OK, video-game industry, it's confirmed that you have free speech. Now use it to say something.”
Suffice to say proponents of the rejected bill are upset. California Senator Leland Yee, an advocate for and author of AB1179, told the Associated Press, “It's disappointing the court didn't understand just how violent these games are,” and that he was examining the dissents for satisfactory ways to reintroduce the bill. Tim Winter of the Parents Television Council told the AP, “It's certainly concerning to us that something as simple as requiring a parental oversight to purchase an adult product has been undermined by the court.”
Court Is Adjourned
This is a major victory for games and their supporters. No matter how violent the stupidest shooter is, interactive entertainment still possesses immense creative potential. California’s law could have started us down a slippery slope that would, as Ken Levine says, cripple the market as well as developer creativity. Is the current system, the ESRB, perfect? No, but it does work – as well as any voluntary ratings system works. Even Senator Yee admitted in his press conference that the case’s high profile could only help awareness of the issues at hand.
It’s encouraging that already bright minds like Levine are pushing everyone to see this opportunity as a valuable stepping stone rather than accept it as a finished battle: our team wins, game over, etc. Senator Yee and Tim Winters won’t stop, because at the end of the day their mission - protecting children – isn’t an awful one. They just wrote a bad bill, one too eager to censor first and ask questions later (or not at all). They wrote a bill and defended it until the most powerful judges in the country struck it down. That’s tenacity.
Validation by the Supreme Court should not be taken lightly. The Court opened and closed with a Free Speech salvo. They invited a decades-old medium born in computer labs and arcades to sit at the adult table with forms of expression dating back centuries. Let’s try not to eat with our hands, okay?