Games, Freedom of Speech, and Schwarzenegger vs. EMA

Without delving into histrionics, November 2, 2010 could be a very important day in the history of video games. Not because that's when the next multi-million selling title is going to be released; no, it's because that is when the case of Schwarzenegger vs. EMA will be heard by the United States Supreme Court.

This case is over California Assembly Bill 1179, a law enacted in October 2005 that has now been challenged all the way up to the Supreme Court. Initiated by California State Senator Leland Yee, the law seeks to prohibit the sale of violent video games to minors. The law reads (link available via mediacoalition.org [PDF]):

1746.1. (a) A person may not sell or rent a video game that has been labeled as a violent video game to a minor.

(b) Proof that a defendant, or his or her employee or agent, demanded, was shown, and reasonably relied upon evidence that a purchaser or renter of a violent video game was not a minor or that the manufacturer failed to label a violent video game as required pursuant to Section 1746.2 shall be an affirmative defense to any action brought pursuant to this title. That evidence may include, but is not limited to, a driver’s license or an identification card issued to the purchaser or renter by a state or by the Armed Forces of the United States.

(c) This section shall not apply if the violent video game is sold or rented to a minor by the minor’s parent, grandparent, aunt, uncle, or legal guardian.

1746.2. Each violent video game that is imported into or distributed in California for retail sale shall be labeled with a solid white “18” outlined in black. The “18” shall have dimensions of no less than 2 inches by 2 inches. The “18” shall be displayed on the front face of the video game package.

1746.3. Any person who violates any provision of this title shall be liable in an amount of up to one thousand dollars ($1,000), or a lesser amount as determined by the court. However, this liability shall not apply to any person who violates those provisions if he or she is employed solely in the capacity of a salesclerk or other, similar position and he or she does not have an ownership interest in the business in which the violation occurred and is not employed as a manager in that business.

In the bill, there is further definition of what constitutes a violent video game to be covered under this California law; moreover, as above, games defined as violent would be required to carry a two-inch square sticker with the number 18 on the front cover. Though the bill passed, it hasn't been enforced due to the legal battle. Since late 2005, the bill has been appealed to the U.S. District Court, the 9th Circuit Court and now the U.S. Supreme Court. The case was brought by the Video Software Dealers Association (now known as the Entertainment Merchants Association), and since its appeal by the state of California to the Supreme Court, a myriad of games and electronics industry groups and corporations have come out in support of the EMA. Again according to legal documents hosted by Media Coalition, the Entertainment Software Association, ACLU, Motion Picture Association of America, Comic Book Legal Defense Fund, First Amendment Coalition, First Amendment Scholars, Microsoft, Activision Blizzard, Id Software, and more have all filed official amicus briefs in support of the EMA.

In deciding against the California bill, the 9th Circuit Court had this to say in its decision:

Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion. Accordingly, we affirm the district court’s grant of summary judgment to Plaintiffs and its denial of the State’s cross-motion.

This is not the first time a law against violent video games has been passed by a state and then, at either the district or federal court level, been denied on the basis of First Amendment rights; however, this is the first time one of these laws has been appealed to the Supreme Court level. This is not the first time a First Amendment question has come before the Supreme Court; far from it. However, as pointed out in a USA Today op-ed, there have been two other First Amendment cases in the court recently, and both have been upheld.

In each of these cases, the argument is consistent: There has not been a strong correlation established between violent video games and violent acts, and how that impacts the development of children. Moreover, courts have repeatedly found that laws singling out violent video games have breached the freedom of speech of the games' developers and publishers. Just for fun, take a look at Game Politics' Google map of video game legislation in the United States and Canada; the black tags are laws that have been ruled unconstitutional. Note that there are also laws in states that mandate the display and explanation of ESRB ratings. An element of a "slippery slope" argument — essentially, where does one draw the line on what is and is not violent content suitable for children — has also been seen in the court findings.

This is a case of great importance not just for the video game industry, but for others in entertainment. Along with the ESRB ratings used by the video game industry, the ratings systems used for movies and music are voluntary, industry-led initiatives — and they are not government-mandated. The worry is that if this California law is upheld by the Supreme Court, then other industries will also fall under the "violent content as obscene" banner, which could have serious repercussions for their businesses. This is why so many groups are supporting the EMA in this court case.

Where can you find more information on this subject? Game Politics is the clearing-house of all things video game and political. If you're a gamer looking to support the video game industry, its group is the Entertainment Software Association; if you're looking to take it to the proverbial streets and support gamers' rights, then look to the Entertainment Consumers' Association.

My expectation is that the California law will be struck down by the Supreme Court. As that USA Today op-ed on the topic mentioned, there is a history of free speech being protected in the U.S. — and if videos of dog-fighting can be protected as non-obscene speech, then there appears to be very strong argument to protect video games. Moreover, the slippery slope is something Supreme Court justices appear to be afraid of; if the Court upholds the California, there is a legal argument to be made against everything from violent movies and comic books to children's books. It may take a leap of logic to find how that's true, but with how the law works in this country, it's plausible. I worked on a 100-plus page research paper on this topic in college, and despite my bias as a gamer, I just don't see how this law can stand.

The one question I can't find an answer to is why the Supreme Court took this case. Clearly, it's the wont of the court to see cases at its discretion, but seeing the other, similar laws struck down nationwide, I don't understand what allows Yee's law to be heard by the courts. Perhaps it's to set the precedent and protect games; I certainly hope that's the case.

We will keep our ears ready for the news about the hearing in the next couple of days; once there's a verdict, expect more discussion and coverage here on Silicon Sasquatch.