Supreme Court Kombat: Governator v. Video Games

**This is FrankieGhoststar’s blog, he just couldn’t post it so I posted for him!!****

*Schwarzenegger is replaced by California because California is so much easier to spell.*

Constitutional and Statutory Provisions Applied

The First Amendment to the United States Constitution provides, in relevant part: “Congress shall make no law . . . abridging the freedom of speech.”  This provision applies to the states through the due process clause of the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666 (1925).  California Civil Code sections 1746-1746.5  (the Act) prohibit the sale or rental of “violent video games” to minors under 18.

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.

The State of California asks for the Supreme Court’s help in determining if their law is unconstitutional. The two questions presented to the Court by the Petitioners (Governor of California):

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?

2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 666 (1994), is the State required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the State can prohibit the sale of the games to minors?

So, what types of video games does California’s Act attempt to regulate?

California gives examples of such video games that depict extreme violence and inhumane acts. For example, one video game allegedly has a woman beg for her life only to be decapitated by a shovel. In some instances, a player can shoot a person in the kneecap and while they try to crawl away, the player can elect to pour gasoline on the person and light them on fire. According to California, while doing these types of acts the main character will make inhumane comments such an example is when the player decides to urinate on a dying person only to hear the character state, “Now the Flowers will grow.” (Who knew video game showers, bring video game flowers)

Summary of California’s Argument

California argues that the First Amendment should not apply to protect the video games they seek to limit minors from purchasing because the Ginsberg standard should be applied. They also argue the act promotes parental authority to protect their children because parents can’t always be there to make sure their minor child’s not buying a video game they don’t approve. The argument also indicates that Free Expression for adults can be distinguished based on the purchaser being a minor. California also argues that the First Amendment doesn’t require a direct and causal link between violence in video games and direct harm to minors. Finally, California argues the Act is the least restrictive means of accomplishing the State’s interest.

The Petitioner’s first argument is that the First Amendment shouldn’t extend to minors in certain limited situations because it should fall under the Ginsberg Standard. The Ginsberg standard is that laws will be upheld as long as the government can show that it was not irrational for the Legislature to determine that video games regulated by the act are harmful to minors. Basically, California argues for a rational basis review instead of a strict scrutiny review.

The first reason for shifting the level of scrutiny is that constitutional readings have consistently held the parents claim in child rearing is an important and key part of our social structure; and the State’s independent interest in the well being of its youths. California argues that even though the Ginsberg standard is based on sexual content, the offensiveness of the violence depicted in the video games they hope to monitor encompasses the same concerns as the sexual content. The argument is based on the indication that neither the explicitly sexual content nor the offensively violent behavior promote society’s interests while creating a psychological harm to our minors.

Second, California points out that more than 20% of minors were able to purchase video games rated “mature” or higher, which means they were not supposed to be sold to minors. California would prefer that the laws be made so that parents or guardians can purchase video games for minors but not minors. They believe by rendering fines on video game sellers that this will limit the purchase of violent video games by minors. California also argues it has a state interest in promoting and helping parents monitor their children’s intake of violence.

Third, California believes that Free Speech can be regulated by the government when it involves minors instead of adults. As they point out, Tinker and its progeny already allow state run schools to limit students free speech when that speech is a deterrent to the promotion of state interests. Notably, “The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially acceptable behavior.” Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986). This argument makes sense as allowing state run schools to limit students and not be in violation of First Amendment rights yet not allowing states to limit what their minors can purchase would seem to be placing the horse before the cart. It would seem counter-intuitive to allow government funded entities to have Free Speech exceptions but not the government that funds those entities.

Fourth, California argues that forcing them to show a direct and causal link is inappropriate. As California points out, with violence in movies and books, the only way a scientific study could truly show a causal and direct link would be to remove minors from their everyday lives and make them play violent video games while not exposing them to any other medium that may allow them to develop violent harms. This type of study is clearly not feasible. However, other studies that are the best way to research the effects have shown a link in playing video games and being more violent. For example, one study had a group of students play non violent games and the other play violent games. The students were then asked to create the word by filling in the missing letter. The word was “explo_e”. The non violent video game players were more likely to complete the word by making “explore” while the violent video game players were more likely to complete the word by making “explode”.

Finally, California argues that the Act is the least restrictive means of accomplishing the state interest. They state that parental controls on video game platforms are ineffective because minors are smart enough to bypass them and that their Act is not so intrusive while only acting to promote parental authority protection.

Respondent’s Argument that the Act is unconstitutional

The Respondent’s argument outlines four reasons why the California law is unconstitutional. First, video games, including those depicting violence, are a form of expression fully protected by the First Amendment. Second, because the Court should deny California the ability to carve out exceptions to the First Amendment. Third, the California Act fails Strict Scrutiny. Fourth and final reason is that the Act is unconstitutionally vague.

To the first argument that video games are a form of expression protected by the First amendment. It is uncontested by even the State of California. Quite frankly, Respondents are correct that no other conclusion is possible because video games are a “story-laden medium” which typically explore themes and ideas that parallel those of movies and books. In fact, as the Respondents point out, many movies and books come from video games and vice versa. Due to video games interactive nature, Video games may deserve an even heightened level of protection. Respondents make this assertion by pointing to a case in which Judge Posner explained, “[a]ll literature . . . is interactive; the 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.” American Amusement Machine Ass’n v. Kendrick, 244 F.3d 572, 577 (7th Cir. 2001). As a video game player, I can’t think of a better description of video games than the way Posner describes literature. California contends that violent video games steps out of the First Amendment protection because the amount of violence in some video games makes them obscene. However, the Respondents point out that violence has been depicted in literature and movies from the Bible and Greek fables to Star Wars and even Harry Potter.

Second, Respondents believe the Court should deny California’s attempt to carve out First Amendment exceptions for “offensively violent” video games. Respondents believe this is a scary proposition because “California asserts the power to decide that certain otherwise-protected, non-sexual content is so offensive that it is “simply not worthy of constitutional protection” as to minors.” The Respondents take the natural position that they worry by allowing the California law to be used that it would create a slippery slope as to what the government could regulate as “offensive and violent.” Part of the argument against carving out an exception is that California argues they want an exception to help parents monitor what their children are exposed to through video games. But, California does nothing to show that parents NEED any help monitoring their children’s video games usage.

Third, Respondents, with lower courts backing, believe the California Act fails strict scrutiny. Strict scrutiny requires that California articulate a compelling state interest, prove that the Act actually serves that interest and is “necessary” to do so, and show that the Act is narrowly tailored to serve that interest. Respondents argue that California fails to show a compelling state interest because California does not have a state interest in shielding minors from Free Expression nor can California show any harm to minors that view or interact with the violent video games. California also fails because “while the Act might ban a 16-year-old from buying or renting Tom Clancy’s Rainbow Six 3 video game, it would still allow him to buy or rent Tom Clancy’s movies or books. This selective treatment of similar speech underscores that California’s ultimate purpose in enacting the law was to target and punish a disfavored speaker, rather than achieve its asserted purpose.”

The act is also not narrowly tailored as it creates an under 18 label that doesn’t properly address the differences between a 17 year old and a 7 year old’s abilities to play and understand the video games.

The act has also not been demonstrated being the least restrictive means of accomplishing their goals. California has done little to show that the current ratings system by ESRB is ineffective, that an educational campaign to help promote parent awareness is less effective or that current parental control settings on video game and computer platforms are ineffective.

Finally, the Act is unconstitutionally vague and should be struck down as such. The respondents argue that the vague language is left to interpretation by the state and that the killing and dismembering of a human being can be hard to gauge due to video games that depict zombies or humans that may be killed only to return immediately. For example, Kratos from the video game “God of War” is a Greek God and not exactly human. Is his violent nature regulated by the Act?

The Supreme Court has not ruled or even heard the argument yet…so you’re stuck with my opinion.

First, it is my opinion that strict scrutiny should not be used for the same reasons advanced by California. Based on precedent, the First Amendment seems to be flexible based on the interest in protecting minors and fostering an environment that minors will learn and become more productive members of society. I believe the government does have a legitimate interest in helping parents monitor their children and since public schools around the country can limit Free Speech in their schools when it serves no valuable or redeeming quality, state governments should be allowed to enforce laws that monitor children’s purchases if it advances a compelling state interest.

Second, I believe California has shown a direct and causal link through their research which includes more than just the example cited above. Based on the limitations dealing with studying minors and video game violence, it would seem the state has done everything they could possibly do to research the effects of video game violence.

However, I believe California has failed to show that their act is the least restrictive means of promoting their state interest. Personally, I believe a campaign educating the public on the effects of video game violence would be a better way to help parents limit their children’s violent video game usage. I also believe that the parental controls are placed on video game platforms for the parents to control their children’s usage. If a child circumvents the parent’s control settings, the parent should be the one to find out and decide the consequences for their child.

Furthermore, I agree with the video game side because the Act is unconstitutionally vague. Who regulates what makes a game worthy of the “18” sticker that would be placed on the video games by California? Are games involving the slaying and dismemberment of zombies regulated by the Act even though they don’t involve human beings? What about games involving animals or aliens or mythical creatures? I think because the Act fails to answer these types of questions, it allows the government to regulate more than they purport to regulate. This would create a nightmare for video game creators and also create a slippery slope of government regulating more than maybe they should be regulating.

For these reasons, I believe the Governator loses his appeal. So, Entertainment Merchants Association I say, “FINISH HIM!”

Final Judgment: California Act…FATALITY.


~ by Daniella on October 25, 2010.

12 Responses to “Supreme Court Kombat: Governator v. Video Games”

  1. I started off reading your post and agreeing with the Governator, but you ended up turning me in to a t0tal gam3r. I obviously agree that something needs to be done to make the public more aware of the effects of violent video game usage on children and teens, but I don’t know if this regulation is really the best method. As you noted, there is obviously some effect on children who play these games (for the record, my first response was explore), but extensive research on it just isn’t possible. And without that research, California’s stance in this case kind of falls apart. I liked your idea of educating parents on the known effects (and perhaps the potential effects?) that playing violent video games may have on their children, but imposing a regulation as you described certain does not strike me as “the least restrictive means of promoting the state’s interest.” I think another huge issue with California’s argument is the vagueness factor. There are just far too many factors that come into play with video games for California to be able to clearly state what they will and will not regulate in their Act, and giving the government the overbroad freedom to regulate whatever they deem inappropriate creates some serious constitutionality concerns for me. Overall, I agree, this California Act looks like it was written by a bunch of n00bz.

  2. First, you did a really good job of summarizing the two positions.

    I agree with you that the statute as written may not pass SS. However, I do think that the state should be able to pass laws if there is an objective way to determine whether a certain violent video game is “obscene.” For example, the group that determines the rating of the video game could determine if the content is “obscene.” Thus, if the statute replaces the word “violent” with “obscene” it could be constitutional.

    I see the point about the difference between 17 year old and 7 year olds. I think 18 years is just the number that was set for something or other and that is the bright line that lawmakers choose to use for ease of application. The age of maturity is more like 25-27, but I believe that depends on what we are talking about. Should a 17 year old be allowed to play a violent/obscene video game? I am willing to bet that even you, Frankie, will sometimes watch a movie or play a video game and then go “judo chop” one of your friends for fun (no shame, I do it too!).

    If there is a credible risk that a 17 year old would act out violently, then I see the justification for such a law. However, I think the age may be younger, somewhere closer to the age at which we begin to understand the concept of right and wrong AND have the impulse-control to stop us from bludgeoning our friends.

  3. A couple arguments left out (for time and space purposes):

    In a funny moment, the video game people pointed out that a few games that would be considered violent were video games that were spawned from Schwarzenegger movies. Kinda ironic.

    Second, there is an industry rating system done by the ESRB. I think they rate NC-17 or Mature and businesses usually tend to not sell these games to minors but as California points out, nearly 20% of minors still buy these mature rated games on their own. But, the video game counters with the stats that show Rated R movie tickets are actually easier to buy than video games.

    I do agree with you Holly that some type of regulation is necessary but it needs to be done with more certainty than a government rating system that isn’t clearly defined. Or, as Didi put it, a rating system that isn’t written by noobz.

  4. I feel like outside of the lack of a clear-cut definition of obscene, the law means well. From what I see and hear, parents are not as attentive as they were even since we were children. And way less attentive than when our parents (who I presume are the legislators now) were children. I would argue that modern parents as a general class need help.

    I grew up with two lawyer parents and they would probably not want me to be killing things, but there was really nothing stopping me from doing what I want. Fortunately for them, I only liked sports since I was 14.

    I’m interested in seeing where this goes.

  5. While I have never played video games regularly, and am *disgusted* by the examples of extreme violence given in your post (really, decapitating a woman with a shovel while she’s begging for her life? come on!), I can’t say that I agree with a lot of what California is arguing.

    My biggest problem is that they want the First Amendment protection of free speech to not apply to minors. That’s a scary proposition to me. I think it’s ok to restrict speech in school, as that seems to be a logical extension of not shouting “fire” in a crowded area. In school, things have to work in a mannered and orderly way in order for all the students to get the education required by the state. Unlimited free speech rights threaten that order, and so speech is limited. However, in the home, the government should butt out. Free speech at home is none of the state’s business, and it should be up to the parents to regulate as they see fit.

    Finally, if parents aren’t attentive to what their children are playing, who’s to say they won’t just go out and buy these games for their kids anyway. And, at least when I was younger, people would go to their friends houses who had the best systems/games to play, so if kids really wanted to play these games, none of these ideas would stop them.

  6. I agree with your final outcome, however, I can see there being a distinction between public schools controlling the content in school and a State controlling content for minors in general. The way I see it, public schools are funded by State money, and therefore have the right to control what “becomes” of their funding. A State however is not monetarily funding these video games, or more simply put, not openly or directly advocating/supporting these games, so the State should not be allowed to control the availability of these video games. This may be a fine line, but I think there is some sort of a distinction here.

    Your point regarding the fact that this new approach may not be the most hands-off approach is very valid. It seems like there are too many what-ifs and places where this plan could all go awry. Once again, parents should just be parents and do their job! I understand there may be difficulties in controlling a 16 year old who has a valid driver’s license and a part time job from getting one of these violent games, but on the same note, the State should not have to step in and be the parent!

  7. The fact that the ESRB is voluntary is far from fatal. Movie ratings are also voluntary, but to have a movie show in virtually any theater chain, it has to be rated and typically carry no greater than an “R” rating. None of the major theater chains show NC-17 films as a matter of decency and to avoid alienating customers. The pressure for “decency” in video games should come the same way. Sure, some retailers don’t enforce the ESRB ratings perfectly, but do movie theaters all strictly enforce film ratings 100% of the time? I remember seeing at least one Adult Only-rated game in a Best Buy before, but is this still the case? Do retailers carry those games anymore?

    I’m still somewhat surprised that the backlash against violent video games is so strong given what’s accessible on TV and in movies. There is a higher level of interactivity with video games, but much less realism. The example above with the shovel certainly isn’t attractive, but if the objection is to the depiction of violence against women, wasn’t Kill Bill much worse (Uma Thurman’s character is shot in the chest with a shotgun, involuntarily sedated, and buried alive in a casket)? What about The Godfather? Even that was from a more “decent” time. The film rating system is apparently able to handle those and countless other violent films.

    As far as children being too sophisticated to be controlled by parental control features: what makes the advocates for this bill think that kids won’t continue to circumvent control measures? I think this is a surefire way to turn the 15-year-old who wants to purchase and play a violent video game into one that pirates a copy off of the Internet. The advocates of this are also short-sighted. As the video game industry moves to digital distribution of content over the Internet and brick-and-mortar retailers fade out, how should this law apply? Requiring credit cards is imperfect, and if children are so sophisticated and parents so unable to control them, what keeps one from just using his or her parent’s card?

    I don’t think this law stands much of a chance with the Supreme Court. The likening of this to regulation of in-school speech is intellectually disingenuous. Make what you will of the Citizens United case, but the Supreme Court stood up for the First Amendment in a big way there. Based on that, I don’t think this law stands much of a chance in front of the Roberts Court.

  8. I feel there are too many variables at work for this law to exist effectively. Having played a couple of games in my day, I feel the ESRB is not nearly consistent enough in it’s ratings… and yet this law doesn’t even reference the ESRB. Instead, it merely categorizes “violent videogames” as something the legislature gestures at generally.

    The Act described here strikes me as something that isn’t necessarily as offensive of First Amendment rights as it sounds. The law doesn’t prohibit the exhibition or purchase of violent video games by adults of the age of consent. It merely tries to prevent adult materials from reaching underage individuals much the same as laws preventing pornography. That is to say, even if I agree that perhaps the law is offensive to the First Amendment, the intent of the law seems worthwhile.

  9. Very nice summary and presentation of the issues. One might say…. Flawless Victory?

    I just can’t see this law being constitutional as analyzed against the First Amendment. I agree that the State has a legitimate interest in protecting kids (I feel like this is one of the interests the State can throw out there at almost any time and prevail, on the issue of legitimate interest at least).

    But that’s where the constitutionality ends. Every time a study comes out that “proves” that violent videogames make youth more violent, another comes out “disproving” the proposition. I agree that an accurate study would be hard to design, especially with all the confounding variables inevitably present. And the study you did mention, with the explo_e prompt, does not persuade me at all. At best, it represents support for the “primacy/recency” effect, which few (if any) scholars debate anymore. And, even if it runs deeper than that, I can see legitimate attack on the grounds that the connotative dichotomy between “explode” and “explore” do not prove any inherent violence because both words, in my mind at least, can potentially have both violent and non-violent meanings.

    Even if that hurdle somehow was overcome, the overbreadth and discretion left in the hands of local authorities kill any chance for constitutionality of this Act. You pointed out a few great examples (out of many, many more) which illustrate this. Many games have zombies. Is that covered by the Act? They are certainly violent, but are those humans? Further, how realistic does the violence have to be? I played a game called “Super Mario Brothers” (you may have heard of it) where defeating enemies involved jumping on their heads. Is comic violence covered? If so, then Saturday morning cartoons are surely at least as harmful to our kids as these videogames.

    In short, there are just too many things wrong with this statute. If the Supreme Court upholds it, it will have to be against the weight of all the First Amendment jurisprudence available, and will mark a frightening shift towards overcensorship.

  10. I kept changing my mind on the issue as I was reading your blog, but in the end, I agree with you. I think it is definitely important to educate parents not only about the possible effects of these video games, but also about the video games that are actually on the market. Especially because I’m sure many parents aren’t even aware that such games exist or that their children are playing them.

    As for not applying the First Amendment protection of free speech to minors, I think that is ridiculous. I understand and agree to an extent with the restriction of speech in school. But in those decisions, the purpose of the restriction was to prohibit speech that would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school. Without this, there could be much more disorder or disturbance to school operations. That being said, it should only really apply to school settings. Especially because those decisions point out that students in school, as well as out of school, are persons under the Constitution, and while there are some restrictions, they do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. The restrictions are to keep order in school and protect against disturbance that might hinder the education of these students. This is not a concern at home. What a parent allows their child to do at home should be up to the parents. They are adults and should be the ones responsible for regulating what their children do. Also, the state’s interest in the school setting is clear, and understandable. But what is the state’s interest in the home? There really isn’t one.

    I couldn’t agree more with Didi and Kate. Especially with what Kate said about kids going to a friend’s house. I was going to point out that kids will do what they want and will get around certain restrictions.

  11. Very nice article and very well done!
    I am not completely convinced by the idea that the state should be able to avoid strict scrutiny because the compelling state interest in limiting speech in schools and the purchasing of video games in students’ private lives is similar. I think they are in fact, two very different interests. The school is a state controlled arena, it is where students go to receive their public education. The state has more control here, and it has a greater interest in that control because it is providing students with an education, which is essential to their development. However, video games, and other forms of entertainment, are outside the state’s sphere of control – they are located securely in the private lives of students and giving the state power to control student purchases is allowing state control into the student’s private lives, an entirely different interest from protecting the school environment altogether.
    I think I agree with the majority of the responses here, that this law is a little too broad/vague to comport with First Amendment standards. I think the censoring of entertainment media is a job best left to parents who can rely on ESRB ratings and their personal knowledge of their child’s behavior and maturity level.

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