In a matter of weeks, the U.S. Supreme Court could very well decide to make a California law regulating violent video games — and banning their sale to minors — the law of the land. As Tracy mentioned in her news roundup of the case last November, there are three basic questions before the Court: Are violent video games protected by the First Amendment? Is it constitutional to ban their sale to otherwise law-abiding minors? Along the way, the Court may have to definitively answer the trickiest question of all: Are these video games obscene?
The Supreme Court heard oral arguments on the case, Schwarzenegger v. The Entertainment Merchants Association and Entertainment Software Association, last Election Day. The case challenges the legality of a state law that California governor Arnold Schwarzenegger signed in 2005 barring the sale of violent games to minors. The Northern District of California Court and Ninth Court of Appeals both struck the law down on appeal, but the Supreme Court could decide to extend its reach nationwide. If that happens, the federal government could regulate video games the way it does television and radio — even though the Entertainment Software Review Board (ESRB) has been doing the exact same job since 1994. Imagine the government taking over the Motion Picture Association of America (MPAA) and deciding whether recent Academy Award nominee “Blue Valentine” deserved that NC-17 rating after all. Plus, the First Amendment protections enjoyed by video games — and by extension, to books, films and other forms of entertainment media — could vanish instantly. Although the state argues that these restrictions are no different than those governing adult films, there’s no denying that the cost of producing this newly actionable content would go right to consumers, raising prices dramatically.
At first blush, though, the idea of regulating video games makes sense. Isn’t there a ton of research out there linking violent video games with aggression in gamers? Well … not really. One 2001 study of 35 different studies found that playing violent games triggers a player’s “fight or flight” response and increases the likelihood of aggressive behavior. It also found that playing these games can increase emotional responses and inhibit self-control. A study published in January 2011 did link video games with depression and anxiety, but it’s already come under fire from gaming advocates. Of course, correlation doesn’t mean causation; to date, every single lawsuit that has sought to punish video game companies for selling violent content has been dismissed. In fact, quite a few studies debunk this link outright; a host of social scientists and scholars have bombarded the Court with them in amicus curiae (friend of the Court) briefs that you can find here and here.
The obscenity issue could be a tougher nut to crack. To be declared obscene, a piece of work would have to satisfy three separate legal standards. Collectively known as the Miller test, it poses the following questions:
- Would the average person living in a contemporary society think the work serves a prurient interest?
- Does the work depict or describe sexual acts in a “patently offensive” manner?
- Does the work lack any artistic, literary, political or scientific value?
I’m no lawyer, but that second bullet point could be a problem. The Miller standard could definitely play a role in the Court’s decision. It popped up during oral arguments; you can find a great discussion of the test in this transcript. (Yes, that’s Justice Sotomayor discussing the possibility of banning Bugs Bunny.) If you’d like to listen to the entire transcript, click here. (Trust me on this: Supreme Court oral arguments are really entertaining. Think rapid-fire theatre. And there’s nothing funnier than a snarky Supreme Court justice.)
One thing’s for sure: No matter how the Court rules, the video game industry will remain under attack. Leland Yee, the California legislator responsible for the original law, has vowed to keep introducing new regulations on video games — and others have vowed to introduce laws in response. As gaming advocate Jennifer Mercurio warned, “For video games, 2011 and 2012 will probably be extremely active across the country on the legislative front.” Stay tuned.