U.S. Supreme Court rules on video game law

Last Monday (June 27, 2011), the U.S. Supreme Court announced its decision in a free-speech case of major importance to the video game industry.

In 2005, the California state legislature passed – and Gov. Arnold Schwarzenegger signed – a law to ban the sale of violent video games to minors. It would have taken effect on Jan. 6, 2006, except that the Entertainment Software Association (ESA) and the Video Software Dealers Association quickly sued to block its enforcement.

The industry side won that round, but the Schwarzenegger administration appealed, and the case began slowly winding its way to the Supreme Court in Washington, D.C.

The software industry includes many Japanese companies. Sony, Nintendo, Capcom, Bandai Namco, Sega, Konami and Square Enix are all members of the ESA (which has a press release on the Supreme Court’s decision here). Through their involvement in this case, such companies were naturally looking out for their own commercial interests. But those interests happened to coincide with free-speech values that many Americans, including myself, cherish.

When the Supreme Court heard oral arguments in the case in November of last year I blogged here about why I hoped the law would be struck down. Now I am happy to report that it has been.

In a 7-2 vote, the court rejected the California law on free speech grounds. Justice Antonin Scalia wrote the majority opinion, joined by justices Anthony Kennedy, Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan. Justice Samuel Alito wrote a concurring opinion joined by Chief Justice John Roberts. Justices Clarence Thomas and Stephen Breyer dissented.

Cases sometimes change their names as they wind through the system. For reasons including the fact that Schwarzenegger is no longer in office, this one finally ended up as “Brown vs Entertainment Merchants Association.” You can read the full text of the opinions, totaling 92 pages, on the Supreme Court’s website. Or you can read on in this post for an abbreviated version with my comments.

Note: In the interest of smoother reading, I have eliminated most of the citations with which court opinions are usually peppered. For the absolutely definitive text, go to the Supreme Court’s site.

The majority opinion by Justice Scalia

Scalia: A free speech defender who is not afraid of video games

Scalia begins with a one-sentence statement of the basic issue:

We consider whether a California law imposing restrictions on violent video games comports with the First Amendment.

Then he describes the contested law:

[It] prohibits the sale or rental of “violent video games” to minors, and requires their packaging to be labeled “18.” The Act covers games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”

Next he describes the principles at stake:

California correctly acknowledges that video games qualify for First Amendment protection. The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try…Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, “esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.”

He notes that free speech can legally be restricted in a few very specific areas, such as obscenity, but that violence has not been recognized as one of these areas. He refers to U.S. vs. Stevens, a case decided just last year, which invalidated a ban on videos depicting animal cruelty:

We held that statute to be an impermissible content-based restriction on speech. There was no American tradition of forbidding the depiction of animal cruelty—though States have long had laws against committing it.

Scalia is not impressed with the idea the law is intended to protect children:

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.

While I agree with Scalia’s general point, I think he is overreaching in a couple of his examples. Grimm’s fairy tales are nearly always presented to children in sanitized form. I have been a major bookworm since shortly after kindergarten, and his reference to eyes getting pecked out by doves in the Cinderella story was the first time I had ever heard of it. If he wanted examples of brutal violence that nearly all American kids are actually exposed to, he could have chosen virtually any animated cartoon from the Loony Tunes library, in which characters such as Tom and Jerry, Bugs Bunny and Daffy Duck, or Wile E. Coyote and the Roadrunner electrocute each other, hurl each other off of cliffs, clobber each other with sledgehammers, and hand each other dynamite-filled cigars – always with only mild negative consequences.

Scalia recounts a history of “bad influences” from which well-meaning but misguided censors have attempted protect young people, from penny dreadful novels in the 1800s to movies, comics, TV shows and song lyrics in the 20th century.

But some people say that playing a video game is substantially different from watching a movie, reading a book or listening to a song.

California claims that video games present special problems because they are “interactive,” in that the player participates in the violent action on screen and determines its outcome. The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to.

Again, Scalia overreaches in his defense of a good cause. The interactive novels he speaks of enjoyed a heyday in the late 1970s and early 1980s (as I recall from being a kid in those days), but they were always something of a novelty or a fad and never a major social phenomenon on the scale of movies then or video games now. Moreover, the stories were innocent enough, with characters mostly trying to escape violence rather than committing it.

His next point is much stronger:

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. As Judge [Richard] Posner has observed, all literature is interactive. “[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.” [From a 2001 case] (striking down a similar restriction on violent video games).

Indeed, it is the interactive aspect that gives video games their greatest potential to make positive moral statements. In games such as Shadow of the Colossus and Red Dead Redemption (the latter of which I blogged about here), players do participate in violent acts such as slaying monsters or shooting enemies – but in such a way that they are forced to ponder the morality of violence. The stories are designed to lead players into circumstances in which they do things they later have cause to reflect on and regret.

Getting into the legal meat of the decision, Scalia writes:

Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. The State must specifically identify an “actual problem” in need of solving, and the curtailment of free speech must be actually necessary to the solution. That is a demanding standard.

California cannot meet that standard. At the outset, it acknowledges that it cannot show a direct causal link between violent video games and harm to minors.

He then proceeds to dismiss the two main arguments for the law: that it protects children and helps parents. Regarding studies on the effects of video games on children, he says:

They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology. They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.

If the state were serious about avoiding such effects on children, Scalia says, it would also go after the purveyors of books and cartoons rather than narrowly focusing on video games.

As for the law’s supposed helpfulness to parents, Scalia writes:

California cannot show that the Act’s restrictions meet a substantial need of parents who wish to restrict their children’s access to violent video games but cannot do so. The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games. The system, implemented by the Entertainment Software Rating Board (ESRB), assigns age-specific ratings to each video game submitted: EC (Early Childhood); E (Everyone); E10+ (Everyone 10 and older); T (Teens); M (17 and older); and AO (Adults Only—18 and older). The Video Software Dealers Association encourages retailers to prominently display information about the ESRB system in their stores; to refrain from renting or selling adults only games to minors; and to rent or sell “M” rated games to minors only with parental consent.

Incidentally, a similar system exists in Japan, with the Computer Entertainment Rating Organization (CERO) assigning ratings of A (suitable for all ages), B (12 and up), C (15 and up), D (17 and up) and Z (sold only to those aged 18 and up).

In 2009, the Federal Trade Commission (FTC) found that, as a result of this system, “the video game industry outpaces the movie and music industries” in “(1) restricting target marketing of mature-rated products to children; (2) clearly and prominently disclosing rating information; and (3) restricting children’s access to mature-rated products at retail.” This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned-parents’ control can hardly be a compelling state interest.

And finally, the Act’s purported aid to parental authority is vastly overinclusive. Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want.

In the concluding section of the majority opinion, Scalia writes:

California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors. While we have pointed out above that some of the evidence brought forward to support the harmfulness of video games is unpersuasive, we do not mean to demean or disparage the concerns that underlie the attempt to regulate them—concerns that may and doubtless do prompt a good deal of parental oversight. We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development. Our task is only to say whether or not such works constitute a “well-defined and narrowly limited clas[s] of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem” (the answer plainly is no); and if not, whether the regulation of such works is justified by that high degree of necessity we have described as a compelling state interest (it is not). Even where the protection of children is the object, the constitutional limits on governmental action apply…

As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime… 

We affirm the judgment below [which found the law unconstitutional].

Justice Alito’s concurrence

In his concurring opinion, Alito agrees with majority’s conclusion, but he reaches it on different legal grounds and takes exception to the majority’s sanguine attitude toward the impact of video games on real-world behavior.

In my blog post about this case last year, I argued that the California law had a chilling effect on free speech and should be found void for vagueness. In these regards, I am pleased to report that Alito saw it my way. He wrote:

Alito: Misgivings about games outweighed by vagueness of law to restrict their sale

Alito: Misgivings about violent games outweighed by vagueness of law

Here, the California law does not define “violent video games” with the “narrow specificity” that the Constitution demands.

Alito notes that the drafters of the California law clearly crafted their statute with an eye on obscenity restrictions that the court has upheld in the past. The statute described the violent games it sought to ban as “appeal[ing] to a deviant or morbid interest of minors,” “patently offensive to prevailing standards in the community…for minors,” and “lack[ing] serious literary, artistic, political, or scientific value for minors.” The references to “minors” are new. The rest of the wording comes straight the Supreme Court’s decision in Miller vs. California (1973), describing what sort of materials could be regulated as “obscene.”

But obscenity and violence are not the same, Alito writes:

At least when Miller was decided, depictions of “hard core” sexual conduct were not a common feature of mainstream entertainment. But nothing similar can be said about much of the conduct covered by the California law. It provides that a video game cannot qualify as “violent” unless “the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being.”

For better or worse, our society has long regarded many depictions of killing and maiming as suitable features of popular entertainment, including entertainment that is widely available to minors. The California law’s threshold requirement would more closely resemble the limitation in Miller if it targeted a narrower class of graphic depictions. 

Although our society does not generally regard all depictions of violence as suitable for children or adolescents, the prevalence of violent depictions in children’s literature and entertainment creates numerous opportunities for reasonable people to disagree about which depictions may excite “deviant” or “morbid” impulses. 

 For these reasons, I conclude that the California violent video game law fails to provide the fair notice that the Constitution requires. And I would go no further….

Alito’s reluctance to “go further” is at least in part a dig at what he sees as the majority’s complacency about how threatening video games might be:

In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar…

Today’s most advanced video games create realistic alternative worlds in which millions of players immerse themselves for hours on end. These games feature visual imagery and sounds that are strikingly realistic, and in the near future video-game graphics may be virtually indistinguishable from actual video footage. Many of the games already on the market can produce high definition images, and it is predicted that it will not be long before video-game images will be seen in three dimensions. It is also forecast that video games will soon provide sensory feedback. By wearing a special vest or other device, a player will be able to experience physical sensations supposedly felt by a character on the screen. Some amici who support respondents foresee the day when “‘virtual reality shoot-‘em-ups’” will allow children to “‘actually feel the splatting blood from the blown-off head’” of a victim.

Persons who play video games also have an unprecedented ability to participate in the events that take place in the virtual worlds that these games create. Players can create their own video-game characters and can use photos to produce characters that closely resemble actual people. A person playing a sophisticated game can make a multitude of choices and can thereby alter the course of the action in the game. In addition, the means by which players control the action in video games now bear a closer relationship to the means by which people control action in the real world. While the action in older games was often directed with buttons or a joystick, players dictate the action in newer games by engaging in the same motions that they desire a character in the game to perform. For example, a player who wants a video-game character to swing a baseball bat—either to hit a ball or smash a skull—could bring that about by simulating the motion of actually swinging a bat.

Alito certainly paints an alarming picture. But just as Scalia did, he takes his examples too far when he then goes on to describe ultraviolent video games that reenact recent real-life crimes or indulge in homicidally racist fantasies. Such games are quite rare and cater to extremely small niche markets. They should not be treated as relevant to regulation of mainstream entertainment.

And on this point, back in the majority opinion, Scalia responds to Alito in a footnote:

Nor is JUSTICE ALITO correct in attributing to us the view that “violent video games really present no serious problem.” Perhaps they do present a problem, and perhaps none of us would allow our own children to play them. But there are all sorts of “problems”—some of them surely more serious than this one—that cannot be addressed by governmental restriction of free expression: for example, the problem of encouraging anti-Semitism (National Socialist Party of America v. Skokie (1977)), the problem of spreading a political philosophy hostile to the Constitution (Noto v. United States, (1961)), or the problem of encouraging disrespect for the Nation’s flag (Texas v. Johnson, (1989)).

Alito worries that the majority’s opinion may undermine itself in practice:

In this case, the Court’s sweeping opinion will likely be read by many, both inside and outside the video-game industry, as suggesting that no regulation of minors’ access to violent video games is allowed…

Citing the video-game industry’s voluntary rating system, the Court argues that the California law does not “meet a substantial need of parents who wish to restrict their children’s access to violent video games but cannot do so.” The Court does not mention the fact that the industry adopted this system in response to the threat of federal regulation, a threat that the Court’s opinion may now be seen as largely eliminating. Nor does the Court acknowledge that compliance with this system at the time of the enactment of the California law left much to be desired—or that future enforcement may decline if the video-game industry perceives that any threat of government regulation has vanished.

I think this worry is overblown. The Motion Picture Association of America introduced its movie-rating system in the United States as a system of self-regulation that was meant to fend off efforts at government censorship. (The MPAA’s own website is reasonably up-front about this.) The continued absence of government censorship has not led to the collapse of the movie rating system, and there is no reason to think the video game rating system will fare any worse.

Justice Thomas’ dissent

Thomas: Don't talk to his kids

Justice Thomas thinks the California law does not violate the First Amendment’s guarantee of free speech:

The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents.

The bulk of his dissenting opinion is a 13-page history of American childrearing customs, from Puritan times to early 19th century. It is somewhat interesting to read, but really seems to have no bearing on the current case. I agree with Scalia, who brushes off Thomas’ dissent in a short footnote:

“JUSTICE THOMAS…denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none.”

Justice Breyer’s dissent

Breyer begins his dissenting opinion by explaining that, unlike Alito, he does not find the statute vague.

Then he writes:

Like the majority, I believe that the California law must be “narrowly tailored” to further a “compelling interest,” without there being a “less restrictive” alternative that would be “at least as effective.”

Breyer: Would defer to the California legislature

But unlike the majority, he believe the law meets that test:

California’s law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help. All it prevents is a child or adolescent from buying, without a parent’s assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17.

Like Alito, Breyer is especially concerned that the interactive nature of video games could make them harmful. There are studies that come out on all sides of this issue, and Breyer cites so many of them that his opinion includes a lengthy bibliographic index. However:

I, like most judges, lack the social science expertise to say definitively who is right…

But that doubt is actually a key part of his reasoning.

Unlike the majority, I would find sufficient grounds in these studies and expert opinions for this Court to defer to an elected legislature’s conclusion that the video games in question are particularly likely to harm children. This Court has always thought it owed an elected legislature some degree of deference in respect to legislative facts of this kind, particularly when they involve technical matters that are beyond our competence, and even in First Amendment cases.

If video games are dangerous, he says, then the law should stop minors from buying them. He cites an FTC study saying that 20 percent of those under 17 can buy M-rated games. But Scalia has a comeback for that, saying that sales of liquor to minors occur at about the same rate, despite the fact that this too is illegal. The game industry’s voluntary system is about as effective as a law would be.

Breyer thinks parents need all the help they can get, especially when their tech-savvy kids are left at home alone:

Today, 5.3 million gradeschool-age children of working parents are routinely home alone. Thus, it has, if anything, become more important to supplement parents’ authority to guide their children’s development.

The industry also argues for an alternative technological solution, namely “filtering at the console level.” But it takes only a quick search of the Internet to find guides explaining how to circumvent any such technological controls. YouTube viewers, for example, have watched one of those guides (called “How to bypass parental controls on the Xbox 360”) more than 47,000 times.

I just watched the video Breyer mentioned myself while preparing this post, and you can see it yourself above. Parents may find this sort of thing annoying, but they shouldn’t be afraid of it. No matter how tech-savvy the kids may be, parents always hold the nuclear option: “If I ever catch you playing an M-rated game, or if I ever see one in this house, then the X-box is going straight to Goodwill.”  There’s no software patch for that.

The people ultimately responsible for parenting are parents. If you aren’t home enough to realize that your kid is immersed in a violent video game that literally takes dozens of hours to complete, then you just aren’t home enough.

Breyer concludes:

I add that the majority’s different conclusion creates a serious anomaly in First Amendment law… [A] State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most violent interactive video games. But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?

Breyer makes a challenging point. This is an anomaly — and it must remain an irksome one for anyone unwilling to accept Alito’s attempt to explain why the law has so far treated depictions of violence and depictions of sex in different ways. But it is worth noting the law does not forbid minors from seeing R-rated movies, either. Theater operators do that, just as retailers restrict the sale of certain games to minors. In line with Scalia’s argument, not every problem requires a state-imposed solution.

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