Like much else in the Digital Age, video games have changed enormously over the past three decades — from simple batting of a virtual tennis ball across a virtual net to highly sophisticated narratives and images that can be creatively manipulated for different outcomes.  Now, for the first time, the Supreme Court is poised to clarify just what forms of expression in that medium are entitled to protection as free speech under the First Amendment, and how far such protection might extend.

Next Tuesday, at 10 a.m., the Court will hold a one-hour oral argument in the case of Schwarzenegger, et al., v. Entertainment Merchants Association, et al. (08-1448) — a test of the constitutionality of a five-year-old California state law that bans the sale or rental of violent video games to minors — that is, those younger than 18.  Such laws have been tested repeatedly in federal courts over the past decade, and the result is absolutely clear: every time, each law has been struck down by a lower court.  (Arguing for the state of California Tuesday will be a deputy state attorney general, Zackery P. Morazzini, and for the video game and software industries will be Paul M. Smith of Jenner & Block in Washington.)

Background

A starting point for the Court in examining the California law will be two legal truisms: first, children are different, and legislatures can — and sometimes must — take that into account in passing laws; and, second, expression in electronic formats is a form of speech for constitutional purposes.   But, as the Court already knows, there is now what qualifies as a “culture war” over those truisms, when children have access to video game imagery that is — in one way or another –  violent.

On the one side, the Court is being asked to pay close attention to a series of studies that, their proponents argue, show that exposure to violent video games can cause children — over time — to be more aggressive themselves; the violent idea, it is said, can become the source of violent behavior.  On the other side, the Court is being asked to hold fast — as lower courts have — against social and political pressure to set government up as a video-game nanny; that, it is said, is parents’ job.

Here and there across the country, lawmakers have chosen up sides between those two arguments.  Beginning with an ordinance enacted by the city of Indianapolis in July 2000, laws to restrict minors’ access to video games deemed to be violent have been passed in six states in addition to California, and also in St. Louis County, Mo.  California’s law was adopted in 2005, and was due to go into effect at the beginning of 2006, but has never done so because of the challenge to it — so far, successful — by the video game and entertainment software industries.

The Supreme Court passed up its first opportunity to rule on this kind of law.  Indianapolis’ pioneering ordinance — aimed at video arcades and barring minors from those places unless parents were with them — was struck down by the Seventh Circuit Court within a year after passage, and the Supreme Court refused to review an appeal in October 2001 (Kendrick v. American Amusement Machine Co., 01-239).

Now, the Court has stepped in, and will be reviewing the California statute that targets video games that give the player the option of “killing, maiming, dismembering, or sexually assaulting an image of a human being.”  A game is covered by the law only if the acts it describes are shown in a way that a “reasonable person” would find appealing to “a deviant or morbid interest of minors,” if the content would violate community standards on what minors should see, if the content lacks serious value, and if the player can inflict injury through “torture or serious physical abuse” of a human-like figure.

Minors under 18 may not buy or rent such games; the law does not say whether a minor accompanied by a parent could do so legally.   Sales or rentals that violate the law can result in a fine of up to $1,000.  Stores or on-line sources selling or renting games covered by the law must label them as violent video games, and restrict their sale or rental to customers who are 18 or older.

In defending the law against challenges by video game-makers and software design groups, the state relied on a videotape of brief segments from, among others, a highly popular game, “Grand Theft Auto,” delicately described by the Ninth Circuit Court as demonstrating “the myriad ways in which characters can kill or injure victims or adversaries.”  Somewhat skeptically, the Circuit Court noted that the videotape of that game had been “heavily edited,” without showing context or story line.   The Ninth Circuit struck it down under the First Amendment, applying “strict scrutiny.”

The Circuit Court rejected the social science studies submitted by the state, concluding that they did not show that the games harmed minors and did not represent extensive research.  It also found that the state could pursue its interest in shielding minors from inappropriate video content by other means, less threatening to free-speech rights — such as the game industry’s own system of ratings for violent content, and the technology now available that lets parents control what games may be played by their children.

Petition for Certiorari

Top state officials in California took the case on to the Supreme Court, filing their petition on May 19 of last year.   The petition raised two questions — whether violent video games are protected at all by the First Amendment when sold to minors, and, if they were protected and restrictions had to be judged under a “strict scrutiny” standard, whether the state had to prove a direct link between the game’s violence and harm to minors before such games could be banned for young customers.

The first question amounted to a plea for the Court to use a 1968 decision allowing states more leeway to keep obscene materials away from children (Ginsberg v. New York) as a basis for putting violent video games outside the protection of the First Amendment, when sold or rented to minors.  Rather than use a “strict scrutiny” standard to judge a ban on such games for minors, the state argued, the Court should use the more lenient standard spelled out in Ginsberg: that is, a law regulating violent video games for children would be upheld if it was not irrational for the legislature to find that exposure of minors to such material would be harmful to them.

The California law, state officials argued, “reaches only expressive material that this Court should recognize lies outside the circle of constitutional protection.”  The only reason that lower courts have all ruled against such laws, it contended, was that none felt free to apply the Ginsberg standard to video games.

The petition’s second question was a contingency request: if the First Amendment does apply, and the standard of review is “strict scrutiny,” whether a state can meet that standard on the basis of the legislators’ “inference” that harm will come to children after they play violent videos.  The Ninth Circuit, the petition asserted, required a “far more stringent standard” — that is, proof that exposure to such games actually caused physical or psychological harm to the young.

The video-game industry group and the entertainment software industry group opposed Supreme Court review, relying on the string of lower court rulings striking down laws that banned violent video games for youths.   The Ninth Circuit’s decision did not stray from established First Amendment principles, the trade groups contended, and its ruling did not create any conflict with rulings of other courts.

Moreover, the associations contended, the Ginsberg flexible standard of review had never been used to judge any kind of law but one involving “sexual speech.” Though video games may be a new medium of expression, the opposition brief argued, there was no need for the Court to write new First Amendment principles to apply to it.

On the merits, the associations contended that video games are “a modern form of artistic expression,” like movies and TV programs,  that tell stories and entertain audiences through a complex array of pictures, sounds, and text.  They have much to teach the young, the trade groups said.  Moreover, they added, the industry’s own self-regulatory system of labeling was adequate to the task of warning about violent content.

The case was ready for the Supreme Court to consider at its first Conference of last Term, but the Justices took no action on it at the time.  As it turned out, the Court appeared to be holding the case until it ruled on another case seeking an exception to the First Amendment’s protection.  That case was U.S. v. Stevens (08-769).  In that case, the federal government wanted an exception in order to allow a ban on videos of animal cruelty — a plea the Court rejected in April.

Shortly after the Stevens decision came down, the Court on April 26 granted review of the violent video games case from California. The Court was not deterred by the fact that there had been uniformity among the lower courts on the constitutional issue.  Thus, at least four Justices — the number needed to grant review — seemed at least temporarily persuaded by California’s argument that the issue was one of “national importance” because of the rise of what the state called “a new, modern threat to children.”

Merits Briefs

The California officials’ brief on the merits, filed July 12, puts most of its emphasis on an argument that what really is at stake in the case is reinforcement of parents’ control over the moral development of their children.  Although continuing to argue, as it did in the petition for certiorari, that violent video games are inherently harmful to minors and thus deserve no First Amendment protection, the states’ brief repeatedly invokes the need for regulation of “unsupervised” minors’ access to such games — that is, access that parents do not know about and thus cannot control.  The new emphasis may be an indication that the proof of harm to minors, in the social science research, was not strong enough to bolster the harm-to-children approach as the primary argument.

“The state,” according to the brief, “has a vital interest in reinforcing parents’ authority to direct the upbringing of children in order to protect their physical and psychological welfare, as well as their ethical and moral development.”

Children, the state argued, have lesser First Amendment rights than adults, because they lack the capacity to make a “reasoned choice” about whether to view expression like that portrayed in violent videos.  So, their rights are “best protected when the government reinforces parental authority and involvement in choices” affecting their children’s development.

Discussing whether violent video games deserve any First Amendment shield, the state brief contended that — for minors — there is no real difference between “offensively violent” expression and “sexually explicit material.”  Thus, the state makes its argument for extending the Ginsberg flexible standard for minors’ access to expression from obscenity to violence.   A strict scrutiny standard for evaluating expression, the state brief asserted, should be reserved for use in evaluating adults’ access to “a robust marketplace of ideas” that is not appropriate for children.

When the brief does reach the point of discussing whether violent videos do harm children, it relied upon the need to show only “a correlation,” not a direct link, between the exposure and the likely harm.   The games industry, the brief noted, concedes that some violent content should not be accessible to minors, because it has a rating system supposedly to insulate them from it.   And, relying upon a Federal Trade Commission report to Congress on violent videos, the brief repeated the point that a majority of children ages 13 to 16 still can buy such games from retailers, even with the video game industry’s efforts to voluntarily restrict that access.

The Entertainment Merchants Association and the Entertainment Software Association, in their combined merits brief filed September 10, sought to turn the case into a test of whether the Court will protect another “new medium” of expression from efforts at censorship.  The brief opened this way: “The California statute at bar is the latest in a long history of overreactions to new expressive media. In the past, comic books, true-crime novels, movies, rock music, and other new media have all been accused of harming our youth.  In each case, the perceived threat proved unfounded.  Video games are no different.”

Broadly defending video games as a new art form, widely popular and thus enjoyed by millions of people, the trade groups’ brief contended that the Court should allow restrictions on its distribution only based on hard evidence of actual harm, with the restrictions narrowly tailored to satisfy only the “most compelling” government interest.   What California has offered to justify its law, the brief said, is “the same sort of unsupported claims that animated past efforts to regulate new media.”

The associations’ brief thus was shaped to pull the Court’s attention toward not only weaknesses that those groups perceive in the social science data over harm to youths, but the perceived social cost of curtailing access to a new medium of expression at its very inception.  The former is, in essence, an argument about evidence, or lack of it, and the second is, in essence, an invitation to the Court to be cautious about stifling innovation in expression.  Together, the two thrusts of the brief suggest that, in the real world, there is no problem that California needs to solve with an “ill-defined” statute that threatens a private — and frequently uplifting — diversion that Americans spend $10 billion a year to enjoy.

That brief offered a sturdy defense of the content of video games, and sought to demonstrate that what Americans were buying in such huge volume had positive social value.  One of the games that California used to demonstrate how violent some games are — a game called “God of War” — is actually drawn from Greek mythology about redemption of one’s own “brutal past,” the brief noted.  And, rather cleverly, in noting a link between video games and popular books or movies, it cited games based on The Terminator movie starring none other than “Petitioner Schwarzenegger.”

Taking on directly the argument that the Ginsberg standard should be extended from obscenity to violent content, when minors were the audience, the associations’ brief argued that “violence is not and never has been a taboo subject for children,” even though “explicit sexuality” has been off-limits to minors.  It would be impossible, the brief contended, to write a law that “adequately demarcates the line between violence that is ‘appropriate’ for minors and violence that is not.”

On the principal theme of the state’s brief — the claim that the law at issue bolsters parents’ role, the associations’ brief argued that there is no reason to believe that parents need any such assistance, especially with the industry’s labeling practice available, along with technology to allow parents to monitor what games their children will be allowed to play.

If a case’s outcome is ever significantly influenced by the flow of amici briefs, and there is reason to think that that can be a significant factor, the contest in this case is not an even one at all — at least not numerically.  Three briefs of amici support the state (including one from 11 other states), while 28 briefs have been filed to support the video game and software industries — ranging from the Chamber of Commerce to the American Civil Liberties Union, from the Future of Music Coalition to the Comic Book Legal Defense Fund.

Among the briefs on the state’s side is one that sought to shore up the social science data argument behind regulating violent video games.  The group filing that brief, Common Sense Media, is a non-profit organization that seeks to protect children from new media.  While defending the studies that have been done, however, that brief also suggested in a footnote that if the Court does find that the current state of the science does not support regulation, it should at least leave open the possibility that it will be forthcoming.

The bulk of the arguments of amici on the other side focus on the perceived threat to First Amendment principles.   The majority of the briefs on that side, in fact, are from organizations and industries that rely heavily upon First Amendment protection in their everyday operations, such as movie studios, news organizations, and music and software producers.

One of the briefs, from the Pennsylvania Center for the First Amendment and the Brechner First Amendment Project, implied that the Court may have taken on more of a societal challenge than it realized when it granted review of the case.  By granting the petition, it commented, “the Court now stands primed to wade deeply into the culture war over media violence.  This is a surreal, surrogate and substitute war…for addressing the problems of real-world violence, as California and other government entities play the media blame game…It also is a war over censorship.”  What the Court is being asked to sustain, that brief said dismissively, is “feel-good legislation.”

Analysis

The Court may already have signaled that it does see a problem with violent video games and their potential impact on children, simply by taking on the California appeal when there was no split in the lower courts on the issue.  If that perception exists and if it represents a majority view, the argument between the two sides over whether the scientific data now available proves the point (or does not prove it at all) may have little effect.  The Justices may be prepared to move on to the harder question of what to do about it.

At a very basic level of emotion, it may be harder for the Court to resist creating some special protection for children in this case than it was to turn aside pleas for protecting those offended, in the Stevens case, by depictions of animal cruelty.  The Court thus could be strongly tempted by the argument that, just as children need protection from obscenity, they also need it from gratuitous violence — especially when minors themselves are choosing the level of violence they arrange to happen on their computer screen.

It is difficult to discern a potential compromise or middle-ground position on this issue.  Once the Court embraced the thought that children at least might be affected by exposure to violent videos, the Ginsberg flexible standard to judge regulation of that exposure would immediately look promising as an answer.  As the Stevens decision showed, the highest hurdle is getting the Court to step away from its tradition of allowing only a few very exceptions to First Amendment protection for expression.

On the other hand, the Court has demonstrated that it finds virtue in caution when confronting the social effects of new media.  Perhaps there is a member of the Court who actually plays a video game (or knows well someone who does), but the chances are that the Justices are not closely familiar with what is available now in the universe of such games.  The briefs on the side of the trade associations make a major effort to acquaint the Justices with the enormous diversity that does exist in that marketplace of ideas.  If that effort succeeds, it could well raise cautionary flags about the difficulty in crafting a definition of video violence that would not seriously curtail this mode of expression — not just for children, but for adults as well.

Posted in Brown v. Ent. Merch., Featured, Merits Cases

Recommended Citation: Lyle Denniston, Argument preview: Kids and video games, SCOTUSblog (Oct. 26, 2010, 4:44 PM), http://www.scotusblog.com/2010/10/argument-preview-kids-and-video-games/