The U.S. Supreme Court heard arguments today in Schwarzenegger v. EMA, a case in which the video games industry seeks to challenge a California law banning the sale of violent video games to minors. California claims that the law, which has never gone into effect, helps parents shield their children from harmful matter, even though ESRB ratings already provide one way for consumers to judge a game's content.
The law seeks to place a large sticker on "objectionable games," banning their sale to those under 18, with large fines for non-compliance. The law has been opposed by the video game industry, not surprisingly. But it's also been positioned as a free speech issue.
The statute in question defines the dangerous content as:
Violent video game means a video game 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 the game in a manner that does either of the following:
(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim. (Cal. Civ. Code § 1746(d)(1) (2009)).
(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.
A Miller Test for Violence?"
The opening lines certainly sound a lot like another famous Supreme Court argument about objectionable speech - the Miller Test - that an "average person" and "community standards" to arbitrating what is and isn't offensive. And as such, if the Supreme Court agrees with the state of California, it means that violent video games are not protected by the First Amendment.
But the Supreme Court Justices seemed to question this argument today. Wondering what the difference between a "violent video game" "deviant violent video game," Justice Scalia asked if the same logic could be applied on a ban of sale of violent comic books to children. "What about Grimms' fairy tales?" asked Justice Ginsberg. "Why are video games special?" Justice Kennedy cautioned against adding the depiction or description of "violence" to the areas that are not protected as free speech.
The line of questioning today and the attitude from the Justices seems to point to a decision in favor of the video games industry, a $10 billion a year. A ruling is expected in June.