Who Argues Violent Video Games Are Like Porn, And Who Disagrees

It is the season for battling in the Supreme Court about whether it should be a crime to sell very violent video games to children. No such law exists for other forms of entertainment. Who is for? Who is against?

Should very violent video games be illegal to sell to kids, the way certain kinds of pornography can be?

Do you side with the co-creator of the Fantastic Four? Or do you side with the former Governor Moonbeam?

Do you agree with the agreeing id Software and Activision Blizzard? Or are you a Common Sense Media kind of person?

Are you allied with the attorneys general Arkansas, Georgia, Nebraska, North Dakota, Oklahoma, Puerto Rico, Rhode Island, South Carolina, Utah and Washington or those of California, Connecticut, Florida, Hawaii, Illinois, Louisiana Maryland, Michigan, Minnesota, Mississippi, Texas and Virgina?

What Are They Arguing About?

Hordes of powerful people and advocacy groups have filed their arguments to the United States Supreme Court in advance of November 2 showdown between the State of California and the video game industry.

In the first case involving video games to ever reach the highest court of the United States, California will attempt to convince the Supreme Court what it has failed to successfully argue to the lower courts: That a 2005 law that would make it a crime to sell very violent games — those that lack artistic value — to minors does not violate the freedom of speech guaranteed in the First Amendment to the U.S. Constitution.

The California law has been blocked from taking effect for five years due to successful legal challenges by the video game industry.

For a medium-length version of California's take, read Kotaku's July summary of the state's argument to the Supreme Court about why the high court should overrule the lower courts' decisions. The state basically argues that extremely violent games can harm minors, that it should not be required to prove direct causation and that — this is key — if states can (as they are) be allowed to criminalize the sale of some sexual content to minors that is legal for adults then they should be afforded the same ability to do so with very violent content.

This is the short version: One of California's favorite targets, Postal 2, is held up by the state as the kind of game that it thinks a retailer should be fined $1,000 for selling to a kid.

Who Is With California?

Louisiana! And .. Connecticut, Florida, Hawaii, Illinois, Louisiana Maryland, Michigan, Minnesota, Mississippi, Texas and Virgina.

These states attorneys general, including the one trying to maintain a Democratic seat in the senate against the former CEO of World Wrestling Entertainment, have filed a brief in support of California. This brief reminds the Supreme Court how low games have sunk in a couple of decades:

In 1975, a cutting-edge video game console allowed players to bounce an electronic ball back and forth on a television screen by rotating small knobs. This was Pong.1 Things had changed by
2003. That year, a popular game called Postal2 invited players to:
• Burn people alive with gasoline or napalm;
• Decapitate people with shovels and have dogs fetch their severed heads;
• Beat police to death while they beg for mercy;
• Kill bald, unshaven men wearing pink dresses (in an "expansion pack" called Fag Hunter);
• Slaughter nude female zombies;
• Urinate on people to make them vomit;
and,
• Shoot players with a shotgun that has been silenced by ramming it into a cat's anus.
Postal2 is made by a company called Running With Scissors, which promotes the game with the tag line: "[R]emember … it's only as violent as you are!"

The makers of Postal likely never intended its hyperbolic violence to be taken seriously. Ten-year olds,
however, may fail to grasp the satiric content in an exploding cat.

These states are prepared for naysayers. They are ready for the people who will cry that the California law supports a view of America that neuters art and chills speech by making laws against anything that's bad for the children.

Don't worry, grown-ups, the states argue:

The California law... simply restricts minors' unmediated commercial access to certain graphically violent video games. But it prevents no adult from buying or renting such games. It does not even stop minors from playing them. Rather, the law helps ensure that parents- and not the marketplace-ultimately decide whether their children play a game, such as Postal2, in which players are encouraged to urinate on their victims before burning them alive.

Shouldn't parents get this help? Look, Louisiana and friends say, noting that states can make it a crime to sell porn to kids:

Parents, in other words, have just as keen an interest in guarding their children from Postal 2 as from Penthouse, and laws like California's may help them do so.

What Would Thomas Jefferson Think?

Also in the corner of California is Common Sense Media the family values advocacy group that dares to image what great 18th century American men would have thought of the likes of Postal:

There is no historical evidence or any other support for the proposition that the Framers or the founding generation would have recognized a constitutionally protected right for children to purchase violent video games.

The Common Sense Folks are with California in asserting that there is an "impressive body of scientific literature [that] confirms the validity of the State's interests in protecting juveniles from exposure to images that can have profound impact on their behavior and development." We recognize juvenile's minds as being still in development, the group says.

Protect the kids? The group quotes philosophers such as John Locke, who is worried about children rejoicing in the harm of others, and then from an 1808 letter from Thomas Jefferson to his then-16-year-old grandson: "Be very select in the society you attach yourself to, avoid taverns, drinkers, smokers, idlers and dissipated persons generally."

Yeah, But Why Video Games? Are They Really Worse Than Other Things?

The writers of the California law suppose games are, compared to movies and books, more damaging to kids' minds because they are interactive. Defenders of video games might grant that, yes, games are more involving than other forms of entertainment.

But California also has one extreme ally in the Eagle Forum Education & Legal Defense Fund which goes way past the Golden State to argue to the Supreme Court that "Video games are role-playing activities that do not constitute free speech."

Furthermore, game-playing is dangerous, the Eagle Forum contends:

Does playing violent video games lead to aggressive or violent behavior? Yes, and nearly as much as the other major indicator of youth violence: gang membership. Playing violent video games ranks almost as high as gang membership as the number one tell-tale sign among youth for a propensity to commit violence. See Violent Video Game Effects, infra, at 143 (utilizing for comparison purposes data from a 2003 report by the U.S. Department of Health and Human Services).

Playing violent video games is a far bigger risk factor than other familiar indicators of youth violence. For example, playing violent video games is three times greater as a risk factor for aggressive/violent behavior than engaging in substance abuse, being from a broken home, having a low IQ or even having abusive parents. Id. Playing violent video games is nearly two times greater as a risk factor for aggressive/violent behavior than having a record of prior violence or being a large consumer of media violence.

That's an extreme argument that Calfornia itself does not appear to back. It has not denied that video games are speech.

The Cali Tally: There are four briefs supporting California: the three quoted above, as well as one from California state senator Leland Yee, a child psychologist and author of the law. (Read the full original texts of all the pro-California arguments here.)

Will Anyone Stand Up For Video Games?

On September 10, the Entertainment Software Association, the lobbying group that runs the E3 gaming convention every year and will argue against California before the Supreme Court, filed its official response in advance of the November 2 hearing. It characterized California's law as "the latest in a
long history of overreactions to new expressive media."

Arguing that games are "a modern form of artistic expression," rattling off usage states and dollars earned, quoting the New York Times' review of Red Dead Redemption, and praising the industry's own ratings system, the ESA is basically saying, games are great and grown-up and do not deserve to be treated differently than other forms of entertainment.

The ESA goes after the helping-parents-out part of the California argument:

Parents certainly have the right to determine what expression they want their minor children to experience. But that parental prerogative does not give the government the right to decide what is worthy for minors to view.

The ESA also attacks the argument that laws that make the sale of certain kinds of sexual content illegal for minors should allow similar blocks on violent content. They go back to Ginsberg vs. New York, the same case cited by California but parsed differently by the gaming industry:

Ginsberg held only that the scope of the category of sexual obscenity – already a recognized category of unprotected expression – might vary as between minors and adults. Ginsberg did not hold that other categories of expression, entirely protected as to adults, could be restricted for minors.

Moreover, the State's analogy to obscenity fails because depictions of violence, unlike obscenity, have played a longstanding and celebrated role in expression properly consumed by minors, from Greek myths to the Bible to Star Wars and Harry Potter. A new exception for depictions of violence would threaten access to these materials. California's assertion that it will regulate only "offensive" depictions of violence compounds the First Amendment problem, as "offensiveness" will invite viewpoint discrimination, with depictions of violence committed by malefactors rather than "good guys" being deemed offensive.

The gaming industry asks: Do you know what happens when you start legislating against violent speech? Then you are arguing that high schoolers maybe shouldn't read Ovid. The gaming industry then quotes from Ovid's Metamorphoses to remind us of the kind of violent content children are exposed to (assuming children do their homework and read their Ovid):

The princess willingly her throat reclin'd,
And view'd the steel with a contented mind;
But soon her tongue the girding pinchers strain,
With anguish, soon she feels the piercing pain: . . .
In vain she tries, for now the blade has cut
Her tongue sheer off, close to the trembling root.
The mangled part still quiver'd on the ground,
Murmuring with a faint imperfect sound: . . .
The piece, while life remain'd, still trembled fast,
And to its mistress pointed to the last.

The gaming industry complains that the California law is unreasonably vague about which games it would cover, scoffs at California's assertion that there is scientific evidence that shows violent games can be harmful to kids and, in an effort to say, hey these violent games do have artistic value, tosses in a New Yorker quote about Uncharted 2 being a ""visual glory hallelujah of a game."

Fine, But What Does Activision Think?

More than 25 parties have filed briefs with the Supreme Court to argue that the gaming industry is in the right here and the California is in the wrong. Among them is Activision Blizzard, which focuses on the official video game ratings board and says, you know, these ratings are terrific at keeping kids from buying very violent games:

Without conceding that video games cause any harm, Activision Blizzard submits that current statistics – including those from studies commissioned by the FTC – demonstrate that children cannot easily purchase violent video games and that California can easily advance its goals by supporting the existing ESRB system.

Oh, and they add that California need not worry about the really bad games because no government blockage is needed for a type of content already censored by the industry itself. The equivalent of X-rated games — AO-rated games — won't be sold to California kids because: "most
retailers do not stock or sell AO-rated games and console manufacturers will not certify them."

Let's Hear From The People Who Made Doom

The people at id Software, filing a brief in support of the gaming industry of which the Doom-maker is a part, see the aforementioned quote from Ovid and raise it with some quotations of Homer. The first amendment protects Homer's bloody Iliad, Id argues, The question then arises how a video game with the same expressive characteristics can somehow lose commensurate protection."

Id doesn't then just start quoting positive write-ups of Doom, but it gets into the action of quoting the New York Times about gaming's artistic potential. The id brief spends many paragraphs defending violent content, but also goes after the assertion that games are more problematic than other forms of entertainment because they are interactive:

Nor is video games' status as interactive a reason to deny them full protection. For one thing, with the advent of the DVD, film is no longer necessarily passive. A viewer may choose to watch the same scene many times in a row, or skip scenes he or she does not like.

Postal: The Movie vs. Postal: The Game

The attorneys general of Arkansas, Georgia, Nebraska, North Dakota, Oklahoma, Puerto Rico, Rhode Island, South Carolina, Utah and Washington also have made their case, filing a brief in support of the gaming industry.

These states view the California law as a violation of the first amendment, saying, among other things:

There is little sense in restricting the sale of Postal the game, while allowing the same
minor to purchase Postal the movie.

The standout argument in these states' brief is that the permission of the California law "may unintentionally turn a baseless 'twinkie defense' into an increasingly functional criminal defense." The Twinkie line refers to the attempt of the defense for a man named Dan White to claim that his murder of two San Francisco politicians in 1979 was due to an intake of sugary foods. The states in this brief fret that allowing the California law would essentially allow more people to blame video games for their actions, as it would codify the idea that video games are distinctly capable of triggering bad behavior.

If this Court accepts California's argument that games encourage and cause violent behavior in impressionable youth, this will function as a nationwide signal that appropriate criminal prosecutions just got more difficult to procure.

The Anti-Cali Tally: There have been 27 briefs filed to support the video game industry, including briefs by the American Civil Liberties Union, Microsoft, the Comic Book Legal Defense Fund, the Motion picture Association of America, the music industry, reporters groups and others. (Read the full original texts of all the anti-California arguments here.)

California vs. The Gaming Industry... The Supreme Court will hear both sides out on November 2.


Read Kotaku's full coverage of California's legal battle with the video game industry to criminalize the sale of violent games to kids.