Highlights Of Today's Big Supreme Court Video Game Case

PublishedNovember 2, 2010

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This morning's Supreme Court hearing about video games was full of feisty exchanges about free speech and protecting kids. Plus, we got a Mortal Kombat reference. Some highlights.

Grimm Start

California deputy attorney general Zackery Morazzini, staring oral arguments:The California law at issue today before this Court differs from the New York law at issue in Ginsberg in only one respect. Where New York was concerned with minors' access to harmful sexual material outside the guidance of a parent, California is no less concerned with a minor's access to the deviant level of violence that is presented in a certain category of video games that can be no less harmful to the development of minors.
When this Court in Ginsberg crafted a rule of law that permits States to regulate a minor's access to such material outside the presence of a parent, it did so for two fundamental reasons that are equally applicable this morning in this case.
First, this rule permits parents' claim to authority in their own household to direct the upbringing and development of their children; and secondly, this rule promotes the State's independent interest in helping parents protect the wellbeing of children in those instances when parents cannot be present.
So this morning, California asks this Court to adopt a rule of law that permits States to restrict minors' ability to purchase deviant, violent video games that the legislature has determined can be harmful to the development -
Justice Antonin Scalia: What's a deviant — a deviant, violent video game? As opposed to what? A normal violent video game?
Morazzini: Yes, Your Honor. Deviant would be departing from established norms.
Scalia: There are established norms of violence?
Morazzini: Well, I think if we look back -
Scalia: Some of the Grimm's fairy tales are quite grim, to tell you the truth.
Morazzini: Agreed, Your Honor. But the level of violence -
Scalia: Are they okay? Are you going to ban them, too?
Morazinni: Not at all, Your Honor.
Justice Ruth Bader Ginsburg: What's the difference? mean, if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm's fairy tales?
Why are video games special? Or does your principle extend to all deviant, violent material in whatever form?
Morazinni: No, Your Honor. That's why I believe California incorporated the three prongs of the Miller standard. So it's not just deviant violence. It's not just patently offensive violence. It's violence that meets all three of the terms set forth in -
Chief Justice John Roberts: I think that misses Justice Ginsburg's question, which is: Why just video games? Why not movies, for example, as well?
Morazzini: Sure, Your Honor. The California legislature was presented with substantial evidence that demonstrates that the interactive nature of violent — of violent video games where the minor or the young adult is the aggressor, is the — is the individual acting out this — this obscene level of violence, if you will, is especially harmful to minors. It -
Kagan: Suppose a new study suggested that movies were just as violent. Then, presumably, California could regulate movies just as it could regulate video games?
Morazzini: Well, Your Honor, there is scientific literature out there regarding the impact of violent media on children. In fact, for decades, the President, Congress, the FTC, parenting groups, have been uniquely concerned with the level of violent media available to minors that they have ready access to.
Justice Sonia Sotomayor: I don't think; is that answering Justice Kagan's question? One of the studies, the Anderson study, says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?
Morazzini: No —
Sotomayor: There are people who would say that a cartoon has very little social value; it's entertainment, but not much else. This is entertainment.
I'm not suggesting that I like this video, the one at issue that you provided the five-minute clip about. To me, it's not entertaining, but that's not the point. To some it may well be.
Morazzini: Justice Sotomayor, cartoons do not depart from the established norms to a level of violence to which children have been historically exposed to.

Which Games And Why?

Justice Elana Kagan: Mr. Morazzini, could I take you back to Justice Scalia's original question, which was what counts as deviant violence or morbid violence. Because I read your briefs all the way through and the only thing that I found you said that was clearly covered by this statute was Postal 2. But presumably the statute applies to more than one video game. So what else does it apply to? How many video games? What kind of video games?
I mean, how would you describe in plain English what morbid violence is, what you have to see in a video game for it to be covered?
Morazzini: Okay. Justice Kagan, I would go back to the language of the statute, and the statute covers video games where the range of options available to the player includes maiming, killing, dismembering, torturing, sexually assaulting, and those types of violence. So I would look to games where -
Kagan: So anything that has those kinds of violence counts?
Morazzini: No, and then we would move to the three prongs of the Miller [obscenity] standard, Your Honor. We would look to see -
Kagan: Well, so how do we separate violent games that are covered from violent games just as violent that are not covered?
Morazinni: Well, Your Honor, I think a jury could be instructed with expert testimony, with video clips of game play, and to judge for themselves whether -
Scalia: I'm not concerned about the jury judging. I'm concerned about the producer of the games who has to know what he has to do in order to comply with the law. And you are telling me, well a jury can — of course a jury can make up its mind, I'm sure. But a law that has criminal penalties has to be clear. And how is the manufacturer to know whether a particular violent game is covered or not?
Morazinni: Well, Your Honor -
Scalia: Does he convene his own jury and try it before — you know, I really wouldn't know what to do as a manufacturer.
Morazinni: Justice Scalia, I am convinced that the video game industry will know what to do. They rate their video games every day on the basis of violence. They rate them for the intensity of the violence.

What Would James Madison Think?

Justice Anthony Kennedy: Let me just make one comment on that point. It seems to me all or at least the great majority of the questions today are designed to probe whether or not this statute is vague. And you say the beauty of the statute is that it utilizes the categories that have been used in the obscenity area, and that there's an obvious parallel there.
The problem is, is that for generations there has been a societal consensus about sexual material. Sex and violence have both been around a long time, but there is a societal consensus about what's offensive for sexual material and there are judicial discussions on it. Now, those judicial discussions are not precise. You could have had the same questions today with reference to an obscenity statute, and we have — we have said that, with reference to obscenity there are certain — that there are certain materials that are not protected. Those rules are not precise at the margins and some would say not precise in a more significant degree as well.
But you are asking us to go into an entirely new area where there is no consensus, no judicial opinions. And this is — and this indicates to me the statute might be vague, and I just thought you would like to know that — that reaction.
Moarzzini: Justice Kennedy, as with sexual — the regulation of sexual material and obscenity, we had to start somewhere. California is choosing to start now. We can build a consensus as to what level of violence is in fact patently offensive for minors, is deviant for minors, just as the case law has developed over time with sexual depictions. Your Honor, I believe the key is the similarities violence has with sex.
Scalia: What about excessive glorification of drinking, movies that have too much
drinking? Does it have an effect on minors?
I suppose so.
I — I am not just concerned with the vagueness.
I am concerned with the vagueness, but I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence.
You are asking us to create a — a whole new prohibition which the American people never — never ratified when they ratified the First Amendment. They knew they were — you know, obscenity was — was bad, but — what's next after violence? Drinking? Smoking? Movies that show smoking can't be shown to children? Does — will that affect them? Of course, I suppose it will.
But is — is that — are — are we to sit day by day to decide what else will be made an exception from the First Amendment? Why — why is this particular exception okay, but the other ones that I just suggested are not okay?
Morazinni: Well, Justice Scalia, I would like to highlight the fact that the material at issue in Ginsberg was not obscene. Under no existing definition of obscenity was the partial nudity that this Court allowed States to regulate minors' access to -
Justice Samuel Alito: Well, I think what Justice Scalia wants to know is what James Madison thought about video games. [Laughter] Well, I think what Justice Scalia wants to know is what James Madison thought about video games.

Turning The Heat Up On The Gaming Industry

Paul Smith, attorney representing the video game industry, beginning his remarks: The California law at issue restricts the distribution of expressive works based on their content. California, as we have heard today, does not seriously contend that it can satisfy the usual First Amendment standards that apply to such a law. Instead it's asking this Court to grant it a new free pass, a brand-new Ginsberg-like exception to the First Amendment that would deny constitutional protection to some ill-defined subset of expressive works, and I submit not just video games, but necessarily movies, books and any other expressive work that describes or portrays violence in a way that some court somewhere, some day, would decide is deviant and offensive.
Chief Justice John Roberts: What about the distinction between books and movies may be that in these video games the child is not sitting there passively watching something; the child is doing the killing. The child is doing the maiming. And I suppose that might be understood to have a different impact on the child's moral development.
Smith: Well, Your Honor, it might. The State of California has not marshalled a shred of evidence to suggest it's true. And if you look at the social science -
Roberts: What was the state of the record that was present before the Court in Ginsberg?
Smith: The state of the record was that they were aware of science on both sides and made a judgment that as a matter of common sense they could decide that obscenity, even somewhat at-large obscenity —
Roberts: So the Court acted on the basis of common sense?
Smith: Yes. It said as long as there is science on both sides, but in that particular area, which is an exception based — that goes back to the founding, they felt that it was proper for them to adjust the outer boundaries of the exception.
Ginsburg: But the material wasn't obscene. They were girlie magazines, I imagine to today's children they would seem rather tame, the magazines involved. But they were definitely not obscene with respect to adults.
Smith: Your Honor, that's certainly true. But one of the things about the case that is important to recognize, is they didn't pass on the particular material before the Court. They simply said, is this somewhat larger definition of variable obscenity going to be acceptable to -
Justice Stephen Breyer: Talking about common sense, why isn't it common sense to say that if a parent wants his 13-year-old child to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence upon small children and women and do this for an hour or so, and there is no social or redeeming value, it's not artistic, it's not literary, et cetera, why isn't it common sense to say a State has the right to say, parent, if you want that for your 13-year-old, you go buy it yourself, which I think is what they are saying.
Smith: Well, Your Honor, the State has to have some reason to think that parents -
Breyer: It does, it does. What it has is — and I have looked at the studies, perhaps not as thoroughly as you. But it seemed to me that Dr. Ferguson and Dr. Anderson are in a disagreement. They aren't in that much of a disagreement actually, but they have looked in depth at a whole lot of video games, not movies they are talking about or other things; they are talking about video games.
And both groups come to the conclusion that there is some tendency to increase violence. And the American Psychiatric — Psychological Association, the American Pediatric Association, sign on to a long list on I think it is the Anderson side that this does hurt children.
I have to admit that if I'm supposed to be a sociological expert, I can't choose between them. If I
And both groups come to the conclusion that there is some tendency to increase violence. And the can say could a legislature have enough evidence to think there is harm, the answer is yes.
Smith: There is two aspects of harm. The one I was about to address was the question of whether parents need additional help in exercising the role that they have played throughout the history -
Breyer: Yes. They need additional help because many parents are not home when their children come home from school. Many parents have jobs, we hope. And when their children are there, they do what they want. And all this says is that if you want that gratuitous torture of, let's say babies, to make it as bad as possible, what you do, parent, is you go buy it; don't let him buy it on his own, and he's 13 years old. Now, what's the common sense or what's the science of that?
Smith: Well, two aspects. With respect to parental controls, Your Honor, there is a whole variety — a whole series of things that parents have available to them and are using today to deal with any concerns they have about what's appropriate for their children.
Roberts: I don't want to interrupt your answer, but any 13-year-old can bypass parental controls in about 5 minutes.
Smith: That is one element of about five different elements, Your Honor. If I could talk about — there is the ratings. Parents are doing the purchasing 90 percent of the time. Even if the child does the purchasing, they bring the game home, the parent can review it.
The game is being played in the home on the family television or computer most of the time. Any harm that is supposed to be inflicted on them is supposed to take place over a period of years, not minutes, so the parent has ample opportunity to exercise parental supervision over what games are being played in the house. Plus there is the parental controls, which are similar to the ones that the Court has found to be significant in the Playboy case, in the COPA case, a whole variety of cases.

How About A Lesser Law Against Violent Games?

Roberts: ... the tenor of much of the questioning, I think, is that there may be games and may be minors -maybe a less violent game sold to a 17-year-old, perhaps that violates the First Amendment, but something like Postal 2 sold to a 10-year-old might well — might well not violate the First Amendment to apply this law to that.
Smith: Well, that may be -
Roberts: And the way we approached the issue in Stevens, where we had hunting videos and crush videos, would say that it's too broad to apply the law to everything, so we strike it down, it's overbroad, but leave open the possibility that a more narrowly-drawn statute might pass muster.
Why isn't that a good approach here?
Smith: You certainly could do that. Certainly, the key thing is if you strike down this law, because this law is clearly much broader than any one game, I would submit to you, though, that there is no way that, in fact, anybody is going to be able to come back and draw a statute that gets to what they claim, because the English language is not susceptible at that level of precision.
Breyer: It's not susceptible. Throughout you have been arguing your point, which is fair. You have some experts who favor you and you make that point very strongly, and your point's a pretty good one and a serious one, that it's very hard to draw this line under traditional First Amendment standards. But I would like you to deal with their point for a moment. And I take it their point is: There is no new First Amendment thing here.
There is a category — call them X — which really are involving things like torturing children, et cetera. Maybe you don't like to sell them to anybody. You have an X or some special thing. But they exist, and they fit within a Miller-type definition. They are much worse than the simple girlie magazine that was involved there, and they will use traditional First Amendment tests. That is to say, there is speech at issue, that speech is being limited, it is being done for a good reason, compelling interest — namely, this problem with the X videos and the torture and living it through — and there is no less restrictive alternative that isn't also significantly less effective.
See, I want you to deal with that directly, because what you have been doing for the most part is saying we would have to be in some new, total new area, et cetera. But their argument is you don't have to be in some totally new area, et cetera; apply traditional First Amendment standards and we win. That's their argument and I would like to hear what you have to say about that, specifically.
Smith: Your Honor, they do not suggest that there is any existing exception to the First Amendment that would apply to -
Breyer: This is not an exception. It is the traditional strict scrutiny First Amendment test.
Smith: Well, they make a feint at trying to argue -
Breyer: Let's — to get you to focus on it, I'll say I've made the argument.
Smith: There you go, okay. Your Honor, I think if you apply strict scrutiny here they do not come close to the kind of showing that would be required under — under the First Amendment.
First of all, they have not shown any problem, let alone a compelling problem, requiring regulation here in a world where parents are fully empowered already to make these calls, where crime, including violent crimes, since the introduction of these games has been plummeting in this country, down 50 percent since the day Doom first went on the market 15 years ago; in a world where parents are fully aware of what's going on in their homes and aware of the ratings system and can use all the other tools that we have talked about.
Justice Sonia Sotomayor: But they have plenty of evidence that -
Kennedy: Why couldn't you make the same arguments with respect to the obscenity statutes?
Smith: Well, Your Honor, because obscenity doesn't have strict scrutiny applied to it. If it did, I expect you could make the same arguments, if there -
Kennedy: Why shouldn't violence be treated the same as obscenity?
Smith: Well, because first of all we don't have the same history of it. There is no historical pedigree of that kind of an exception. And as I was suggesting earlier, there is a fundamental difference factually, which is Ginsberg works tolerably well because we take everything that's sexually explicit and appeals to a prurient interest and we say over here, it is not appropriate for minors.
Violence would require you to draw a much different line between acceptable protected violence and unacceptable unprotected violence for minors, and given the lack of historical pedigree but also just given the nature of what you are trying to do -
Kennedy: Well, the Court — the Court struggled for many, many years and to some extent is still struggling with obscenity. They came up with basically what we might call the Miller standards, and — and the State has said this gives us a category that we can work with, with reference to violence.
Smith: And if you take the Miller standards and you take two thing out of it, you take out of it explicit sex and nudity, and you take out an appeal to prurient interest, what do you have left? You have left — what you have is a structure with no apparent meaning. There is no way to know how a court would apply a standard like deviant violence, morbid violence, offensive violence, let alone decide which video games have a redeeming social, political. Artistic value. The value of a video game is completely in the eye of the beholder. Some would say they are beautiful works of artistic creation; others would say -
Kennedy: You can make all those arguments with reference to obscenity.
Smith: Except that you know — we know, we all know at least with respect to Ginsberg — adult obscenity I would acknowledge is a very difficult line. Adult — Ginsberg works reasonably well, because if it has sex in it and naked people having sex in it and it's designed to be appealing to people's prurient interests, you don't give it to minors and you don't have a lot of cases out there about that.

And Now, For Some Mortal Kombat...

Justice Kagan to California's Morazzini: You think Mortal Kombat is prohibited by this statute?
Morazzini: I believe it's a candidate, Your Honor, but I haven't played the game and been exposed to it sufficiently to judge for myself.
Kagan: It's a candidate, meaning, yes, a reasonable jury could find that Mortal Kombat, which is an iconic game, which I am sure half of the clerks who work for us spend considerable amounts of time in their adolescence playing.
Scalia: I don't know what she's talk about.
Morazzini: Justice Kagan, by candidate, I meant that the video game industry should look at it, should take a long look at it. But I don't know off the top of my head. I'm willing to state right here in open court that the video game Postal II, yes, would be covered by this act. I'm willing to guess that games we describe in our brief such as MadWorld would be covered by the act. I think the video game industry —
Sotomayor: Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?
Morazzini: No, it wouldn't, Your Honor, because the act is only directed towards the range of options that are able to be inflicted on a human being.
Sotomayor: So if the video producer says this is not a human being, it's an android computer simulated person, then all they have to do is put a little artificial feature on the creature and they could sell the video game?
Morazzini: Under the act, yes, because California's concern, I think this is one of the reasons that sex and violence are so similar, these are base physical acts we are talking about, Justice Sotomayor. So limiting, narrowing our law here in California, there in California to violence — violent depictions against human beings.

Sotomayor: So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven't been maimed and killed forever. Just temporarily.
Morazzini: I would think so. The intent of the law is to limit minors' access to those games.