Monday's Expected Supreme Court Decision Will Tell America How Much Free Speech Protection Video Games Deserve

Illustration for article titled Mondays Expected Supreme Court Decision Will Tell America How Much Free Speech Protection Video Games Deserve

Monday will be a day that could radically change the status of video games in the United States. We're expecting the Supreme Court of the United States to finally issue a ruling, based on arguments they (and we) heard back in November, about whether the state of California can make it a crime to sell extremely violent video games to children.


The case is now called Brown vs. EMA, (formerly, Schwarzenegger vs. EMA) and involves California's attempt to enforce a law written by State Senator Leland Yee, a Democrat representing San Francisco, in 2005 that would criminalize the sale of hyper-violent games to kids (not all M-rated games, per se, but only certain types, as defined in the law.) The law would require new labeling on games sold in California and carry a $1,000 fine to those found in violation of the law.

If the Court rules for California, it will be overturning a half decade's worth of decisions in lower courts that said that California's law violated the First Amendment protections of the freedom of speech.

Illustration for article titled Mondays Expected Supreme Court Decision Will Tell America How Much Free Speech Protection Video Games Deserve

State senator Leland Yee (D-Calif.) on the steps of the Supreme Court on Nov. 2, 2010, the day of oral arguments. (Photo: Kotaku)

If the Court rules against California, it could still direct the state on how to write a law that would criminalize the sale of games to kids without violating the Constitution. But a complete ruling against the state would be the biggest win yet for the gaming industry's ongoing battles against mostly Democratic governors and legislators who have argued that violent video games are harmful to kids in ways that violent movies and music are not.

A win for California would separate video games from music, movies, books and all other forms of entertainment in the United States. While music, movies or books that are considered sexually obscene are illegal for everyone in the U.S., only certain types of non-obscene sexual content can be made illegal for minors on a state-by-state basis (states can and do make it a crime to sell dirty magazines to kids, for example). No other medium is subject to a legal check on extremely violent content in the U.S., so the criminalization of selling hyper-violent video games to kids would be a first for any form of entertainment in America. A movie theater might be breaking its own rules if it sells a ticket for an R-rated movie to a minor, but it's not breaking the law. In theory, selling a copy of Postal 2 to a kid would become a crime.


The video game industry, led by the ESA, or Entertainment Software Association—a lobbying group funded by big game publishers that also runs E3 each year—has argued that games should be treated like other forms of entertainment. California has argued that games, because they are interactive, have a unique ability to agitate a child's mind and potentially spark aggressive behavior in the child.

California contends that, should it win, children will be safer. The gaming industry's chief advocates contend that speech will be chilled and that retailers and game creators will be compelled to react by selling and producing less edgy content.


We're expecting a decision shortly after 10 a.m. EDT on Monday. Expect full coverage of the decision here on Kotaku.

To read more about the case, check out our prior coverage, including a blow-by-blow of California and the gaming industry's arguments to the Supreme Court as well as highlights of the most contention parts of those arguments, as the justices hit both sides with some hard questions.


We also have a primer that explains the law, the players involved and the half-decade of history about this battle that the gaming industry, so far, has been winning across the country.


Nine people will decide how video games fit into America's First Amendment. Is the violent video game on store shelves near you the equivalent of a bloody-minded novel or a copy of Hustler? We expect to find out on Monday.

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... Wait, so parents could still buy the games and give them to their children?

EDIT: So I've looked at that AB 1179 bill.

"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 (who?), considering the game as a whole, would

find appeals to a deviant or morbid interest of minors.

(ii) It is patently offensive to prevailing standards in the

community (sounds like an appeal-to-majority fallacy) 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 (wasn't this the same argument used against "porn?" What do you do about games like Mass Effect or even Halo where the themes used in the storyline can be dissected and studied in light of our own world?).

I hate to be legalistic, but what about games where you only fight monsters or demons or whatever? The enemies in Dead Space (for example) could hardly be humanized like fighting terrorists in a war game, but they still bleed all over the place.

"However, this liability shall not apply to any person who violates those provisions if he or

she is employed solely in the capacity of a salesclerk or other, similar position and he or she does not have an ownership interest in the business in which the violation occurred and is not employed as a manager in that business."

So ... if you're just a regular Gamestop employee, you won't have to pay the $1000 anyway??