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Violent Video Game Supreme Court Case Raises Stakes In America, Sides Sound Off

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The Supreme Court's decision today to hear a case about the potential criminalizing of the sale of violent video games to children sparked divided reactions from the parties in the case and a call to gamers to get informed.


"I think gamers have a lot at stake," Mike Gallagher, head of the Entertainment Software Association told Kotaku today of the law that the state of California hopes to have found permissible by the Supreme Court.

The 2005 California bill, which was signed into law by Governor Arnold Schwarzenegger but has been blocked from taking effect by state courts, would criminalize the sale of violent games to minors.


"It could have a distinct chilling effect," Gallagher said, "on the types of games that are made, the types of games that are marketed, and certainly the types of games that are sold, and how widely available they are. All of those things could be impacted."

The music industry voiced solidarity today with gaming.

"Culture and art thrives on the preservation of the First Amendment. Any law or effort to weaken First Amendment protection of free expression whether in music, film or video games or other creative content is ultimately a harmful thing," said Cara Duckworth of the Recording Industry Association of America.

The other side of this debate, which drafted and supports the California law disagrees about the potential impact and stakes of the case.


State Senator Leland Yee, the Democrat and child psychologist representing San Francisco and San Mateo who wrote the California bill, said that his legislation, was narrowly focused, targeting only the sale of "ultra-violent" video games to children. He predicted that approval of the law would have no impact on what games were made.

"This is not about Leland Yee trying to destroy the industry," Yee said in an interview with Kotaku. "This is not about Leland Yee trying to prevent any of you game [developers] from developing any more atrocious kinds of games. This is a free society. If you have the imagination to do something even more horrible with the technology, then god bless you. That's part of our freedom of expression here in America, but you just have to figure out when it's appropriate and when it's not appropriate. For me, as a child psychologist you ought not be doing it for kids."


Yee's bill (read it here) did not name specific games but described the violent games it would ban from being sold to minors, defining one as a game which:

(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.
(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.
(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.


Yee maintains that he is impressed with the technological development of games but is wary of how the interactivity of the most violent ones impacts children and influences their behavior.

The state senator was backed today by California attorney general Jerry Brown, who petitioned the Supreme Court to hear this case. "It is time to allow California's common-sense law to go into effect and help parents protect their children from violent video games," he said in a statement. (Read excerpts of the Brown petition that swayed the Court and gaming's failed counter-argument to stop it.)


The Supreme Court's decision to hear the case in its fall term keeps the argument about whether states may legislate against violent game going. It does not foretell whether the court will side with the video game industry, which cautions against chilling of speech, or the state of California, which maintains that the interactive nature of games and, in the state's view, the poor effectiveness of game ratings systems puts children at risk from violent video game content that can damage them psychologically.


The video game industry has been on the winning side of legal battles against California and other states for several years, as the research cited by states including California about the impact of games on kids has failed to sway judges. The string of victories has the industry and its allies talking confidently.

"We've successfully argued this case in 12 other courts that these types of laws are unconstitutional and that video games should be treated just like movies, music and other forms of entertainment," the ESA's Gallagher said. We've done that successfully a dozen times and we look very much forward to presenting our case to the Supreme Court and having the court issue a definitive ruling in this matter and putting an end to it."


Gallagher's comments were echoed by Bo Andersen, president of the Entertainment Merchants Association which was the other principal party in the lawsuit that blocked Yee's California bill from becoming law. "EMA obviously would have preferred that the Supreme Court decline review of the lower court decision finding the California video game restriction law to be unconstitutional, he said in a statement. "We are confident, however, that when the Supreme Court conducts its review, it will conclude that the lower court correctly analyzed the law and reached the appropriate conclusion."

As the case proceeds eyes will also be on other entertainment industries to see if they join the video game business or stand aside to see if gaming will be treated as a distinct form of entertainment, subject to different laws about its content.


Concerned gamers were encouraged today to join the ESA's Video Game Voters Network. Among those pushing for it was Madden and Battlefield publisher Electronic Arts. "This is another sign that gamers need to wake up and get organized to protect their rights," EA vice president of public affairs, Jeff Brown, said in an e-mail. "Censorship and content restrictions are a very real threat to video games. Any gamer who has not registered with the ESA's Video Game Voter Network, loses the right to complain when government starts taking games off the market."

Gamers can take other actions too as they prepare for the showdown in the Supreme Court. One colorful one was floated by, of all people, Senator Yee. "You tell the gamers if they do a game about slicing my head off, I'm fine."