Hard to Gauge How Supreme Court Will Rule on Violent Game Battle

Most of the U.S. Supreme Court justices raised enough tough questions for both sides in Schwarzenegger v. Entertainment Merchants Association (EMA) during oral argument Tuesday that it was hard to gauge how most of them will decide in the case, representatives from both sides of the court battle said. But both sides offered an upbeat take on what transpired in the courtroom, saying their attorneys effectively made their cases.

EMA and the Entertainment Software Association (ESA) fought a 2005 California law that would have made it illegal to rent or sell M-rated games to minors under 18. The law said a game under the law would be banned for rental or sale to minors if “a reasonable person … would find” that it “appeals to a deviant or morbid interest of minors.” The law provided a penalty of up to $1,000 per violation. U.S. District Judge Ronald Whyte in San Jose, Calif., ruled that the law violated the First Amendment, and the 9th U.S. Circuit Court of Appeals upheld that decision. The U.S. Supreme Court agreed to review the case.

"I think it went really well,” California State Senator Leland Yee, D-San Francisco, said of the oral argument made by California Supervising Deputy Attorney General Zackery Morazzini. Yee wrote the bill that became California law. “The justices kept asking the question, ‘Well, what’s wrong with giving parents a tool’ to tell their kids ’this is what I think you can see and this is what I think you should not see or play.'” But Yee conceded that some of the justices, especially Antonin Scalia, indicated they thought the definition of a violent videogame that would fall under the law was too vague. “I think that’s something we can … improve upon,” Yee said. “The vagueness issue was something” a few of the judges questioned, he said. But “there was a spirited discussion about the whole issue of parents,” and it sounded like, “at the very least what this court is willing to do is to provide us with a pathway as to how we can in fact have a law that would limit the sale of these ultra-violet videogames to children and withstand the test of a First Amendment challenge.” It may be his bill or “another bill” created after the Supreme Court issues a decision that accomplishes the state’s goal, he said.

Morazzini said violent games fit within the exempted category of obscenity for minors, a category that the Supreme Court first recognized in Ginsberg v. New York. The California law “differs from the New York law at issue” in the earlier case “in only one respect,” and that is that the earlier law “was concerned with minors’ access to harmful sexual material outside the guidance of a parent.” The “deviant level of violence” in certain games is “no less harmful to the development of minors,” he said.

But Scalia asked: “What’s a deviant violent videogame? As opposed to what? A normal violent videogame?” Morazzini said deviant violence would be violence “departing from established norms.” But Scalia asked, “There are established norms of violence?” He said some Grimm fairy tales are quite violent. “Are you going to ban them, too?” Scalia later said “every time there’s a new technology,” one can claim that that violence is worse than prior ones because it’s never been seen by kids before in that form. Scalia later wondered whether California would also want to make it illegal for content to glorify drinking because that could harm minors. “What’s next after violence? Drinking? Smoking? … Are we to sit day by day to decide what else will be made an exception from the First Amendment?” Justice Anthony Kennedy said there’s “been a societal consensus about sexual material” for many years, but no such consensus exists for violent material.

Justice Ruth Bader Ginsburg asked Morazzini if certain material is indeed dangerous to kids, why would a law just stop with games? “What about films? What about comic books?” Justices Elena Kagan and Sonia Sotomayor asked whether California officials would next want to make it illegal for other forms of media, including movies and rap music, to be rented or sold to minors if studies showed that they, too, were harmful to kids. Sotomayor said one of the studies cited by California stated, “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?” But Morazzini said the state had no plan to bar such movies from kids because “cartoons do not depart from the established norms to a level of violence to which children have been historically exposed to.” Morazzini stressed that the California law targeted only games because of the “interactive nature” of the violence in them. The kids playing such games become “the aggressor,” acting out the violent acts depicted in them, he said.

Kagan also asked that Morazzini state “in plain English what morbid violence is,” wondering if Mortal Kombat games would fall in that category. Morazzini cited the law’s three-prong standard, saying a jury would determine what game had morbid violence. But Scalia said he was “concerned about the producer of the games who has to know what he has to do in order to comply with the law. … 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? … I really wouldn’t know what to do as a manufacturer” based on the law, he said. Morazzini seemed to add another layer of confusion to the issue when he said that “some” M-rated games “would be covered” under the law, “but not all."

Justice Samuel Alito raised an objection to the law bundling all minors together. “Isn’t the average person likely to think that what’s appropriate for a 17-year-old may not be appropriate for a 10-year-old or an eight-year-old?” Ginsburg then stressed that California “doesn’t make any distinctions between 17-year-olds and four-year-olds.” Morazzini said juries would be the ones to decide what the standard is for an “average minor.” Scalia sarcastically fired back, “An average minor is halfway between 0 and 18. Is that nine years old?"

But Justice Stephen Breyer later asked game industry lawyer Paul Smith why it wasn’t “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,” then why can’t a state have the right to tell that parent to “go buy it yourself?"

EMA President Bo Andersen thought the oral argument made by Smith “went very well,” he told us. Andersen said he wasn’t concerned by the tough questions that some of the judges had for Smith. “That’s their job -- to dig to the depths on an issue like this,” said Andersen. The comments they made don’t “necessarily reflect how they think the case” should be decided, “so none of those extreme questions bothered me at all,” he said.

ESA President Michael Gallagher also was upbeat about the argument, he told us. “I felt extraordinarily proud of our industry today,” he said. But Gallagher said, “It’s the Supreme Court, so you have to be concerned about all of the comments” made by the justices, although “I absolutely believe that Paul” made the better case. The court has “enormous latitude to fashion a result of their liking,” and the ESA is “very respectful of that,” he said. But he said, “We believe that a clear majority of the justices understood the primary points that we made and asked questions very consistent with those points. We're very hopeful that in several months, we're going to have a strong result, a strong decision from the court that continues to protect parents and families, and the decisions that they make” involving videogame content,” he said.

Game companies “would be discouraged” to create any games that could possibly fall under the vague definition of violent games created by the law, Gallagher later said in a conference call with reporters. The law could also impact other forms of media, not just games, he argued.

The court seemed to be against creating a new obscenity exception to the First Amendment, based on the justices’ comments,” Smith said in the conference call. Scalia seemed to be especially reluctant to take such a step, Smith said. But Smith said it was “very difficult” to gauge how the court will rule. For one thing, he said, Alito and Chief Justice John Roberts, in particular, raised the notion that the interactive nature of videogames presented a “challenge” because that made it different than other forms of speech and other forms of media. Echoing Smith, Ken Doroshow, ESA senior vice president and general counsel, said there was “no way to know how this is going to come out.” The only Supreme Court justice who asked no questions of the lawyers and made no comments was Clarence Thomas, making it impossible to even guess what he thought about the issue.

About 40 pro-gamers rallied outside the Supreme Court building Tuesday. Among them was Usiel Phoenix, a 17-year-old board member of the National Youth Rights Association who said she doesn’t even play videogames. There was “a larger issue at stake” than just videogames, she said, calling the California law another government attempt to take away the rights of young people. She compared it to the efforts made against older forms of media and even pinball in the 1970s. “This is not a matter of protecting small children,” she said. “No toddler is going to accidentally make his way to a videogame store with $50 in his pocket and ask to purchase the latest Halo.” The law will “only affect those minors with the maturity and independence to make their way to a videogame store and purchase the game of their choice,” she said. “The underlying philosophy of this law is that there is something inherent” to people under 18 “that causes them to sustain severe psychological damage from playing videogames, and this is an assumption that the science simply does not support,” she said. “If I cold vote I would vote against these people who would stray so far from the founding principles of our nation and” create “needless censorship,” she said.

Gamers Greg Collier, dressed as Mario from Nintendo’s games, and Lisa McKee of Delaware each said they came out to support the game industry because the California law was an attack on gamers’ rights. McKee called gaming a “career choice” for her, saying she was majoring in computer science at Delaware State University.