In a Supreme Court decision that rocked the video game world yesterday, the Entertainment Merchants Association, and video game developers in general, won a major victory over the State of California. The Brown v. EMA decision has officially protected the legal right of video game developers to sell violent video games to minors (in the U.S., citizens under the age of 18). Broadly speaking, the government enacting a law limiting the sale of violent games would have been a significant act of censorship against video game developers, in a country where other forms of media have no such restrictions. The decision in favor of video game developers has wide-reaching implications and is a reflection of the general climate of gaming in the United States.
Life, Liberty and the Pursuit of High Scores
History
When I heard about the landmark decision, I had just finished playing Grand Theft Auto IV, which is the most recent title of the Grand Theft Auto series. It was a previous title from this series which helped spawn the controversy that would reach the Supreme Court. In 2005, with the PC release of Grand Theft Auto III: San Andreas, certain gamers found resources within the game files that could be turned into a mod, known as the “Hot Coffee Mod.” The mod allowed players to engage in sexually explicit activities within the game. News of the mod reached the media, and politicians, sensing an explosive topic, launched accusations against the video game industry’s ratings board, the Entertainment Software Ratings Board (ESRB), for trying to rate the game as a “mature” (M) title, instead of an “adult only” (AO).
Then California State Assemblyman (now State Senator) Leland Yee became the most vocal figure against video game violence and obscenity, citing the Hot Coffee issue as being one among many issues in video games requiring government attention. In 2005, Yee sponsored AB 1179, a California law prohibiting the sale of violent video games to anyone under the age of 18. Breaking this law could lead to fines of up to $1000. Yee had a background as a child psychologist and argued that the connection between aggressive behavior in children and violent video games voided any First Amendment protection, since such video games were harmful to the mental health of American children.
The Entertainment Merchants Association, a conglomeration of video game developers and retailers, prepared a lawsuit against the state of California. The EMA argued that AB 1179 restricted minors’ First Amendment rights and the connection between aggressive behavior in youths and violent video games was not scientifically verified. In 2007, in the United States District Court for the North District of California, the judge ruled in favor of the EMA, saying that the law was indeed a breach of the First Amendment. In September of 2007, Governor Arnold Schwarzenegger filed an appeal with the Ninth Circuit Court of Appeals arguing that family values needed to be protected, but in 2009, the Court decided the case in favor of the EMA once again. In May of 2009, Schwarzenegger appealed to the highest court in the United States, the Supreme Court.
On November 2, 2010, the Court heard oral arguments from the State of California and from the representatives of the EMA. The arguments centered on the distinction between video games and other forms of media such as literature and film. Justices expressed concern that the interactivity element of video games was not an important enough quality to make games legally distinct from other forms of media.
Exhuberant praise for the decision on Valve’s Steam service, a digital distribution platform for PC games. (FTW = For the Win)
Decision
Finally, on June 27, 2011, the Supreme Court ruled in favor of the EMA. Their official ruling can be found here. In a 7-2 decision, the Court found that the State of California would be infringing upon the First Amendment in an unprecedented and unjustified manner. Justice Antonin Scalia delivered the opinion of the Court.
Scalia first acknowledges that video games meet the criteria for First Amendment protection:
“California correctly acknowledges that video games qualify for First Amendment protection. The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. “Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.” Winters v. New York, 333 U. S. 507, 510 (1948).”
He continues by arguing that video games communicate ideas and social messages through familiar literary devices like narrative structure, characters and music. These qualities qualify video games for the same Free Speech protection conferred upon other forms of media. As such,
“Under our Constitution, “esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000). And whatever the challenges of applying the Constitution to ever-advancing technology, “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary” when a new and different medium for communication appears. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503 (1952).”
Scalia notes that it is not the responsibility of the Government to restrict expression, no matter how unpopular its message, content or ideas may be. There are exceptions to this general rule however. Scalia identifies obscenity, incitement and fighting words as being three forms of expression that can be limited; he is also quick to note that the criteria by which these sorts of cases are defined are clear and leave little room for ambiguity. Vague notions of what is and is not “obscene” have no place in the law, otherwise the First Amendment would be useless in protecting Freedom of Expression.
The State of California wished to define violent video games as “obscene” when viewed by children, but the majority of the Justices considered this inappropriate:
“The California Act is something else entirely. It does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults—and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children. That is unprecedented and mistaken. “[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” Erznoznik v. Jacksonville, 422 U. S. 205, 212–213 (1975)”
In other words, California was outside its rights in trying to apply its own sense of morality to what is fundamentally a legal definition. Scalia argues that California may have had a stronger case were it not for the fact that America has virtually no tradition of restricting American children’s access to violent materials. In fact, the exact opposite is true. Grimm’s Fairy Tales is a classic work of children’s fiction, but is rife with violence on par with that found in video games.
California also tried to argue that video games represent a special case. Video games are distinct from other forms of media because games are interactive. This, according to the Court, is patently false, since literature is an inherently interactive experience. The better the work, the more included the reader feels in the work. Video games are no more interactive than good pieces of fiction.
Justice Samuel Alito was one of the seven Justices finding in favor of the EMA, but his opinion warned of the violent and base nature of certain video games having effects beyond what we currently know today. Justice Scalia responds to Alito’s warnings by arguing that the disgusting nature of a given piece of media is of little consequence.
“JUSTICE ALITO recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. And the same is true of JUSTICE ALITO’s description, post, at 14–15, of those video games he has discovered that have a racial or ethnic motive for their violence—“ ‘ethnic cleansing’ [of] . . . African Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.”
Justice Scalia concludes his observations by saying that if the State of California wants to aid parents in protecting their children from depictions of violence, they must find ways to do it that do not infringe upon First Amendment rights. He writes that he does not mean to demean the real concerns of parents, but the Constitution offers protection for all forms of media, regardless of its content. Violence does not constitute a special case, so video games are to be protected.
Two Justices dissented from the views of the majority. Justice Clarence Thomas argued that children lack the same rights as adults. In the footnote of the court document, Scalia writes:
“JUSTICE THOMAS ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none. Most of his dissent is devoted to the proposition that parents have traditionally had the power to control what their children hear and say. This is true enough.”
Justice Stephen Breyer, on the other hand, argued that the difference between violence and pornography were too severely exaggerated by the Court. Writes Breyer:
“I add that the majority’s different conclusion creates a serious anomaly in First Amendment law. Ginsberg makes clear that a State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most violent interactive video games. But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?”
The decision of the Court brought wide-spread praise from gamers, game makers as well as members of other industries. The Motion Picture Association of America (the organization responsible for the age ratings for films) hailed the decision as a victory for Free Speech. California Senator Leland Yee said that he would review the Court findings and draft a bill within the constitutionality of the decision. The Washington Post’s Editorial Board argued that the decision made no sense because the Court would bar minors from purchasing pornography and yet, would allow them to buy violent games. The Post argues that the video game industry would have to police itself and this was a potentially dangerous situation.
Free at Last? (GTA IV)
Implications
Brown v. EMA represents the government’s most clear statement about the role of video games in society to date. To be clear, this case was not just about a simple law concerning video game sales to minors in the State of California. Let us not forget that video game publishers, in order to distribute their products through most retailers, must go to the ESRB to have their games rated. Now, as the Hot Coffee mod fiasco indicates, no system of ratings can ever be fully effective, especially in video games. Remember that films in the United States are rated by the MPAA, but the task of rating films is far simpler than rating video games. Films are generally only two hours long and simple to judge. Video games on the other hand are rarely less than five hours long and contain much more content than films. Mistakes will be made, but in spite of this fact, the ESRB has done an admirable job rating games. This is because of the close relationship developers have with the ESRB. By maintaining open and honest communication with the ESRB, developers can push their games out the door more efficiently, and the ESRB can do their jobs effectively.
The ESRB has its problems, but it is a helpful organization for allowing parents to decide which games are appropriate for their children to play. Furthermore, most retailers in the United States have enacted voluntary policies which forbid the sale of certain games to certain age groups. This is no different than movie theaters prohibiting twelve-year-olds from seeing R-rated films. Such measures are voluntary actions on behalf of the film and video game industries to assist parents and protect children.
What point is there then in making it illegal for children to buy violent video games when effective self-regulating standards already exist? The truth may be politically motivated. What better way to promote oneself as a bastion of morality and family values than by attacking the dreaded violent video games that are destroying the minds of our youth? By enacting laws that attack violent video games, politicians hope to make a statement, and nothing more. Indeed, if politicians were really trying to effect a change, why make the penalty to distributors selling violent games to minors only $1000? Who would enforce such a law when the police are already burdened by other more serious issues like drug peddling?
The politicians failed and in doing so, the American Court system proved itself to be a defender of First Amendment rights and more importantly (to this blog anyway) video games became the legal equivalents of art and literature. Had the EMA lost this case, video games would have been relegated to a second class form of media akin to pornography. A terrible precedent would have been set, limiting the range of creative expression developers currently enjoy. I do not think that all video games require ultra-violence, but I am glad that developers are free to create and sell their own visions, without compromise due to the law of the land.
Final Words
Video games are a real presence in this world. Dismissing video games as being mere child’s play is a passé and archaic mindset. Games are still a young form of media, but as they mature, the importance of Free Speech in games will become more evident. It will still take time for the average person to mention games and great literary works in the same breath, but we are heading towards that point in our society. Video gaming as an art has achieved a big victory in the United States. They now have the same legal rights as other forms of art.
The rest of our society is slowly coming to the conclusion that games, literature, and film are all cut from the same cloth.
A new era of video game development may soon be upon us.
I, for one, would welcome a video game renaissance.
Cheers,
Kevin
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