Under the U.S. Supreme Court: Getting a legal grip on violent video games

By MICHAEL KIRKLAND  |  June 12, 2011 at 3:30 AM
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WASHINGTON, June 12 (UPI) -- California should find out any day now whether its law forbidding the sale of sometimes grotesquely violent video games to minors has survived a constitutional challenge in the U.S. Supreme Court.

The central issues in the case, even on the surface, are pretty meaty.

-- Whether the First Amendment allows restrictions on "offensive" content in violent video games sold to minors, and

-- Whether the state law banning the sale of games with offensive images to children falls if it fails to pass "strict scrutiny," the toughest standard of review by the courts.

Beyond those core questions, however, the case raises issues about the type of society we are building.

There would be no question about the constitutionality of the law if it restricted the sale of sexual images to minors, as opposed to violent ones. California asks, why the difference?

Do violent, sometimes outlandishly violent games viewed by children contribute to the growing coarseness and danger in American society? Some medical specialists believe that it does.

But when government imposes censorship, no matter how valid the reasons, does it clamp a "chill" on types of expression far beyond the targeted speech? Media groups supporting the challenge say that it does.

Meanwhile, Americans spend more than $10 billion a year on video games, and more than two-thirds of U.S. households have at least one player of video games, the industry says.

The challenge to the California law comes from the Entertainment Merchants Association and the Entertainment Software Association, representatives of the industry that could suffer significant harm in the form of reduced sales if the law is upheld.

The case was argued before the justices in early November.

The law is a section of the California Civil Code that prohibits "the sale of violent video games to minors under 18 where a reasonable person would find that the violent content appeals to a deviant or morbid interest of minors, is patently offensive to prevailing community standards as to what is suitable for minors, and causes the game as a whole to lack serious literary, artistic, political or scientific value for minors."

The law provides for a penalty of as much as $1,000 per violation -- sale of a violent video game to a minor -- but the penalty applies to businesses and managers, not sales clerks or anyone who does not have an ownership interest in the business.

California told the Supreme Court in a brief that in enacting the law the "Legislature sought to reinforce the right of parents to restrict children's ability to purchase offensively violent video games. In doing so, the Legislature considered numerous studies, peer-reviewed articles and reports from social scientists and medical associations that establish a correlation between playing violent video games and an increase in aggressive thoughts and behavior, anti-social behavior and desensitization to violence in both minors and adults."

The Legislature also considered the "Federal Trade Commission's report that the video game industry specifically markets M-rated (Mature) video games to minors, that 69 percent of 13- to 16-year-old children were able to purchase M-rated games and that only 24 percent of cashiers asked the minor's age."

Just how violent are the games targeted by the law?

In its brief, the state cites an unnamed game that involves "shooting both armed opponents, such as police officers, and unarmed people, such as schoolgirls. Girls attacked with a shovel will beg for mercy; the player can be merciless and decapitate them. People shot in the leg will fall down and crawl; the player can then pour gasoline over them, set them on fire and urinate on them.

"The player's character makes sardonic comments during all this; for example, urinating on someone elicits the comment 'Now the flowers will grow.'"

A federal judge, citing the First Amendment and using "strict scrutiny," declared the state law unconstitutional and issued a permanent injunction barring its implementation. Violence cannot be considered unprotected speech under the First Amendment without the element of sex, the judge said, even when the restriction is applied to minors.

There are three types of judicial review in determining whether government action is constitutional -- rational basis, intermediate and strict scrutiny. Strict scrutiny, the toughest standard, is usually used in First Amendment disputes.

The judge also said the state had failed to show a "causal relationship" between video games and violent behavior, and even if the state had a "compelling interest" to protect minors from violent video games, the law was not the "least restrictive" way to do so -- a requirement under strict scrutiny.

A federal appeals court agreed with the judge, and California asked the Supreme Court for review in an attempt to save the law.

In its brief to the high court, California argued, "Whatever First Amendment value these games may possess for adults, such games are simply not worthy of constitutional protection when sold to minors without parental participation. There is no sound basis in logic or policy for treating offensively violent, harmful material with no redeeming value for children any different than sexually explicit material."

Moreover, "In doing so, the (law) does not impinge upon the rights of adults, as it was deliberately structured to accommodate parental authority over minors while leaving access by adults completely unfettered." If parents want a minor to have a specific violent video game, they can buy it themselves.

Rather than strict scrutiny, California wants the Supreme Court to review the law under the standard set by 1968's Ginsberg vs. New York: "Under the Ginsberg standard, the act must be upheld so long as it was not irrational for the California Legislature to determine that exposure to the material regulated by the statute is harmful to minors."

In addition, "The First Amendment does not require states to demonstrate proof of a direct causal link between violent video game play and harm to minors," California said in its brief. Instead, even under strict scrutiny, "a proper application of this level of review requires that the state Legislature draw reasonable inferences based on substantial evidence."

The challenging associations, of course, see things quite differently.

"The California statute at bar is the latest in a long history of overreactions to new expressive media," the associations say in their brief. "In the past, comic books, true-crime novels, movies, rock music and other new media have all been accused of harming our youth. In each case, the perceived threat later proved unfounded. Video games are no different. They are a widely popular form of expression enjoyed by millions of people. As such, under the First Amendment, they cannot be censored absent the most compelling justification, based on firm evidence of harm, through a narrowly tailored statute where there is no less-restrictive alternative.

"California asks the (Supreme) Court to withdraw First Amendment protection from some ill-defined subset of video games, at least as to minors, based on the same sort of unsupported claims that animated past efforts to regulate new media," the brief adds. "This court should reject California's dangerous proposal."

The associations argue, "Unlike explicit sexuality, violence is not and never has been a taboo subject for children. It is therefore impossible to craft statutory language that adequately demarcates the line between violence that is 'appropriate' for minors and violence that is not. This court should decline California's invitation to create a new and potentially boundless exception to the First Amendment ...

"Video games are a modern form of artistic expression."

Scores of friend-of-the-court briefs have been filed in the case.

A brief filed by the American Academy of Pediatrics and the California Psychological Association, among others, says, "Science confirms that violent video games are harmful to minors," citing testimony before Congress by "national experts, medical and mental health professional associations and others, the gist of which is that there is a significant relationship between exposure to media violence and aggressive behavior, and that repeated exposure leads to general increases in aggressiveness over time."

But a coalition including The Motion Picture Association of America, Lucasfilm Ltd., the Directors Guild of America, the Screen Actors Guild and other organizations in the media says in its friend-of-the court brief: "If this (Supreme) Court were to hold that California's statute is valid, it would have a dramatic chilling effect on the motion picture industry," now self-regulated. "If the court's reasoning is not confined to the particular medium of video games, state and local governments could attempt to impose similar restrictions on depictions of violence in other media, including motion pictures. Such restrictions would have an obvious chilling effect, particularly given the inherent amorphousness of restrictions of that type and the potential for a patchwork of nationwide regulation."

Rhode Island, Arkansas, Georgia, Nebraska, North Dakota, Oklahoma, Puerto Rico, South Carolina, Utah and Washington state filed a brief in support of the challengers, saying there is no reason to "burden law enforcement with video game censorship responsibility."

Louisiana, Connecticut, Florida, Hawaii, Illinois, Maryland, Michigan, Minnesota, Mississippi, Texas and Virginia filed a joint brief in support of California. The states offer what they see as more evidence of the problem.

"In 1975, a cutting-edge video game console allowed players to bounce an electronic ball back and forth on a television screen by rotating small knobs," the states said. "This was Pong1. Things had changed by 2003." That year, a popular game called Postal2 invited players to:

-- Burn people alive with gasoline or napalm;

-- Decapitate people with shovels and have dogs fetch their severed heads;

-- Beat police to death while they beg for mercy;

-- Kill bald, unshaven men wearing pink dresses (in an "expansion pack" called Fag Hunter);

-- Slaughter nude female zombies;

-- Urinate on people to make them vomit;

-- And shoot players with a shotgun that has been silenced by ramming it into a cat's anus.

"The makers of Postal2 likely never intended its hyperbolic violence to be taken seriously," the brief says. "Ten-year-olds, however, may fail to grasp the satiric content in an exploding cat."

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