California Bill to Restrict Sale of Violent Videogames to Minors Argued in US Supreme Court

By Garnett Lee, Nov 02, 2010 5:30pm PDT The long-running legal process over California's bill to restrict the sale of violent games to minors entered the homestretch today in a hearing before the United States Supreme Court. Mr. Zackery Morazzini opened the oral argument for the position of Governor Schwarzenegger by introducing the idea of a connection to the 1968 Supreme Court ruling in the case of Ginsberg v. New York. In that case the court ruled against a shop owner who sold "girlie" magazines to two minors. The finding held that the government could prohibit access by minors to sexually explicit material that would not be illegal for adults. Mr Morazzini argued, "California is no less concerned with a minor's access to the deviant level of violence that is presented in a certain category of video games that can be no less harmful to the development of minors."

As Morazzini asked the court to adopt a rule of law similarly restricting the sale of "deviant, violent video games," Justice Scalia interrupted him to ask what constituted deviant violence as opposed to "normal" violence. Justice Scalia then noted that Grimm's fairy tales are quite violent and asked whether they should be banned. Justice Ginsberg then interjected, "What's the difference? I mean, if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm's fairy tales? Why are video games special? Or does your principle extend to all deviant, violent material in whatever form?"

After more discussion of other forms of entertainment, including the violence in cartoons such as Bugs Bunny, Justice Sotomayor asked where there was a tradition of the court regulating violence. Morazzini responded, "Your Honor, California submits that when the rights of minors are at issue and not the rights of adults, the standard should be more flexible. The Constitution should recognize that when the audience is minors the same standard should not apply. Therefore, the question should not be whether or not historically violent speech was regulated, but whether or not the Constitution guarantees minors a right."

Not long after, Justice Scalia would say, "I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence." After Justice Alito joked that Justice Scalia wanted to know James Madison's opinion on video games, Justice Scalia replied, "No, I want to know what James Madison thought about violence. Was there any indication that anybody thought, when the First Amendment was adopted, that there--there was an exception to it for--for speech regarding violence."

Mr. Paul Smith presented the position for the respondents. In his opening remarks he said, "California, as we have heard today, does not seriously contend that it can satisfy the usual First Amendment standards that apply to such a law. Instead it's asking this court to grant it a new free pass, a brand-new Ginsberg-like exception to the First Amendment." Mr Smith would later state, "my position is that there is not a violence exception to the First Amendment for minors and there should not be."

When called to address the contention that there was no exception being asked for and that the challenge stood as a traditional strict scrutiny First Amendment test, Smith offered this response: "they have not shown any problem, let alone a compelling problem, requiring regulation here in a world where parents are fully empowered already to make these calls, where crime, including violent crimes, since the introduction of these games has been plummeting in this country, down 50 percent since the day Doom first went on the market 15 years ago; in a world where parents are fully aware of what's going on in their homes and aware of the ratings system and can use all the other tools that we have talked about."

In pressing both sides to validate their argument the court gave little indication as to how it will ultimately rule. While they pressed Mr. Morazzini on the matter of creating an exception to the First Amendment, they were equally probing of Mr. Smith as to why games with behavior such as torturing children couldn't be defined and restricted from sale to minors. This eventually led to Mr. Smith taking the difficult position that there is nothing the state can do "to limit minors' access to the most violent, sadistic, graphic video game that can be developed." While many lean to the court confirming First Amendment protection for video games and ruling in favor of the EMA and ESA, strong arguments on both side make the outcome unsure until we hear the final decision of the court which should be forthcoming.

Read our previous stories on the case: ESA Urges Gamers to Join the Video Game Voters Network in Fight Against Proposed California Law, Judge Declares California Violent Game Bill Unconstitutional, Schwarzenegger Vows Revenge, Violent Games Bill One Step Away

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11 Threads | 24 Comments
  • Nice article Garnett. I think I would disagree that the court gave little indication as to how it will rule in this case. It seems to me that all of the Justices except maybe Breyer are ready to vote to strike this law down for one reason or another. They may agree that minors buying violent videogames is a problem, but it seems clear that they don't think that this California statute is not the way to solve it.

    As an aside, I thought it was interesting that nobody even questioned the idea that video games are "speech" within the meaning of the 1st Amendment. It seems that it would be intuitive to gamers that games are "speech" in the same way that movies, or books are,, but I wasn't so sure that the members of the Court would be so easily convinced. I guess it says something about the cultural cache that video games have these days.

    Finally, I think you guys should do a dramatic reading of selected portions of the transcript on the comming Weekend Confirmed. I think Brian Lehey would make a good Scalia, and Jeff Canata is a natural Stephen Breyer.

  • I loved the part where the attorney for CA was asked if CA had a board for the judging of games as deviantly violent and it was answered that they did not. So it was humbly suggested that perhaps they needed one, which they could call something like the California Board of Censorship.

    Haha. So true. Because that's what this amounts to. Censorship.

    Did the state ever really prove why video games should be held to a higher standard than any other media? Pointing to studies where there are as many for as against and having only a vague idea of how to enact this law (getting a jury for each game post-release, wtf?) really hurt their chances.

    Meanwhile, the industry's side merely has to deal with the issue of people who think it seems LOGICAL (without definitive proof to back up said logic) that games might hurt children's development. Said "logic" of course ignores the fact that violence (and sex for that matter) are a part of the human condition and have been so for the collective history of our race. If it hurt children, we would not have made it this far.

    In short, if parents have a problem with a particular item, they need to stop reading this online msg and get parenting. The government has better things to do than make laws to protect my kids from threats I (and many others) don't see as threats. Especially when the dangers of games being sold to minors are minor and there is already a system that catches most of the sales and prevents them already in place. Most importantly, THAT system is not being funded by the taxpayers.

  • Nice summary Garnett...

    Scalia also said the following, "...Are we to sit day by day to decide what else will be made an exception from the First Amendment? Why is this particular exception OK, but the other ones that I just suggested are not OK?"

    The real issue is if the supreme court really wants to get into the business of drawing the line of in the pissing on the person, the hitting them on the head with the shovel, or the plot that involves picking up a hooker is where the line on the First Amendment should be drawn.