Very few people could have foreseen video games gracing the chambers of the U.S. Supreme Court, but it happened last week. The case, Schwarzenegger v. Entertainment Merchants Association, is the state of California’s latest attempt to curtail minors’ access to violent entertainment. But it is not an isolated case: Depending on the ruling, it could significantly change the First Amendment rights of all minors, substituting censorship for common sense.
The Supreme Court agreed to hear the case after a lower court struck down the California law in question. Assembly Bill No. 1179 was written by now-California State Senator Leland Yee to prevent the sale of violent video games to kids under age 18. The legal arguments revolve around three questions. One: How California defines a violent video game in comparison to how current law defines them. Two: Are video games protected speech under the First Amendment? Three: Is the law unconstitutional – meaning, should California be allowed to supersede normal parental protection of their own kids and their access to free speech?
California defines violent video games as those in which the player has a “range of options, including killing, maiming, dismembering or sexually assaulting another human being.” And as it relates to minors, the state also contends that a game is violent if it “appeals to a morbid interest, is patently offensive to the prevailing community standards, or lacks any artistic value.” Bill 1179 stupidly expands that definition to add “cruel, serious physical abuse, and torture.” So, basically anything a person would play could be considered offensive, thus effectively killing thousands of kids’ favorite pastime. Having an unconstitutional and vague definition of something is not the proper way to enact a law when it has such serious implications. Are we really going to play the censorship game, California?
Legal precedent is loose for this case, and it’s unlikely that the Court will defer to it in their final ruling. One 40-year-old case, from New York, Ginsberg v. New York, established that minors couldn’t purchase “sexually obscene” material, with the purpose of being an aid to parents in protecting kids. That’s all well and good, but the Court must realize that this is different territory. As Justice Anthony Kennedy said during the proceedings, “You’re asking us to go into an entirely new area where there is no consensus.” There may not be consensus, but the common sense argument weighs heavily against California. Responsible parents are the best protection for kids, because they know their own children better than the state ever could.
Common sense already prevails in the video game industry. The Entertainment Software Ratings Board already rates games that minors shouldn’t play – but of course parents are free to buy them for their kids. Retailers have voluntary policies that require identification to be shown when purchasing mature-rated software. The industry polices itself – there is no need to throw another layer of prohibitions on top of it just to appease some overreacting legislators.
The danger to the rights of minors comes from lumping video games in with “sexually obscene” material, as is defined in the Ginsberg precedent. That sets a slippery precedent. “[Minors] like gore,” Justice Antonin Scalia said. “They may even like violent kids.” This is a First Amendment case before it is a case in social conduct, and I can’t get behind a law that wants to restrict access to video games, even though they are not a protected form of speech, it would hinder their existence in their current free form.
The Supreme Court justices also have a larger issue to consider. If it rules in favor of California, it is diminishing video game companies’ revenue significantly. It would be disappointing if developers suddenly pulled back the large-scale marketing of M-rated games because of a restricted consumer base.
When the Supreme Court ruling comes later this year, the justices should heed the common sense and constitutional argument and throw out Assembly Bill No. 1179. Upholding the free speech rights of minors and maintaining a yield to parents is the best position to take. The Court should not set a dangerous precedent with this case. The law in question is also intentionally vague and risks wiping out any wiggle room the video game industry has in selling its products. I never thought I’d see video games in front of the Supreme Court, and on this stage they need to be defended, not censored. It’s common sense.
Kevin Bunkley is a graduate student in the MPS Journalism program.
