Violent Video Games and the First Amendment: The Supreme Court Decides

Today, the U.S. Supreme Court will hear arguments in Schwarzenegger v. EMA, a case that challenges California’s 2005 law banning the sale of “violent” video games to minors.  The law has yet to take effect, as rulings by lower federal courts have found the law to be an unconstitutional violation of the First Amendment.

There’s little doubt that banning the sale of nearly any content to adults violates the protections of Free Speech, including, as decided last year, video depictions of cruelty to animals.

But over the years the Court has ruled that minors do not stand equal to adults when it comes to the First Amendment.  The Court has upheld restrictions on the speech of students in and out of the classroom, for example, in the interest of preserving order in public schools.

And in the famous Pacifica case, the Court upheld fines levied against a radio station for airing the famous George Carlin monologue that, not-so-ironically, satirizes the FCC for banning seven particular words from being uttered over the public airwaves.

The basis for that decision was that children could be negatively influenced from hearing such language.  And children have easy access to radio and TV, while parents had no effective way to keep particular broadcasts out of the house.

In today’s argument, California’s legal arguments center largely on another case, the Supreme Court’s 1968 decision in Ginsberg.    There, the Court upheld state restrictions on the sale of pornography to minors, even though the material was protected speech for adult purchasers.

In Schwarzenegger v EMA, California is urging the Court to extend Ginsberg’s reasoning to include content that meets it definition for violent video games.  The statute defines “violent video games” as those “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”

Ginsberg, the state argues in its brief, upheld a ban the sale of sexual content to minors because such content is dangerous to their development.  So too, they argue here, with violent video games. (Parents and other adults, of course, could still buy the games for minors if the statute were to go into effect.)

Indeed, the state argues that such material has as much if not more of a negative impact on the development of children than does sexual material.

That, of course, is a question open to considerable debate.  After the fact, the state cites a number of academic studies that find a correlation between violent video game exposure (including games, such as Super Mario Brothers, well outside the the California definition) and anti-social behavior.  But, as excellent reply briefs from the Entertainment Merchants Association and a joint brief from the Electronic Frontier Foundation and the Progress and Freedom Foundation point out, the methodology in these studies has been roundly criticized.

Moreover, California doesn’t seem to understand that the statistical significance of a correlation does not necessarily translate to real-world behavior—correlation is not the same as causation, no matter how strong the statistics.  And even the authors of the studies most relied on by the state recognize that it isn’t clear in which direction the correlation moves—are children who play violent video games more likely to have violent thoughts because they played the game, or are pre-existing violent thoughts what attracts them to the games?

Why Video Games?  Why Now?

The Court may focus on those studies in its decision, but I have a different question.  Why are California and other states picking on video games, and why now?  That, to me, is the more interesting problem, one that gets little attention in the briefs and, I would guess, in the Court’s eventual decision.

Perhaps the why is obvious:  as EMA’s brief points out, similar attacks have accompanied the rise in popularity of every new form of media to emerge throughout U.S. history.

The California statute … is the latest in a long history of overreactions to new expressive media. 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.

The EFF/PFF brief goes farther, accusing California legislators of succumbing to “moral panic, as lawmakers have so often done when confronted with the media of a new generation.”

Examples as varied as Greek classics, the Bible, the Brothers Grimm and Star Wars all suggest, EMA points out, that extreme--even gruesome--violence has always been a favorite subject of literature, often aimed specifically at children.  As federal appellate judge Richard A. Posner wrote in rejecting a similar Indiana law, “Self defense, protection of others, dread of the ‘undead,’ fighting against overwhelming odds—these are all age-old themes of literature, and ones particularly appealing to the young.”

But why now?  The answer is, not surprisingly, Moore’s Law.  Laws regulating the content or distribution of video games are a classic example of the conflict I described in The Laws of Disruption.

As technology has made video game graphics more realistic and lifelike, they have captured the attention—and here the nightmares—of regulators in the real world who equate what they see on the screen with behaviors that would clearly violate laws and norms of the real world.  They don’t like what they see in games including Grand Theft Auto and Resident Evil, and their impulse is to find a way, somehow, to stop it, even if it’s only a simulation.

It was not that long ago—in my life time, in any case—that video games were still in their Neolithic Era.  Consider Pong, the first home video game from Atari in 1975.  It would take an imagination greater than mine to think of the batting of a block of monochrome pixels by a bar of pixels to be violent enough to corrupt youth; likewise the breaking of a wall of pixels one at a time in the follow-on game Breakout.

But a few years later, consider the commercial (courtesy of YouTube) for Activision’s ice hockey game.

The game promises to be one of the “roughest” video games ever, “battling for the puck” with “fierce body checking” and “ruthless tripping.”  Just watching the players fight it out drives a meek-looking Phil Hartman into a frenzy; within a few seconds he seems ready to attack the clerk who teases him that he’s not yet ready for it.

But despite an ad that explicitly suggests a connection between playing (or even watching the game) and becoming violent, the actual graphical quality of the violence is so disconnected from visual reality that it never occurred to any state legislature to ban or otherwise restrict it.

Now fast-forward just a few short decades later to the imminent release of Xbox 360’s Kinetics and one of the games that takes advantage of it called Kinectimals.

Using Microsoft’s new sensor technology, realistically-rendered animals can be controlled simply by issuing voice commands or by mimicking the desired movements by standing in front of the images.  It hardly seems possible that the same beings who invented Pong could have advanced to Kinectimals within the span of one human lifetime.  But we did.

Coupled with new 3D technology and increasingly large, high-fidelity displays, video games have in the course of only a few decades and a few cycles of Moore’s Law, advanced to the point of challenging the cinematic qualities of movies.  Indeed, games and films are converging, and now use much of the same technology to produce and to display.  A new sub-genre of user-produced content involves taking the cinematic interludes within the games and using them to produce original films.  After all, video game users today not only control game play but also lighting, camera angles, and point of view.

Why not?  As Nicholas Negroponte would say, bits are bits.

So now that video games offer fidelity in imagery and movement that is comparable to film, the law has awakened to both their positive and negative impacts on those who interact with them.  Since the First Amendment clearly doesn’t allow interference with the sale of violent content to adults, California focused on children.  But it’s clear from the tone of the state’s brief that they just plain don’t like certain video games, just as they didn’t like certain movies and certain books in an early age of mass-market technologies.  As before, they would like, if they could, to turn the clock back.

Of course that is always the response of the law to new technologies that challenge our conceptions of reality.  The only difference between the comic book burnings of the 1950’s and the emotional responses of legislators today is the speed with which those new technologies are arriving.  The killer apps come faster all the time.  And with them, the counter-revolutionaries.

Frozen in Time, Lost in Relevance

Which is why the California statute suffers from another common and fatal flaw of laws attempting to hold back new technologies:  early obsolescence.  Even if the Supreme Court upholds the law, its effect will be minimal at best.

Why?  Lost in the legal arguments (and reduced to a mere footnote in the EMA brief) is the impending anachronism of the California statute.  It assumes a world, disappearing almost as quickly as it arrived, in which video games are imported into California as physical media in packages, and sold in retail stores.

Consider, for example, Section 1746.2:

Each violent video game that is imported into or distributed in California for retail sale shall be labeled with a solid white "18" outlined in black. The "18" shall have dimensions of no less than 2 inches by 2 inches. The "18" shall be displayed on the front face of the video game package.

But sales of video games in media form are rapidly declining as broadband connections make it possible for game developers and platform manufacturers to transport the software over the Internet.  So even if the law is ruled constitutional, it will apply to an ever-shrinking portion of the video game market.  There will soon be no “retail sale” and no “front face” of a “package” onto which to put a label in the first place.

These industry changes, of course, aren’t being made to evade laws like California’s.  Digital distribution reduces costs and eliminates middlemen who add little or no value (the retailers, the packagers, the truckers).  More to the point, they allow the companies to establish on-going relationships with their customers, which can be leveraged to selling add-on chapters and levels, on-line play, and the sale of related product and content, including films and movies.

The industry, in other words, is not only evolving in terms of sophistication and realism of the product.  The same technologies are also scrambling its supply chain.  And what is emerging as the new model for “games” is something in which California and other states have almost no regulatory interest.

So it seems an odd time to target legislation at a particular and disappearing version of the industry’s content and retail channels.  Even if the Court upholds the California law, it will likely have little impact on the material at which it is aimed.

But that’s often the case with laws trying to manage the unpleasant social side effects of new technologies just as they become visible to the outside world.  The pace of legal change can’t hope to keep up with the pace of technological change, making this law, like many others, out-of-date even before the ink is dry.

Which is not to say that the Supreme Court’s decision in this case won’t matter.  Another feature of statutes like this, unfortunately, is a high likelihood of unintended consequences.  The potential for the Court’s decision—pro or con--to do mischief in the future, however, to unrelated industries and dissimilar content, is legion.

For example?  As the EFF/PFF brief points out, California and other states may try to extend the ban on sales to minors to online channels.  But it isn’t so easy to determine the age of an online buyer as someone in your brick-and-mortar store.  “Applying the law online would likely require mandatory age verification of all online gamers because the law prohibits any sale or rental to a minor,” EFF/PFF argues, “even if the vendor had no evidence that the buyer was a minor.”
That feature of an earlier federal effort to control pornography online was the undoing of the statute.

But in the Supreme Court, and the lower courts who interpret its decisions, anything can happen, and usually does.