SCotUS Weighs in On CA Videogame Law
On June 27th, the United States Supreme Court handed down a decision in the long-suffering Brown vs. ECA case -- the California statute that was going to impose penalties on retailers who sell violent videogames to minors (transcripts of oral arguments and other goodies available here). The decision holds that the law violates the First Amendment and permanently enjoined it from being enforced. Gamers everywhere breathed a sigh of relief and let out fist-pumping WOOT!
But that is only a beginning. Now that some of the furor has died down over the decision, it's a good time to take a look at what it means in the greater context of things.
I was talking with my boss about it. He's a lawyer, and we were discussing not only the decision itself, but the way it came down. Anytime the court goes 7-2 with the First Amendment to strike down a state statute, it's a red-letter day no matter which side of the beef you're on. They didn't just give us the usual 5-4 split along partisan lines. In legal circles, 7-2 isn't viewed as merely a decision -- it's a statement which essentially says (in his words), "We're done with this issue. Don't anyone bother bringing it back until two of us are dead."
The assenting opinions are fun reading but the dissents, provided by Justice Thomas and Justice Breyer, are interesting in their own right.
Justice Thomas' dissent consists mostly of a long, windy discussion of how the Founding Fathers raised their children. It's not as irrelevant as you might think. He's trying to over-set all the rulings since then that have stated that children are afforded the full protection of the 1st and 14th Amendments in their own right, except in very narrowly defined and structured rules about obscenity. I found it funny that he was going on about the sovereignty of parental authority, while suggesting that the government should take over part of it.
You also have to have a concrete, demonstrated reason for limiting their rights. For example, the Tinker v. Des Moines Independent Community School District, 89 S. Ct. 733, 393 U.S. 503 (U.S. 02/24/1969) case was about some kids getting in trouble for wearing protest armbands against the Vietnam War to school. Wearing protest symbols is considered protected speech outside of school. The court ruled the school could not infringe on their rights just because the school authorities were afraid of unspecified trouble caused by the armbands. Paragraph 29 of that case is particularly pointed. The last sentence reads, "..., in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Or, in the assent, Scalia cites U.S. v. Playboy (529 U.S. 803), which says the State must identify an "actual problem" in need of solving.
Breyer's dissent should be familiar to most of us. It's pretty much a restatement of Yee and even old Jack Thompson's themes. He starts off trying to shoe-horn the California statute into the obscenity definitions in Gisburg v United State (383 U.S. 463) and Miller v. California (413 U.S. 15) by the simple measure of changing the word "obscenity" to "violence". I always chuckle when they still use a description of Custer's Last Stand as an example of game design possibilities.
Then he tries to haul in the science. Unfortunately for him, not only does Justice Scalia throw those specific scientific studies right out in his holding as not providing causal evidence, even the people who did those studies have been lauding the decision. I wouldn't get too happy with them, though. Reading the text of the article reveals that once they tossed a bone to the Constitution in the beginning, the rest is just a re-framing of their same old arguments. And considering their actions in signing on with their colleague Dr. Yee and their submitted documents to the court, I'm not buying their Olympic-level backpedal. But it does bring up a question. How is Senator Yee, a child psychologist himself, going to prove there's a problem when even his colleagues in the field refuse to back him up?
California's version of the law has a deeper problem. I find the actions of Senator Yee and others in the psychiatric field even more disingenuous. It's ironic that the same people who are trying to limit a kid's access to content by making their parents purchase it for them have no problem keeping parents from having any control over or even knowing whether or not their child is receiving medical care. The medical age of consent varies from state to state, but I can tell you that in Washington State, it's 14. That means that unless it's defined as an "emergency" a 14-year-old with a diagnosed mental illness has complete control over whether or not he takes his medications, and whether or not he receives treatment in a hospital. He has to sign a Release of Information for his parents to even know he's IN a facility, even though they're still liable to pay for it. In California, 12-year-olds are considered able to give informed consent. So a 12-year-old can get tested for AIDS or check into a hospital without telling his parents, but if he buys an M-rated game by himself the State should be alarmed. What the heck?
Things aren't cut-and-dried; both sides use some of the same arguments. Like Scalia's holding, Justice Breyer goes on to point out the whole artificial divide between games and other media caused by the current interpretation of Ginsberg. Only Scalia used it to point out that the law doesn't cover any of that and thereby shouldn't be upheld, and Breyer is using it as an excuse to impose the law. As Breyer stated, "But what sense does it make to forbid selling a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?"
And I have to admit I agree on the face of it. The dichotomy is there. But Justice Breyer apparently doesn't trust parents to raise their children, and he really doesn't understand the ESRB and it's relationship to retail game sales all that well. Even without the victim being topless as he went on to stipulate, any game that contained that content would receive an AO rating and be extremely limited thereby. No console platform would even run the game because the companies that make them don't allow AO games to pass their certification processes. Stores would voluntarily require I.D. for the purchase just like the California law stipulated, if they would even sell it at all. Just like Super Columbine Massacre (which is described but not named in the decision), it would be limited to online sales and not any of the big online stores.
I think it'll be important to also talk about what this means on a cultural level. Sure, this means good things for voluntary industry regulation systems like the ESRB, and for whoever wants to make the next ultra-violent game, but it also is SCotUS agreeing that games are a medium, not just a product. Even if they never say "games are art," saying "games are a creative medium" certainly implies that games can be art. I don't think Mr. Ebert is taking his artistic cues from Antonin Scalia. But if that guy has picked up on it, then you can bet that Mr. Ebert's take on the whole topic isn't as popular even with the older age group as he might think.
Some people did take a hint. Rep. Michael Morley, the Utah congressman who was trying to get a similar law passed, has announced that in the wake of this decision he's not going to continue pushing his.
But a lot of the usual suspects are still at it. A Catholic Bishop got up on the pulpit this weekend denouncing the law as "wrong" and contributing to "poisoning our future." Organizations like Common Sense Media and Focus on the Family didn't vanish because of this. I don't know how he'd do it, but Senator Yee is insisting that he's going to continue the fight. And read properly, the decision itself is somewhat of a road map to writing a law that might actually get past these guys. Who knows?
This a good step forward, but we're not out of the woods yet, folks. I'm not sure we are going to be until the next new thing gets blamed for everything that video games gets blamed for now.