SCotUS Weighs in On CA Videogame Law

The Seal of the Supreme Court of the United States

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.


It's worth pointing out that this was very nearly a 5-4 decision. The only thing keeping it from that is the concurring opinions of Justice Alito and Justice Roberts. What makes it so interesting is that Justices Alito and Roberts state that while they concur with the opinion of the court, they do not concur on the matter of the broader 1st Amendment issue. Here's the relevant quote:

Concurring Opinion wrote:

Respondents in this case, representing the video-game industry, ask us to strike down the California law on two grounds: The broad ground adopted by the Court and the narrower ground that the law’s definition of “violent video game,” see Cal. Civ. Code Ann. §1746(d)(1)(A) (West 2009),is impermissibly vague. See Brief for Respondents 23–61.Because I agree with the latter argument, I see no need to reach the broader First Amendment issues addressed bythe Court.1

In other words, while they feel the end result is correct, they disagree with the methodology in getting to that point, which means that had California narrowed the scope of what a violent video game actually is, this could have been a 5-4 decision against, with two dissenting opinions as opposed to a 7-2 decision with one dissenting and one concurring.

But with that said, I concur with the spirit behind the law, although not so much with its' existence. The gaming industry needs to start taking a few more leads from the movie industry when it comes to sales of M-rated games to minors. While I realize that there has been a solid push in recent years among retailers to ensure sales to minors are restricted, and I myself have been carded on several occasions while buying M-rated games despite being nearly 30 when it's happened, it is still easier for kids to buy Grand Theft Auto than it is for them to see Grand Theft Auto or buy a soundtrack that could be considered of what you do, or can do, while playing Grand Theft Auto.

This is something that parents tend to bristle at, and when parents(who vote) get that way, lawmakers tend to react so as to appear that they have their constituents fears at heart, and the result is, generally speaking, bills such as this one.

With all that said, I do find the opinion of the court compelling, in that they acknowledge that to be the push of this law; it is the state dictating to parents what their children are or are not allowed to purchase, which I agree wholeheartedly is the realm of parents. However, the MPAA, through the CARA, has privatized this exact thing. So even though it is parents who are non-affiliated with the MPAA making those decisions, most theaters will generally restrict the sales of tickets fairly heavily to minors, and as with games I have actually been carded for access to several movies, although in those cases I was actually too young to see them by the rating, and was subsequently denied access.

Lastly, I am a filthy skimmer, because I wrote this all after missing the bit at the bottom where you mentioned that the concurring opinion could be a road map to passing a similar law.

Sometimes I just think the ESRB (and even the RIAA) should have just paid whatever to the MPAA and used the same rating system. It's been around a while, everyone understands it, and it seems like a solid bracketing between child, teen, and adult.

The fact that this law was ever proposed and case went so far is still baffling to me. It just seems like people who don't play games don't get that the games are already rated, and that most stores already enforce policy. If the games were just rated PG13 and R and handled as such, maybe they'd get it?

AnimeJ wrote:

[...] it is still easier for kids to buy Grand Theft Auto than it is for them to see Grand Theft Auto or buy a soundtrack that could be considered of what you do, or can do, while playing Grand Theft Auto.

This FTC sting operation report begs to differ.

Hans Dannik

I think that, rather than limiting what retailers can sell to children under 18, the government should be limiting what parents can let their children watch. When children under 18 watch things their parents don't want them to watch, the primary fault is always with the parents for poor supervision and management.

If parents want the government to do their parenting for them, then just tackle the problem directly. Maybe they can lobby for parenting houses where they can drop off the kids they don't have the time to care for.

I confess that I don't quite understand the entire point of laws like this and rating systems, other than as informational aid for parents to use. Once the law gets like what this proposal sounds like, that goes beyond aid.

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.

hey! hey! not all psychs agree with him. I'm a psych and I don't agree with this law. Like monitoring R rated movies, this is primarily a parent responsibility. If you don't know what your kid is doing in YOUR house, I don't know what to say... but I don't see why gov't has to get knee deep in this.

I understand if the parent doesn'tt catch it as the teen buys it and walks it into the house. I'm sure that's coming for me as well... but video games aren't a fire and forget sort of deal. They get played for hours. I think its reasonable to suggest that I should and would be aware of what games they're playing and can pull the plug after-the-fact and have a nice conversation with my teen about what is and isn't acceptable for them. Like the movie "Natural Born Killers", GTA V can wait when they are adults.

I also understand if there's a information / knowledge gap about appropriate content in video games. But there isn't. There's a clearly visible rating system on each game. Mature, AO, etc.

There should be parity in the way the video game industry is treated with other industries... what about the movie industry? Does the theatre get penalized when a 15 y.o. goes unaccompanied to an R movie?

If not, that's b.s. to penalize a game retailer. I'm tired of the argument that video games are any worse than any other media form out there.

People were scared of the printed word, then novels/novellas, then comics, then radio, then tv & movies.... when you dig into history, there was hysteria from a vocal few for each of these media forms.


BTW, I don't dislike Natural Born Killers. Its a pretty brilliant commentary on society, violence, and media, but that said, I don't expect my kids when they are 15 or 16 to understand the underlying themes by themselves.