Supreme Court to review ban on sale of violent video games to minors

Quote: WASHINGTON — The Supreme Court on Monday agreed to review a challenge to California's ban on the sale of violent video games to minors. ... "The public agrees (that) video games should be provided the same protections as books, movies and music," Entertainment Software Association President Michael D. Gallagher said Monday, adding that "we look forward to ... vigorously defending the works of our industry's creators, storytellers and innovators." ... "The Supreme Court has never heard a case dealing with violent video games," Yee noted, so "states are now certain to receive direction on how to proceed with this important issue." ... The California law now in question prohibits the sale of video games to minors under 18 "where a reasonable person would find that the violent content appeals to a deviant or morbid interest of minors." As with laws governing obscenity, the state statute exempts games that have "serious literary, artistic, political, or scientific value." At least nine other states and localities have enacted similar restrictions, including Washington, Minnesota and Illinois. In California, retailers are subject to $1,000 fines for each violation. "This court should...permit states to treat extremely violent material the same as sexually explicit material," California Attorney General Jerry Brown argued in a legal brief, adding that "the First Amendment rights of minors are not coextensive with those of adults." ... Nonetheless, the San Francisco-based Ninth Circuit Court of Appeals unanimously struck down the California law. "The state had wrongly chosen to ban the games without exploring less restrictive alternatives, such as working with parents and retailers," stated attorney Paul M. Smith, in a legal brief filed for the Entertainment Software Association and the Entertainment Merchants Association. ... The Ninth Circuit in its February 2009 decision determined the state law was the kind of speech restriction subject to "strict scrutiny," which means it must be narrowly tailored to meet a compelling government interest. "We must distinguish the state's interest in protecting minors from actual psychological or neurological harm from the State's interest in controlling minors' thoughts," appellate Judge Consuelo Callahan wrote. "The latter is not legitimate." The case is called Schwarzenegger v. Entertainment Merchants Association.

Oral arguments won't likely be heard until the fall, so this post is very very early in the debate. Any predictions? Thoughts? Concerns?

Is this restriction for games with *any* violence in them, or just ones violent enough to be classified as "18+"/"adults-only"?

If the latter, what's the issue? Are minors allowed to buy adults-only films? If not, then why should adults-only games be different?

Over here in Aus, we're petitioning the government to please, please introduce the "adults only" restriction to games, just like we have done for films!

Currently in the US most retailers will not sell a adult rated games or movies to those under 18 but its not a law in either case its a voluntary action taken by all parties involved.

Quote: Original post by Hodgman
Is this restriction for games with *any* violence in them, or just ones violent enough to be classified as "18+"/"adults-only"?

If the latter, what's the issue? Are minors allowed to buy adults-only films? If not, then why should adults-only games be different?

Over here in Aus, we're petitioning the government to please, please introduce the "adults only" restriction to games, just like we have done for films!

Quote:
The California law now in question prohibits the sale of video games to minors under 18 "where a reasonable person would find that the violent content appeals to a deviant or morbid interest of minors." As with laws governing obscenity, the state statute exempts games that have "serious literary, artistic, political, or scientific value."

An appeals court struck down this law, so it's not currently enforced. The Supreme Court has agreed to hear an appeal of that ruling. If that ruling is struck down then the law will go into effect. If that ruling is upheld, the law is null and void. The issue is whether restrictions on minors will remain voluntary or if they will be required by law. In contrast with films, the concern is with violence not with sexually explicit content.

My belief in First Amendment rights tells me one thing but my experience raising two preteen boys tells me something else. This should be a parental responsibility issue. But it's very frustrating to find that even after filtering everything like you're supposed to your kids still get access to adult content through their network of friends and friends' friends. So for us the voluntary rating system is not working (granted I'm in Canada now but there's so much here that's culturally the same as when I lived in California).

Quote: Original post by Johnhl
Currently in the US most retailers will not sell a adult rated games or movies to those under 18 but its not a law in either case its a voluntary action taken by all parties involved.

Although not frequent, I've seen kids sold adult rated games at Gamestop here and in California. It doesn't help that now that games like GTA have become more sexually explicit there's difficulty in determining what the content actually indicates. Halo should not be on the same level of comparison with GTA.

Quote: Original post by Wavinator
But it's very frustrating to find that even after filtering everything like you're supposed to your kids still get access to adult content through their network of friends and friends' friends. So for us the voluntary rating system is not working

So... what would work? Aren't "your kids still getting access" to other things that are more tightly controlled (e.g. drugs) anyway?

Quote: Original post by Zahlman
So... what would work?

Not sure exactly. Some positive steps might be better descriptions of content. Maybe something like Roger's Video does in terms of differentiating between sexuality, objectionable phrases and violence. NIS could be described this way, certainly, as its all scripted in advance. For things that are based on potential player activities maybe use phrases that describe what can be done ( "allows players to rape dying corpses as special move").

I'd also wonder if segregating content based on maturity rating would be feasible. I like how Canada (or at least this province, I'm not sure if this applies elsewhere) has all the cigarettes away from view from minors. Here and in the US sexual content is treated the same way, and while in both cases its deterrent effect is likely debatable its normative effect I think is very powerful. It creates an extra step, a normative boundary a parent has to cross, and that extra step gives a potentially uninformed (even technologically illiterate) parent a chance to consider why the content is segregated.

Quote:
Aren't "your kids still getting access" to other things that are more tightly controlled (e.g. drugs) anyway?

No.

The Court is very big on the first amendment. Especially the members in there now.

They tend to be very strict about the simple phrase: "Congress shall make no law ... abridging the freedom of speech".

There are few types of speech that are not protected under that requirement. The law is a fairly broad restriction on violently explicit content. Our country has no traditional or established bans on violent content simply due to it being violent. But we do have a history on things that are so blatantly offensive that they have no social value. That will likely play a big part on the ruling.

I'm guessing the court will side with the appellate court and find the law unconstitutional.




But that being written....

Some materials can be regulated without seriously abridging that freedom, and some materials are completely exempt from that freedom. Even within those abridged freedoms, we can do it without an outright ban. We restrict access to materials like porn from minors while still allowing it to consenting adults. Other material, like kiddie porn, can be deemed completely inappropriate under all circumstances.


The law as written covers levels of violence that are still somewhat within socially acceptable levels. That's why I believe they will find it unconstitutional.


There have been many cases, and this is just one, involving regulations on extremely violent offensive content.

There is a difference between what is socially acceptable violence, which is what we see in mainstream media, and socially unacceptable levels of violence, such as crush videos and blatant torture.

That ultra-violent and generally unacceptable material is difficult to regulate under the current obscenity test. There are other laws to help regulate them, but they are tricky for law enforcement.

Under the current test it is protected speech, but the test has only been in place for a short time.


Unprotected materials can be subject to regulation. The common law rules were enough for the first 180-ish years of the nation. Someone in England articulated the common law rules in 1868 that materials which "deprave and corrupt those whose minds are open to such immoral influences" was obscene, and we used that as the basic guideline for what was not protected. That covered both porn and extreme violence, but it also left a lot open to interpretation. It also allowed consenting adults to do basically whatever they wanted.

There was nothing official from our courts or from congress. No guidelines for a clear definition of unprotected obscene materials. Judges did a good job of deciding what was acceptable, and what was offensive enough to warrant regulation.

Then movies were invented.

There were a few small cases here and there, but Roth v. United States (1957) was the first major definitive guidance on the issue, specifically allowing for current community standards. It also introduced the "I know it when I see it" phrase, that the definition of obscenity is extremely hard to codify. Memoirs v. Massachusetts (1966) adjusted the standard again by adding "patently offensive" and "utterly without redeeming social value". Many cases started heading to the court, culminating with 60 obscenity cases in one year on the SCOTUS docket.

Miller v. California was decided in 1973, with the current three-prong test. The work, taken as a whole, must be aimed at the sexual interest, it must be patently offensive based on the community values, and it must lack serious literary, artistic, political, or scientific value. If all three are true, then the material may be subject to regulation.

That handled nearly every obscenity case for three decades.

But now we are seeing many cases of non-sexual content that is widely regarded as obscenely offensive.



A small change to the Miller test would handle most of these current cases, and most of those now heading through the appeals process. They could alter the first prong from just "prurient interest" to include extreme violence. That's it. They would have to pick a rather extreme level of violence. The specific law being challenged calls it a "morbid interest", but I don't think the current court would go for it. I'm not sure I like the word "morbid", but I would go along with "barbaric".

That would still be in line with the overarching policy dating back to the original common law. It allows for the small gap that the Miller test forgot to include certain socially unacceptable depictions of extreme violence.

I haven't read about "morbid interests", but I know barbarity is already defined in law with a ton of court cases explaining it. If the material was based around extreme violence, extreme enough that the community objected to it and also extreme enough that it has no other redeeming values, it would then fall within the test and be eligible for regulation.

It would give guidance on this specific law and several others related to it. The community standards test and the SLAPS value tests would allow practically everything that is currently legal.

That change would have answered the "crush" video question --- which was that the content should not have an outright ban but be regulated and limited to consenting adults through regulatory current means. It would also help clarify the boundaries on violence that Hollywood has been playing with.





This case deals specifically with that issue. The California law follows the same guidelines as the Miller test, only it calls this specific instance a "deviant or morbid interest of minors".

I can imagine the current court altering the Miller test to include violence. There are a lot of cases coming up the pipe dealing with ultra-violent materials, and the small change would lighten their case load considerably.

[Edited by - frob on May 1, 2010 4:15:46 AM]