Video Game Industry Wins Brown V. EMA Ruling

In a 7-2 ruling, the Supreme Court of the United States has struck down a California law, Brown (Schwarzenegger) v. Entertainment Merchants Association, that sought to restrict the sale of violent and otherwise objectionable video games to minors under the age of 18 years old.

In the majority decision, Justice Antonin Scalia noted that the law does not pass muster with the First Amendment to the Constitution of the United States. “The most basic of those principles is this: ‘[A]s a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”, stated Scalia while referencing Ashcroft v. American Civil Liberties Union. He stated that the exceptions to this – such as the obscenity ruling in Roth v. United States, incitement in Bradenberg v. Ohio and “fighting words” in Chaplinsky v. New Hampshire – are very narrow while not defeating the original meaning of the First Amendment, and that United States v. Stevens – which sought to criminalize the commercial use of cruelty to animals – was applicable in this case because “There was no American tradition of forbidding the depiction of animal cruelty—though States have long had laws against committing it.” He would go on to note that in Stevens, the government tried to argue that new categories could be added as exceptions if it deemed their addition to be a net social good, a view that the Supreme Court rejected at the time as “startling and dangerous”. He stated that video games are not obscene in the sense that the State of California tried to argue that they were because the material noted in Ginsberg v. New York (which regulated that although material such as pornography was free speech, their marketing could be regulated if it was deemed it was harmful to children) was of a sexual nature, which the material argued in this case was not.

(Editor’s Note: It should be noted here that games of a pornographic nature are specifically given a rating of AO by the Entertainment Software Review Board, and that no retailer allows AO rated games to be sold in their stores. I gave a pretty detailed rundown of specific games that were rated AO when I used to write at Diehard GameFAN.)

Justice Scalia goes on to state that California is trying to create a new class of content regulation that is permissible only regarding speech directed at children. He defeats this argument by stating that children are mostly protected by the First Amendment, and that while the state has the power to protect children from harm, it does not have the power to protect children from ideas that may or may not be objectionable. He even goes on to note that many “classic” forms of entertainment, specifically aimed at children, featured violence and gore in their own rights:

Certainly the books we give children to read—orread to them when they are younger—contain no shortageof gore. Grimm’s Fairy Tales, for example, are grim in-deed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jeal-ousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops bygrinding out his eye with a heated stake. The Odyssey ofHomer, Book IX, p. 125 (S. Butcher & A. Lang transls.1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they beskewered by devils above the surface. Canto XXI, pp.187-189 (A. Mandelbaum transl. Bantam Classic ed.1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208-209 (1997 ed.).

Justice Scalia goes on to note that Justice Alito’s pointing out of specific cases of grotesque video game violence, with vivid descriptors, “highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.” He concludes that California did not provide proof that video game sales to minors was an immediate threat to children, and that the law was one of a long line of failed attempts to censor violent entertainment for minors.

Justice Samuel Alito concurred with the opinion of Justice Scalia, and was joined in the concurrence by Chief Justice John Roberts. In his concurrence, Justice Alito states that the California law is overly broad, and that as it stands, he cannot support it, but disagrees with the process taken to get to the majority opinion, noting that a more specific law would pass judicial muster. He notes that the court should consider rapidly changing technologies, and that he sees reason to believe that the act of gunning someone down in a video game is different to simply reading about it. In a footnote, Justice Scalia notes that while reading Dante is more intellectually rewarding than playing Mortal Kombat, the differences are not backed up as something that should be regulated per the Constitution.

Justices Clarence Thomas and Stephen Breyer gave dissenting opinions, through different means. The dissent by Justice Thomas largely centres around his belief that the First Amendment does not necessarily extend to minors (something Justice Scalia addressed in another footnote), stating that the “practices and beliefs held by the Founders reveal another category of excluded speech: speech to minor children bypassing their parents”. He also cited a belief by America’s founding fathers that children are entirely malleable and that fathers in colonial New England ruled with “absolute power”, though he cited nothing in the Constitution that backed this up. Justice Breyer’s dissent indicated that he felt the law withstood First Amendment questions because it was only a minor restriction on minors purchasing games without a parent’s permission, not a restriction on anyone actually playing a game. He also didn’t feel allowing California’s games law would set a precedent that would affect other forms of media such as music or movies. The Justice also asked “what sense does it make to forbid selling to 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 … tortures and kills her?”

Reaction has been widespread and often predictable. Publishers have been extremely positive, with Valve’s Steam software showing an image titled “FIRST AMENDMENT FTW!” as their number one “game”. Electronic Arts’ John Riccitiello noted to Industry Gamers that “everyone wins”. The EMA put out a statement celebrating the win, while citing the benefits of the ESRB ratings system and pointing out that EMA-affiliated retailers have a “high level of ratings education”. The Entertainment Software Association (ESA) put out a notice celebrating the victory, stating that the Supreme Court “affirmed what we have always known – that free speech protections apply every bit as much to video games as they do to other forms of creative expression like books, movies and music.” Vince Desi, the CEO of Postal developer Running With Scissors and a perennial whipping boy for proponents of the law, proclaimed that it was time for the entire industry to “start taking responsibility for their part and stop the hypocrisy that has been the standard in our industry” relating to a perceived inconsistent application of moral standards1. The Washington Post put out editorials on both sides, with the paper’s editorial section criticizing the ruling, while Catherine Ross praised it. Libertarian activists are also generally pleased, with Outside The Beltway’s Doug Mataconis claiming that the ruling is “not only for the First Amendment, but also for parental authority over the authority of the state.” On the other side, the Parents Television Council put out a release stating that the ruling “replaces the authority of parents with the economic interests of the video game industry”. Finally, California State Senator Leland Yee, the original sponsor of the bill and a child psychologist, also bemoaned the ruling, stating that it was a chance for retailers to widen their profit margins by marketing violent games to children. Senator Yee also stated to the Associated Press that he would be reviewing the dissents to try to reintroduce the bill in a way that would make it constitutional. Senator Yee is going to be running for Mayor of San Francisco in 2012.

The entire opinion can be read at the bottom of this article.

Analysis: This is what it is, and it is this: it’s the ruling that the video game industry, who has been under attack by forces both legitimate (I still believe Senator Yee is sincere in his beliefs) and blown up (the PTC, and others yammering about how the retail industry gets its jollies on selling Manhunt to Timmy, Age 7). It’s not our Roe v. Wade, but it’s the closest we’ll have.

With that said, this isn’t a victory for gamers as it is a larger victory for the First Amendment. There’s a reason why the MPAA and RIAA filed amicus briefs in support of the EMA: a victory for the State of California, despite Justice Breyer’s assertions, would have set a precedent that absolutely would have set off a domino effect against other forms of media, and it absolutely would have created a slippery slope that would have welcomed other forms of censorship. If anything, prior cases that set even the narrow exceptions to the First Amendment prove that, as it was the Ginsberg v. New York case that California tried to use as the example here. Basically, to use a baseball term, California called up a pinch hitter – their legal strategy – that is about 3-for-40. They found prior history – which historians debate to this day as to whether or not it’s good law – and tried to stuff their entire legal strategy through it. It barely had a prayer of working, and it didn’t. Even if one takes into account the difference in the court’s eyes between sexual content and violence (something that I don’t get, either; free speech is free speech, whether you’re talking about licking someone or clubbing them), a prior ruling in the case of Erznoznik v. Jacksonville pretty much took all legal hope California had away.

This is notwithstanding some of the arguments that came up on the side of those who supported the State of California which were, in a word, insulting. Socially conservative groups have been playing up that our children are being attacked by predatory sellers, who call over unsuspecting, doe-eyed little lads and lasses, and open up their trench coats while saying “hey… psst… you want some Grand Theft Auto, kid? First DLC pack’s free!”. We have to regulate them, kids are being sold violent games left and right! And the ratings can’t be trusted because the ESRB is in the pocket of the publishers! They’re a front! Of course, the truth was almost completely different. The ESRB is paid for and supported by the industry and its partners, true, but the people that review the games are not gamers, at least in the sense that the stoner in his mother’s basement who’s diet consists of Hot Pockets and Mountain Dew isn’t the one that decides if Limbo gets a T or an M. If anything, the ESRB is the model of self-policing organizations all over the country, and the numbers back that up: a recent FTC study indicated that retailers were much less likely to sell M-rated video games to 13-16 year old kids (13% failure rate) than they were R-rated movies (33%) and much less than they are music with the explicit lyrics label (64%). For an organization that Sen. Yee compared to “wolves guarding the hen house”, those hens are pretty damned safe, especially considering the fact that, as I pointed out earlier, every major retailer – really, anyone that sells packaged goods video games – has a stated policy of not selling M-rated video games to minors, and that they will not sell AO rated video games, period. Of course, this is of no consequence to those who cry like squealers for their own personal desires while using “protecting the children as their shield. The PTC’s assertion that the ruling takes power away from the parents is particularly galling, in that it’s 180 degrees, pants-on-fire false. This empowers parents; all it does is forces them to be the censors of their own children, instead of having the government be their nannies. Technology has made this stupidly easy, as the ESRB has an iPhone app that literally allows someone to take a picture of a game’s box, load it into the app, and have the app come back with specific descriptors of the game’s content, including spoilers in some cases. For games that were made before the ESRB started doing more specific write-ups on their website (or for parents who don’t have an iPhone), the back of the box has pretty clear-cut reasons for a game getting the rating it gets. In short, only a truly lazy imbecile wouldn’t be able – or willing – to use the extremely easy system the ESRB has set up to clearly explain why their child can’t walk out of Gamestop (9% failure rate) with Duke Nukem Forever without them having to go talk to the clerk, who is trained to tell them “this game has a mature rating because of X, Y and Z”.

It is true that it was a special interest that brought about this decision. Yes, the EMA was involved because of monetary reasons; it directly benefits them to not have the government imposing criminal sanctions on them for what could be honest mistakes from poor training or poor staff quality. It would be foolish to believe that the EMA gives a crap about the First Amendment except in how it benefits their own reasons. That, however, doesn’t obscure that the Supreme Court was right in ruling the way it did, or that this was really the only way the Supreme Court could have ruled without opening up dissents on past rulings dating back generations.

What’s most notable for future challenges to free speech rights is that in his opinion, Justice Scalia pretty much made a broadside hit against just about every argument for excepting the First Amendment, defeating every argument with very clear and concise – even sarcastic at times – language that left no doubt as to where he and his fellow joining judges. For a system that reveres precedent, this is going to be compelling to challenge.

Ultimately, nothing will change, and that’s the way it should be. Retailers policies will still be the same; if they relax them, they invite themselves to scorn, and resulting boycotts, from special interest groups. There will be no further chill on innovation in storytelling beyond what already happens (like when a game is appealed to try to get a T rating instead of an M rating to sell better). The special interest groups who are foaming at the mouth today will find a new shiny thing to bat around within a week. Life will go on like this never happened, with one difference: video games have now been validated by the Supreme Court as an art form similar to the long established norms of film and music. Even better, it upholds one of the core tenets of the Bill of Rights: the freedom of Americans to say whatever the hell they want.

(One last aside: I came this close to sweeping the Gaming Bus office pool on this decision. I had a 6-3 decision with Breyer, Alito and Sotomayor dissenting.)

1 – In an email to me responding to my request for comment regarding my Hall of Shame nomination for Postal 2 at Diehard GameFAN, Mr. Desi had this to say in a postscript: “oh one more thing, as someone who works in the industry, I’m surprised you don’t know more about the inner workings and corrupt practices of the major players in our biz, I suggest you do some investigative reporting on this subject, but then you might be fired, but hey no risk no gain. My best to you.” All I could really think at the time was that Mr. Desi hadn’t read my previous work on that subject for the prior three years, but I will concede the man had a point.


Christopher Bowen

About Christopher Bowen

Christopher Bowen is the Editor in Chief of Gaming Bus. Before opening Gaming Bus in May of 2011, he was the News Editor at Diehard GameFAN, a lead reporter for DailyGamesNews, and a reviewer at Not A True Ending, also contributing to VIMM, SNESZone and Scotsmanality. Outside of the industry, he is a network engineer in Norwalk, CT and a veteran of Operation Iraqi Freedom.