By Robert Corn-Revere
The Supreme Court on November 2 heard oral argument in Schwarzenegger v. EMA, which tests the First Amendment validity of a California law that prohibits the sale or rental to minors of violent video games. Vigorous questioning by the Justices suggested that a majority of the Court seemed highly skeptical of the law at issue, but the panel was sharply divided. The argument was reminiscent of the one in U.S. v. Stevens, where the Court invalidated a federal law prohibiting “crush videos” but indicated a narrower or more precise law might survive.
The California law defines violent video games as those that permit a player to kill, maim, dismember, or sexually assault a human being. It applies an analog to the Miller obscenity test, modified to target games that a reasonable person would find, as a whole, appeal to “a deviant or morbid interest of minors” as further defined in the law. The Ninth Circuit held that the law failed to satisfy strict scrutiny and violated the First Amendment. This holding was consistent with earlier Seventh and Eighth Circuit rulings. Such unanimity among the circuits made it difficult to understand why the Court agreed to review the case.
The Justice’s questions suggested that the Court is divided on the issues, although not along conventional ideological lines. Liberals and conservatives paired up on both sides of the controversy, with Justices Scalia and Ginsburg asked pointed questions of Zackery Morazzini, Deputy Attorney General of the State of California, suggesting they were highly skeptical of the law. At the same time, Justices Breyer and Alito appeared to go out of their way to assist Morazzini. Justices Kennedy, Sotomayor, and Kagan each asked questions that appeared to be doubtful about the law and its legal basis, while Chief Justice Roberts pressed Paul Smith, counsel for the Entertainment Merchants Association, on how far he thought First Amendment protections should extend. As is his usual practice, Justice Thomas asked no questions.
Initial questions directed to Morazzini probed whether the state’s theories would allow regulation of other media. In her first question, for example, Justice Ginsberg asked “how do you cut it off at video games? What about films? What about comic books? Grimm’s fairy tales?” Justices Scalia, Kagan and Sotomayor each followed up on this line of questions as well. Justice Sotomayor also linked the argument to the holding in Stevens, where the Court said “we don’t look at a category of speech and decide that some of it has low value?” Justice Kagan asked Morazzini to explain how to determine which games are covered by the law and which are not.
Much of the concern focused on the expansion of obscenity concepts to other subjects, such as violence. Thus, Justice Kennedy expressed his concern about the inherent vagueness of such an endeavor:
The problem is, is that for generations there has been a societal consensus about sexual material. Sex and violence have both been around a long time, but there is a societal consensus about what’s offensive for sexual material and there are judicial discussions on it. Now, those judicial discussions are not precise. You could have had the same questions today with reference to an obscenity statute, and we have – we have said that, with reference to obscenity there are certain – that there are certain materials that are not protected. Those rules are not precise at the margins and some would say not precise in a more significant degree as well. But you are asking us to go into an entirely new area where there is no consensus, no judicial opinions. And this . . . indicates to me the statute might be vague.
Justice Scalia also expressed concern about vagueness, but said he was more worried about the effect “on the First Amendment, which says Congress shall make no law abridging the freedom of speech.” He noted it was always understood that the freedom of speech did not include obscenity, but added “it has never been understood that the freedom of speech did not include portrayals of violence.”
You are asking us to create a – a whole new prohibition which the American people never – never ratified when they ratified the First Amendment. They knew they were – you know, obscenity was – was bad, but – what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children? Does – will that affect them? Of course, I suppose it will. But is – is that – are – are we to sit day by day to decide what else will be made an exception from the First Amendment?
Justice Alito tweaked his colleague’s reliance on the Framers’ original intent with the quip, “I think what Justice Scalia wants to know is what James Madison thought about video games.” But Scalia shot back, “No, I want to know what James Madison thought about violence.”
Others on the Court pointed to potential concessions that potentially undermine the state’s asserted justifications for the law. Justice Kagan noted that California had confined its interest in the “moral development” of youth, and was not stressing the potential for games to cause aggression. Justice Sotomayor noted that the state had abandoned its defense of the labeling requirements of the law, and thereby was giving up one possible less restrictive alternative. Justice Kennedy also asked about less restrictive alternatives.
Chief Justice Roberts, along with Justices Breyer and Alito questioned Smith aggressively, probing why the state should not be able to restrict video games based on “common sense.” Justice Breyer, in particular, seemed to be persuaded by the social science literature that has been marshaled to demonstrate harmfulness of games, but that he did not need to be “a sociological expert” as a judge. To the extent the question is whether a legislature could have enough evidence to think there is a harm, he observed, “the answer is yes.” He added, “why isn’t it common sense to say a State has the right to say [to a] parent, if you want [a violent game] for your 13-year-old, go buy it yourself?”
The Chief Justice suggested that there might be a greater adverse impact on a child’s moral development for an interactive video game than there is for books and movies. He questioned Smith’s statement that the record fails to show that video games are harmful to children, adding, “Some of us may conclude that it does.” Justice Alito echoed this theme, describing video games as “a new medium that cannot possibly have been envisioned at the time the First Amendment was ratified.”
Chief Justice Roberts challenged Smith to explain whether there was nothing a state might be able to do to protect children. After posing the question several different ways, he asked Smith incredulously whether he was really arguing that “the State legislature cannot pass a law that says you may not sell to a 10-year-old a video in which they set schoolgirls on fire.” He also questioned whether a facial challenge to the law was appropriate if any valid applications of the law were articulated.
Some of the other Justices seemed troubled by the suggestion that there was no role for government action. Justices Alito, Breyer, and Sotomayor each pressed Smith on this point. Sotomayor said there was “plenty or proof” that there was a problem and that it is a compelling governmental interest, and asked, “Why are you arguing that there is no solution that the State could use to address that problem?” Although Smith explained that the government could take action if it could satisfy the First Amendment test for strict scrutiny, a majority of the Justices expressed discomfort at the thought that there was nothing the government might be able to do.
Picking up on an earlier question Justice Sotomayor had asked about less restrictive alternatives, the Chief Justice asked if a state might be able to require store owners to segregate violent games in a restricted area. Similarly, Justice Alito asked if civil fines could be assessed based on sale or rental of games to minors if they have a restricted ESRB rating. Justice Breyer also followed up on his point about imposing some type of “common sense” rules based on a modified obscenity standard.
Whether or not they could come up with some less restrictive regulation as a hypothetical alternative, the Justices most critical of video games were uniformly unimpressed with voluntary measures such as industry ratings and parental control technologies. Chief Justice Roberts noted that “any 13-year-old can bypass parental controls in about 5 minutes.” Justice Alito similarly scoffed at the notion that there was no problem because of the existence of parental controls.
A number of questions for both sides probed what should be the appropriate age level for the game restrictions. Justices also asked what other media might be regulated under the First Amendment test the state proposed, as well as what specific games would be restricted. Justice Kagan asked whether Mortal Kombat was a candidate for regulation, noting that it is an “iconic game, which I am sure half of the clerks who work for us spen[t] considerable amounts of time in their adolescence playing.”
Morazzini acknowledged that Mortal Kombat would be a “candidate” for regulation, but was unwilling to make a definitive statement about it except to say that the video game industry “should take a long look at it.” However, he did volunteer that the game Postal II would be restricted by the California law. Responding to a question from Justice Sotomayor about the act’s language being confined to images of violence toward humans, Morazzini said that the law would not cover a Vulcan being maimed and tortured or “an android computer simulated person.”
It is rarely possible to make an intelligent prediction about the probable outcome based on oral argument and this case is no exception. Although initial press reports accurately suggested the Court appeared skeptical of the California law, there also appeared to be considerable support among the Justices for preserving some role for government action. The one seeming certainty is that the final decision probably will reflect a sharply divided Court. When the Court’s decision is issued by next June, it will be critical to look for whether the holding represents a clear majority rule, and how much latitude the Court tries to preserve for government regulation of expression deemed harmful to minors.
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