"We have here a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified," Associate Justice Samuel Alito said in oral arguments before the high court Nov. 2.
The case revolves around a 2005 California law that restricts video game retailers from selling or renting violent video games to minors. The law has been declared unconstitutional by lower federal courts and, therefore, is not active.
The law is specific in its definition of "violent:" the game must contain options for the player that include "killing, maiming, dismembering, or sexually assaulting an image of a human being." However, since the law is content-based, the opposition argues it fails to meet strict scrutiny conditions.
Strict scrutiny requires a legislature to show evidence that a law, which arguably infringes on free speech rights, is necessary to "achieve a compelling interest." In this case, the state argues that violent video games have harmful side effects for children who play them, and it is in the state's interest to protect them. The state submitted studies to the Supreme Court it said proved a correlation between violent video games and aggression in children.
California also used the 1968 Ginsberg v. New York decision as a precedent in its own case. In Ginsberg, the high court ruled merchants could not sell sexually explicit materials to minors. This ruling formed a new category of exempted speech: obscenity for minors. The state maintained this ruling should also apply to the law in question.
"The California law at issue today before this court differs from the New York law at issue in Ginsberg in only one respect," Zackery Morazzini, attorney for California, told the justices. "Where New York was concerned with minors' access to harmful sexual material outside the guidance of a parent, California is no less concerned with a minor's access to the deviant level of violence that is presented in a certain category of video games that can be no less harmful to the development of minors."
Some of the justices, however, didn't seem confident these studies were convincing enough to prove the law necessary. A few of them seemed to fear passing this law for video games would lead to further government censorship of other media.
"One of the studies, the Anderson study, says that the effect of violence is the same for a 'Bugs Bunny' episode as it is for a violent video. So can the legislature now, because it has that study, say we can outlaw 'Bugs Bunny?'" Associate Justice Elena Kagan said.
While the state expressed significant interest in preventing "developmental harm" caused by violent video games, California primarily wants to keep the decision in the parents' hands. It argues children are able to obtain these games without the permission or knowledge of their parents, which serves another function of the law. Morazzini said, "his rule promotes the state's independent interest in helping parents protect the well-being of children in those instances when parents cannot be present."
The plaintiffs, the Entertainment Merchants Association (EMA), contend the ratings by the Entertainment Software Rating Board (ESRB) are sufficient guidelines for the purchase of video games. The highest ESRB ratings are M, for mature, and AO, adult only. The M rating includes content that, according to ESRB, "may contain intense violence, blood and gore, sexual content and/or strong language."
Enforcement of the rating recommendations is entirely voluntary. This means it is up to individual vendors whether the store will sell mature-rated games to minors or not. While the ESRB site says it works with retailers to support rating enforcement, a recent study by the Parents Television Council found one in five minors were able to purchase mature-rated video games from game vendors without a parent or guardian present.
Before the justices, Paul Smith, on behalf of EMA, argued the law is unnecessary because parents are already in control of their children's activities. He continued, naming five elements that parents have available to exercise control of what their children are exposed to: (1) ESRB ratings; (2) the fact that most of the time parents purchase the games; (3) most of the time the game is played on a family television; (4) televisions and game systems have parental controls, and (5) the fact the studies show any negative effects that take place do so after years of play.
While these elements are available to parents, some of the justices seemed unconvinced these were sufficient tools for parents to use in protecting and monitoring their children.
"You say there is no problem because 16 year olds in California never have $50 available to go buy a video game, and because they never have TVs in their room and their parents are always home watching what they do with their video games ... and the video games have features that allow parents to ... block the playing of violent video games, which can't be overcome by a computer-savvy California 16 year old, that's why there is no problem, right?" Alito said.
The justices also discussed issues such as the difference of what is appropriate for a 16-year-old in comparison to a 4-year-old and how this law could eventually affect other media. The final looming question seemed to be whether this law would be a precedent for further government censorship.
"You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment," Associate Justice Antonin Scalia said. "re we to sit day by day to decide what else will be made an exception from the First Amendment?"
A decision in Schwarzenegger v. Entertainment Merchants Association is expected before the court adjourns next summer.
Hannah Cummings is an intern with the Washington bureau of Baptist Press.
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