Supreme Court accepts case over violent video games

Nandemonai · September 10, 2010, 1:09am

Well, I guess we’ll have to agree to disagree about that.

But that IS what the Supreme Court case is about. In the past, the Supreme Court has said that such things - when they happen as a result of a law that gets passed - ARE censorship. So if the Supreme Court wants to revisit that precedent, it would take a case like this. So I suppose in the coming months we will see what we shall see

Nargrakhan · September 10, 2010, 1:23am

It’s the video game companies that are arguing it’s censorship - which I find absurd.

The state is arguing it’s another Prince v. Massachusetts (government should protect children), or Ginsberg v. New York (something does not have to be obscene to be regulated as unsellable to minors), and some other half dozen other similar cases.

Precedent says sales to children can be controlled by the government. If they rule against it, then they’re overturning past cases.

In the situations the Supreme Court has ruled in favor of minors, it’s because the censorship is deeply rooted in political, religious, or nationalistic matters: Island Trees School District v. Pico (political content of books) or Tinker v. Des Moines Independent Community School District (political protest), and the other “what kids can vote or pray to” type deals.

Commercialism is an entirely different entity… nor is banning GTA4 rooted in the idea that “God hates GTA4” or “GTA4 is communist”.

As you said: We’ll all see end of this year or early next year what the end verdict is.

Nandemonai · September 10, 2010, 5:17pm

You have kids? And they’re not part of your Stockholm Syndrome harem? Although I suppose, if they’re not twins, they’d probably be OK …

I wasn’t going to get into a long debate over this, since I’m going out of town for a few days … but you did post an interesting precedent, so I thought I’d return the favor. I looked thru the appelate opinion which SCOTUS is going to review (which is here). The court said:

That ruling is summarized on Wikipedia: http://en.wikipedia.org/wiki/Erznoznik_ … cksonville and the text of the ruling is here: http://caselaw.lp.findlaw.com/cgi-bin/g … &invol=205

So actually, minors have fairly substantial First Amendment rights. And furthermore, they referred to the ordinance in the Jacksonville case as “censorship” for exactly the same reason as the game companies are complaining about the California law. In the opinion itself, the Supreme Court wrote (emphasis added):

Supreme Court:

It is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults. See, e. g., Ginsberg v. New York, 390 U.S. 629 (1968). Nevertheless, minors are entitled to a significant measure of First Amendment protection, see Tinker [422 U.S. 205, 213] v. Des Moines School Dist., 393 U.S. 503 (1969), and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them. See, e. g., Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 1968 ); Rabeck v. New York, 391 U.S. 462 (1968).

In this case, assuming the ordinance is aimed at prohibiting youths from viewing the films, the restriction is broader than permissible. The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited. Rather, it sweepingly forbids display of all films containing any uncovered buttocks or breasts, irrespective of context or pervasiveness. Thus it would bar a film containing a picture of a baby’s buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach. Clearly all nudity cannot be deemed obscene even as to minors. See Ginsberg v. New York, supra. 10 Nor can such a broad restriction be justified by any other governmental interest pertaining to minors. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable [422 U.S. 205, 214] for them.

So this case was decided after the Ginsberg case that the States want to rely on, and the Supreme Court explicitly said that even though Ginsberg is still good law, it is limited, and that minors still have First Amendment rights. So the question is going to turn on what is a “legitimate proscription”.

As for chilling effects amounting to censorship, they also said

Then the appeals court talked about specific standards which are applied to laws like this one:

This references another decision: http://en.wikipedia.org/wiki/Turner_Bro … Commission for which the relevant section reads:

Supreme Court:

That the Government’s asserted interests are important in the abstract does not mean, however, that the [rules at issue] will in fact advance those interests. When the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply “posit the existence of the disease sought to be cured.” … It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. … This Court may not simply assume that the ordinance will always advance the asserted state interests sufficiently to justify its abridgment of expressive activity … regulation perfectly reasonable and appropriate in the face of a given problem may be highly capricious if that problem does not exist. [Many citations omitted].

Thus, in applying O’Brien scrutiny we must ask first whether the Government has adequately shown that the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by [the rules at issue]. Assuming an affirmative answer to the foregoing question, the Government still bears the burden of showing that the remedy it has adopted does not “burden substantially more speech than is necessary to further the government’s legitimate interests.”

And the O’Brien standard is: http://en.wikipedia.org/wiki/United_States_v._O’Brien

… And now it’s time for me to go, or I’d reorganize this into something less wall-o-text-tastic

Nargrakhan · September 10, 2010, 7:21pm

I’m not into loli, so they’re safe. For now.

Nandemonai · September 17, 2010, 5:08am

Saw an interesting article on Ars Technica today:

http://arstechnica.com/gaming/news/2010 … -movie.ars

Jinnai · September 17, 2010, 9:19pm

Today was the deadline for briefs and at least a couple last-minute filings were made against the ban, the latter of which has a lot of groups listed under it.

http://kotaku.com/5640848/the-entertain … a-game-law

Booksellers, publishers, and authors along with the recording, advertising, arcade, and comic book industries rally against the California violent video game law in the name of all media.

Today is the last day to file friend of the court briefs in the Supreme Court case reviewing California’s video game law, set to begin hearing arguments on November 2. Fearing the law will weaken the first amendment and spill over into other media, representatives from several different segments of the entertainment industry lend their support to the video game industry.

Two friend of the court briefs have been filed so far, one from the Comic Book Legal Defense Fund and another from the Media Coalition. The Media Coalition brief was signed by five of its members - American Booksellers Foundation for Free Expression, Association of American Publishers, Inc., Freedom to Read Foundation, National Association of Recording Merchandisers, and Recording Industry Association of America - along with the Association of National Advertisers, Amusement & Music Operators Association, PEN Center USA, and The Recording Academy.

That’s a great deal of power stacked up against Schwarzenegger v. EMA, a challenge to the 2005 California law prohibiting the sale or rental of video games containing certain violent content to minors, with penalties of up to $1,00 for each infraction…

Both briefs reflect the same fear: That the validation of this law, already struck down at the federal and appellate levels, would weaken first amendment protection for all forms of media.

“This law may be aimed at video games, but any restriction on violent content could then be applied to a much wider range of media. The potential impact of this law is clearly reflected in the wide range of mainstream groups that have joined our brief opposing this law,” said David Horowitz, Executive Director of Media Coalition. “There is no First Amendment exception for violent speech in books, movies, music, or other mediums, and we believe that the Supreme Court should not open the door to a new category of unprotected speech for video games or otherwise.”

Nargrakhan · September 17, 2010, 10:26pm

If the ban is allowed, it appears 11 states will immediately implement it along with California: Connecticut, Florida, Hawaii, Illinois, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Texas, and Virginia. About 15 others will review it for their own state legislation – so it’s not like California is alone on this.

More like fearing the law will weaken their $$$.

Jinnai · September 19, 2010, 6:16pm

I’m sure that’s what they really fear, but they do have some valid arguments.

As both the circuit and appellate courts stuck this law down the US Supreme Court took its likely because they want to overturn or clarification of a previous precedent. Given what’s happened in history in such cases, it’s usually the former. There are only 1 real precedent of note here I think they could be looking at Ginsberg v. New York.

Nargrakhan · November 2, 2010, 2:55pm

Case was heard to day. Ruling early next year. Here’s two articles on the proceedings. First is from CNN. Second is from Fox News.

Short and to the point: John Roberts and Stephen Breyer are clearly in support of the ban. Antonin Scalia and Ruth Bader Ginsburg are clearly against the ban. Anthony Kennedy says it’s unexplored territory, but didn’t really give an overt yea or nay, other than he felt it needed more clarification. Sonia Sotomayor says it would be difficult to enforce if allowed, and was worried about how far it could go, so that seems like a nay on her end.

So it seems the ban will be nullified on first appearances… but the Justices want to deliberate and trade opinions on the whole thing, so things could change before they make the final word.

Washington (CNN) – “Postal 2” features the adventures of the “Postal Dude,” an interactive video game character who, under the control of the player, must confront everyday tasks. But it is how he handles these errands – with the power to behead girls, shoot police, and urinate on victims – that along with other explicit games, has become a constitutional controversy.

Now in a dramatic Supreme Court confrontation, free speech clashed with consumer protection over these so-called “violent” video games and whether they should be kept out of the hands of children.

The justices Tuesday appeared genuinely torn as they heard oral arguments in the appeal of a state law to regulate the sale of such material to minors.

Justice Antonin Scalia wondered whether the state would in effect be creating a “California Office of Censorship” to determine what is violent content.

“It would judge each of these videos one by one. That would be very nice,” he said somewhat sarcastically. “Do we let government pass upon a board of censors? I don’t think so.”

In some games an underage player can “imagine he is a torturer and impose gratuitous, painful, excruciating violence upon small children and women – and do this for an hour or so,” said Justice Stephen Breyer. “Why isn’t it common sense to say a state has the right to tell parents – if you want that for your 13-year-old, you go buy it yourself?”

During the one-hour oral arguments, many on the high court appeared concerned the California law may have gone too far, but others suggested states might have some more narrow regulatory role when it comes to the sale of violent content.

Video game makers said the ban goes too far. They say the existing nationwide industry-imposed, voluntary ratings system is an adequate screen for parents to judge the appropriateness of computer games.

The state says it has a legal obligation to protect children when the industry has failed to do so.

At issue is how far constitutional protections of free speech and expression, as well as due process, can be applied to youngsters. Critics of the content-based restrictions say the government would in effect be engaged in the censorship business, using “community standards” to evaluate artistic and commercial content.

A federal appeals court in San Francisco, California, last year tossed out the law before it took effect, after Gov. Arnold Schwarzenegger signed it in 2005. He had applauded the high court’s decision to intervene. “We have a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions, just as we already do with movies,” the governor said. The onetime actor made his name playing characters engaged in similarly violent acts in such movies as “Terminator.”

The legislation was designed to strengthen the current industry-controlled rating system, and would have placed an outright ban on the sale or rental of games deemed excessively “violent” to those under 18. As defined by California, such interactive games are those in which the player is given the choice of “killing, maiming, dismembering or sexually assaulting an image of a human being” in offensive ways. It also defined such games that would “appeal to a deviant or morbid interest of children and are patently offensive to prevailing community standards.”

Retailers would face up to $1,000 fine for violations. The law would also require game makers and retailers to place an “18” label prominently on excessively violent games.

The gaming industry sued in federal court and won an injunction halting enforcement of the law until the courts sort out the constitutional questions.

During the one-hour oral arguments, many on the high court appeared concerned that California may have gone too far, but others suggested states might have some more narrow regulatory role when it comes to violent content.

“What’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children?” asked Scalia. “Are we to sit day-by-day to decide what else will be made an exception from the First Amendment?”

“Why are video games special? Or does your principle extend to all deviant, violent material in whatever form?” Justice Ruth Bader Ginsburg asked the lawyer from the state attorney general’s office.

Zackery Morazzini replied that the “interactive nature”-- where players actually control the action – makes them different from more “passive” entertainment like movies or books.

The justices offered various hypotheticals, and mused whether specific types of “artistic” content could be regulated. They included fairy tales from the Brothers Grimm – which Scalia said “were quite grim” and rap music – which Justice Sonia Sotomayor labeled as “original violent songs that have been sung about killing people and about other violence directed to them.”

The state had submitted a short video game excerpt to the court as part of its briefing material. “I’m not suggesting that I like this video,” said Sotomayor. “To me, it’s not entertaining, but that’s not the point. To some it may well be.”

Morazzini tried to argue that video-game violence belonged in the same category as pornography – the only other free speech and expression area which the high court has said can be strictly controlled when it comes to minors.

“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,” said Justice Anthony Kennedy. “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 [California] statute might be vague.”

On the other side, several on the bench were clearly disturbed at the content of some games rated “M” – meaning they’re intended for mature players only.

“The child is not sitting there passively watching something; the child is doing the killing. The child is doing the maiming,” noted Chief Justice John Roberts, the only member of the court with young children. “And I suppose that might be understood to have a different impact on the child’s moral development.”

Breyer and Justice Samuel Alito also pointed to studies showing showing children who repeatedly watch on-screen games can become more aggressive, anti-social, and less able to distinguish the consequences of violence in real life. Parents groups and some lawmakers believe there is a “causal connection” between access to such games and psychological or other harm to children.

“You seem to argue that there really is no good reason to think that exposure to really violent video games is bad to minors,” Alito said to the industry’s lawyer. “We have here a new media that cannot possibly have been envisioned at the time when the First Amendment was ratified.”

Attorney Paul Smith was repeatedly pressed by Alito and Roberts over whether any law regulating the sale of video games to children would be constitutional. He flatly said no, and cited other scientific studies showing no correlation in future acts of violence by youngsters playing video games.

Several justices suggested that keeping violent video games on the top shelves of stores, or confined to an adults-only room, might be appropriate state intervention. Sotomayor cited one study finding as many as 20 percent of these kinds of games were being sold to minors.

“Postal 2” was specifically cited by the state as potentially subject to the proposed statutory ban. The manufacturer, Running With Scissors, Inc., based in Tucson, Arizona, rates it as “M” for a mature audience only, with “blood and gore,” “intense violence” and “sexual themes” as part of its content.

Other games listed by parent groups as being of concern are “Full Spectrum Warrior” and “Call of Duty: Modern Warfare 2,” where players at one level can view terrorists slaughtering civilians at an airport.

The video game industry, as part of its appeal, sent several PlayStation video games to the justices for their discretion to view, including “Medal of Honor” and “Resident Evil 4.”

The motion picture industry has its own self-monitoring ratings system, imposed decades ago after complaints that some films were too explicit for the general audience in what was seen and heard. The gaming industry says its ratings system roughly follows the same self-imposed guidelines, and ratings are clearly labeled on the packaging.

Similar complaints have been raised over the decades over children’s exposure to pulp novels and comic books, in addition to pornography.

Efforts in at least eight other states to restrict gaming content have been rejected by various courts. Video game makers have the support of various free-speech, entertainment, and media organizations. Nine states also agree, noting California’s law has good intentions but would compel law enforcement to become “culture critics” and “distract from the task of policing actual violence.”

But 11 other states back California, saying they have enjoyed a traditional regulatory power over commerce aimed at protecting children, including such goods as alcohol and cigarettes.

The Supreme Court in recent years has thwarted repeated congressional attempts to protect children from internet pornography, saying legislation went too far in limiting adult access to lawful, but explicit, sexual content on the web.

And the justices this spring threw out a federal law limiting the sale of graphic videos of animal cruelty.

The case is Schwarzenegger v/ Entertainment Merchants Assn. (08-1448). A ruling is expected by next spring.

Supreme Court Hears Arguments on Violent Video Games

Published November 02, 2010

The Supreme Court on Tuesday expressed sympathy for a California law that aims to keep children from buying ultra-violent video games in which players maim, kill or sexually assault images of people.

But several justices said the law faces a high constitutional hurdle before going into effect.

The high court has been reluctant to carve out exceptions to the First Amendment, striking down a ban on so-called “crush videos” that showed actual deaths of animals earlier this year.

California officials argue that they should be allowed to limit minors’ ability to pick up violent video games on their own at retailers because of the purported damage they cause.

Violent video games are “especially harmful to minors,” said Zackery P. Morazzini, a California supervisory deputy attorney general who argued the case for the state.

California’s 2005 law would prohibit anyone under 18 from buying or renting games that give players the option of “killing, maiming, dismembering, or sexually assaulting an image of a human being.” Parents would be able to buy the games for their children, but retailers who sell directly to minors would face fines of up to $1,000 for each game sold.

That means that children would need an adult to get games like “Postal 2,” the first-person shooter by developer Running With Scissors that features the ability to light unarmed bystanders on fire. It would also apply to the popular “Grand Theft Auto IV,” a third-person shoot-'em-up from Rockstar Games that allows gamers to portray carjacking, gun-toting gangsters.

Some Supreme Court justices wondered where the regulation would stop if they allowed California’s law to go forward.

“What about films?” asked Justice Ruth Bader Ginsburg. “What about comic books?”

Justice Antonin Scalia wondered if movies showing drinking and smoking might be next.

“I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech,” he said. “It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment.”

The California law never took effect. Lower courts have said the law violates minors’ constitutional rights under the First and Fourteenth amendments, and that the state lacked enough evidence to prove that violent games cause physical and psychological harm to minors. Courts in six other states, including Michigan and Illinois, reached similar conclusions, striking down similar bans.

The Supreme Court will make a decision sometime next year.

“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,” said Justice Anthony Kennedy.

Opponents of the ban have called the measure unnecessary because virtually all major game publishers and retailers employ a universal voluntary rating system, much like movie studios and theaters. They assign one of eight age-specific ratings to games, and block children from buying those rated M for “mature” and AO for “adults only.”

California lawmakers were trying to help parents control what type of video games their children had access to, Morazzini said.

Paul M. Smith, lawyer for the Entertainment Merchants Association, countered that there was no proof that violent video games were any more harmful than television, books or movies.

Chief Justice John Roberts appeared to disagree.

“In these video games the child is not sitting there passively watching something. The child is doing the killing. The child is doing the maiming. And I suppose that might be understood to have a different impact on the child’s moral development.” Roberts said.

Showing stronger support, Justice Stephen Breyer said it doesn’t make sense to allow bans on minors from accessing pornography and not be able to block them from graphically violent video games.

What if a video game showed “gratuitous torture of children?” Breyer asked. “‘Now you can’t buy a naked woman, but you can go and buy that,’ you say to the 13-year-old. Now what sense is there to that?”

“Why isn’t it common sense to say a state has the right to say, 'Parent, you want this for your child? You go buy it yourself,”’ Breyer added.

Nearing the end of arguments, Justice Sonia Sotomayor pointed out the difficulties with enforcement.

She noted that the law bans minors buying video games that show violence to people. But what if game designers make a couple of anatomical changes to the depiction of human beings, like elongating the ears?

“Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?” Sotomayor asked.

Morazzini said those games would then be legal to sell to children.

Nandemonai · November 2, 2010, 4:21pm

Narg, you might want to blank out the wall-o-text quotes with links to the source material. The AP’s been on the warpath about people bootlegging their stuff. I know that’s not what you intended, but it’s not exactly kosher to just repost the whole thing with no attribution.

Nargrakhan · November 2, 2010, 5:19pm

It was a revenue lawsuit. The AP’s lawsuit was specifically for aggregators and for-profit organizations. It’s not so certain if they can actually sue ordinary people or public forums or personal blogs, because of Fair Use laws (which specifically mentions news reporting in it). Furthermore, [url=http://cyberlaw.stanford.edu/node/6061]Stanford University[/url] - breeding ground for thousands of lawyers - has fought back against them.

I’m more worried about US Customs intercepting my eroge, than the AP actually forming a case against me because I quote one or two of their articles on a forum with zero expectation of profit to be earned. Every single AP lawsuit to date, has always involved someone making money off their stuff, in some way or another. This forum doesn’t even have an ad banner on it (and I hope it stays that way).

DarkFusion · November 3, 2010, 12:02pm

Check this out if you want to read a bit on the case as it was brought to the Supreme Court:

http://xbox360.ign.com/articles/113/1131849p1.html

Jinnai · November 5, 2010, 12:03am

And how worried are you about that?

It sounds like it may be get struck down on being “overly vague” and “too far reaching” more than the justices being totally against regulation.