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article imageSupreme Court appears split on video game violence

By Kim I. Hartman     Nov 6, 2010 in World
Washington - The Supreme Court debated sex, violence and free speech Tuesday, as several justices strongly argued for breaking new ground and upholding a California law that would forbid the sale of violent video games to those under age 18.
The arguments the Supreme Court are tackling concern a 2005 California state law banning the sale of "violent" video games to minors under 18. It also would have created strict labeling requirements for video game manufacturers. Retailers who violate the act would be fined up to $1,000 for each violation.
The state's video game law was struck down as unconstitutional before it went into effect. Similar laws in other states have met the same fate.
Opponents of the law note that video games already are labeled with a rating system that lets parents decide what games their children can purchase and play. They also argue that the video games, which the Entertainment Software Association says were played in 68 percent of American households, are protected forms of expression under the First Amendment, reports the NY Daily News.
The case is the culmination of a five-year legal battle in California. The state’s Attorney General Zackery Morazzimi said that the “deviant level of violence that is presented in a certain category of video games” requires legal restrictions to protect children.
But Justice Antonin Scalia almost immediately interrupted, pointing to Grimm’s fairy tales and saying, “So are you going to ban them too?”
Scalia added, “You are asking us to create a whole new prohibition … what’s next after violence? Drinking? Movies that show drinking? Smoking?”
Justice Ruth Bader Ginsburg said, “What about films? What about comic books? Why are video games special?”
The justices voted, in April, to hear California's appeal, but they sounded split Tuesday.
The thing is, it's a very philosophical matter. The prominence of the words "obscenity," "know," "whether," and, above all, "think" reveal this to us. Because what defines "violence" in the first place? Is there scientific data that proves video game violence leads to real life violence? What defines an "image of a human being" in a digital sense anyway, asks FastCompany.com.
"Why isn't it common sense," said Justice Stephen G. Breyer, that if the law can forbid selling pictures of a "naked woman" to a young teen, it can also forbid the sale of scenes "of gratuitous torture of children" in a video game?
Chief Justice John G. Roberts Jr. agreed, citing scenes from the game Postal 2 in which girls are smashed in the face with a shovel and their bodies set on fire.
"We don't have a tradition in this country" of exposing children to that kind of graphic violence, he said.
But in a case that seemed to break the usual liberal-conservative alliances, Justice Antonin Scalia clashed with Roberts and Breyer and argued that the 1st Amendment's protection for freedom of speech has never been applied to restrict violence in the media.
"The same argument could have been made when movies came out" that exposing children to violence would harm them, he told a lawyer for California, reported the LA Times.
Scalia insisted that since the nation's founding, depictions of sex could be banned, but not depictions of violence and torture.
This drew a mocking rebuke from Justice Samuel A. Alito Jr., who is usually allied with Scalia on the conservative side.
When Scalia pressed the state's lawyer to explain how the framers of the 1st Amendment would see the issue, Alito interjected: "What Justice Scalia wants to know is what James Madison thought about video games." The remark elicited laughter in the courtroom.
Later, Alito said he disagreed with Scalia's historical approach to deciding this constitutional question. Video games "are a new medium not envisioned at the time of the founding," he said, and it "is entirely artificial" to decide based on a guess about what the 18th-century framers would have thought.
Alito signaled he agreed with Roberts and Breyer that the state can "restrict minors' access to violent, sadistic and graphic" video games.
But Justices Ruth Bader Ginsburg and Sonia Sotomayor joined with Scalia in raising free-speech objections to California's law. "Could you get rid of rap music?" Sotomayor asked at one point, since the lyrics "talk about killing people."
No, replied Zackery P. Morazzini, a deputy state attorney general for California. He said the state law focuses on video games in which the player can kill or maim a lifelike figure of an innocent human being.
Justice Sotomayor asked, while revealing she's a Trekkie at heart: "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?" And here's the choicest quote, from Chief Justice Roberts: You "cannot pass a law that says you may not sell to a 10-year-old a video in which they set schoolgirls on fire."
Morazzini argued that video games are far more troubling than movies, music or television because children and teens are active participants in the killing and maiming, not just "passive observers."
The court's decision could rest on the votes of Justices Anthony M. Kennedy and Elena Kagan, who asked questions on both sides without tipping their hands.
"You are asking us to go into an entirely new area," Kennedy told the state's lawyer, by permitting restrictions on violence in the media. He said he worried that the state's definition of a banned game was vague and would not be clear to game makers or retailers.
But Kennedy also questioned why violence in the media always deserved protection under the 1st Amendment. "Why shouldn't violence be treated the same as obscenity," subjecting it to strict limits when minors are the audience, he asked.
In the court's last term, Roberts spoke for the court when it struck down on free-speech grounds a federal measure that outlawed videos of dog-fighting and other acts of animal cruelty.
But he commented during Tuesday's argument that his opinion left open the possibility that a law focused on so-called crush videos involving the killing of tiny animals would be upheld.
The chief justice suggested the court could uphold California's law by keeping it narrowly focused on the video games that expose children and teens to graphic and sadistic violence. It was unclear, however, whether he would have a majority to do that.
It will probably be several months before the court hands down a decision in the case, Schwarzenegger vs. Entertainment Merchants Association.
In a written statement, Michael Gallagher, president of the Entertainment Software Association, said he is hopeful his industry will prevail and "the court will reject California's invitation to break from these settled principles by treating depictions of violence, especially those in creative works, as unprotected by the First Amendment."
More about Supreme court, Video game, Violence, First ammendment, Freedom speech
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