What the Supreme Court's Ruling Means

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As much as I would love to join in the jubilation as the gaming community celebrates its victory in the Supreme Court, the entire matter is exceedingly complicated and calls for careful reflection.  There’s a lot of unravel and some of the more important details can get lost, especially when they are packed within a document as boring as a court ruling.

Firstly, the California law in question was aimed at doing the following (compliments of SC Judge Breyer):

“California’s statute defines a violent video game as: A game in which a player “kill[s], maim[s], dismember[s], or sexually assault[s] an image of a human being,”

and “[a] reasonable person, considering the game as a whole, would find [the game] appeals to a deviant or morbid interest of minors,”

and “[the game] is patently offensive to prevailing standards in the community as to what is suitable for minors,”

and “the game, as a whole, . . . lack[s] serious literary, artistic, political, or scientific value for minors.” Cal. Civ. Code Ann. §1746(d)(1) (West 2009).

The statute in effect forbids the sale of such a game to minors unless they are accompanied by a parent; it requires the makers of the game to affix a label identifying it as a game suitable only for those aged 18 and over; it exempts retailers from liability unless such a label is properly affixed to the game; and it imposes a civil fine of up to $1,000 upon a violator.”

So that’s a summery of the law declared unconstitutional by the Supreme Court, and the California State Supreme Court before them.   And whether gamers, gaming journalists, or the gaming industry likes it, more than dislike of a loud but limited subculture is needed to null a legislative statute.

If asked why the law was declared unconstitutional, many would rightly respond, “because video games are protected by ‘free speech.’”  That’s the short version at least.  The longer one goes something like this.

When looking at the California law, the Supreme Court majority decided the following:

“California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive.”

See the Supreme Court has this legal concept called “strict scrutiny,” which means in this case that when a law seeks to regulate speech (or expression more generally), it must have  a “compelling interest” and have a law that is narrow in scope and specifically tailored to further that interest.  Here’s what the court said:

“The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children.
…
Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint.
…
And finally, the Act’s purported aid to parental authority is vastly overinclusive. Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games.”

The problem with the California law then, in the eyes of the court, was that the evidence identifying the causal link between video game violence and child aggression was spotty at best, and that in addition, the law was both “underinclusive,” because it was singling video games as opposed to including movies, TV, etc. and “overinclusive,” because it restricted the sale of video games to all minors, even those whose parents don’t have a problem with their children playing violent games.

Of course, nowhere in the court’s majority opinion did the justices claim that video games can’tbe detrimental to the development of children, or that if such a link were better proven, a more narrow law could not be justified.  In other words, there is nothing within this decision to rule out the legitimacy of regulating the sale of video games to minors in the future.

And indeed, the current stance of the court, as arrived at through earlier precedent, leaves it in a precarious place.  Justice Breyer notes in his dissent that:

“Today the Court makes clear that a State cannot prohibit the sale to minors of the most violent interactive video games. But 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 13year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?”

But while this last point might leave lawyers and justices in an awkward spot, I’m sure most gaming enthusiasts aren’t too worried.  In the end, who cares about all of the legal mumbo jumbo as long as people are allowed to make games and consumers are allowed to purchase them.

This is where I’d like to take a moment and have the those in the “gaming community” ask ourselves if we can imagine a game that is worth regulating.  Could someone create something so foul and repugnant that no one can think of any good reason to make it easier for kids to get their hands on and play?

Because a lot of politics is about posturing, and though gamers want to present a united front in defense of video games in the face of those who would regulate and ban them, I can’t imagine that none of us think there aren’t instances in which it is alright to regulate them.

At the end of the day gamers are left the fact that “free speech” is not so broad a protection as to prohibit any and all possible forms of regulation; the legal reality is that forms of expression have been banned in the past and will be so in the future, and attempts to do so will be completely within the bounds of the Constitution.  So while the court’s decision doesn’t give into the fear-mongering common in the mainstream media (especially Fox News), it also doesn’t rule out the possibility of regulating video games in a more confined way in the future.