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On November 2, 2010, the Supreme Court will hear arguments in the matter of Schwarzenegger v. EMA. This case is about a California law that bans the sale of certain violent video games to minors. This is an historic moment for video games – as this is the first time the Supreme Court has considered a statute directed to the video game industry.  A copy of the transcript of oral argument can be downloaded here.

(Both EMA and ESA are referred to here as ESA.  As the Governor of California, Arnold Schwarzenegger’s name appears as the Appellant.)

California’s Statute Barring Sales of Violent Video Games to Minors

This dispute arises over the enforcement of California Civil Code sections 1746-1746.5, which prohibits the sale of violent video games to minors under 18.

The statute defines a “violent video game” as one that depicts “killing, maiming, dismembering, or sexually assaulting an image of a human being” in a manner that meets all of the following requirements:

(1) A reasonable person, considering the game as a whole, would find that it appeals to a deviant or morbid interest of minors;

(2) it is patently offensive to prevailing standards in the community as to what is suitable for minors, and;

(3) it causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

The statute does not prohibit a minor’s parent or guardian from purchasing or renting such games for the minor. There is a penalty of up to $1,000 per violation, which may be lowered in the discretion of the court.

First Amendment Challenge to the Statute

California’s statute was challenged by ESA in 2005. A U.S. District Court barred enforcement of the statute on First Amendment grounds. Thereafter, the Ninth Circuit Court of Appeals ruled that the statute is unconstitutional.

State of California’s Arguments

In short, the State of California argues that the First Amendment does not restrict the sale of violent video games to minors. It contends that its statute serves “fundamental societal interests” of order and morality.

California’s argument starts with the assertion that the Supreme Court previously ruled that the First Amendment does not prohibit states from passing laws restricting children’s access to pornography. It argues that “[v]iolent video games, like sexual images, can be harmful to minors and have little or no redeeming social value for them.”  The brief notes that “the California Legislature . . . determined that offensively violent material is just as harmful to minors, if not more so, as sexual material.”

California argues that the Supreme Court “has recognized that minors’ First Amendment rights are often less extensive than those of adults.”  In support of its position that the First Amendment does not provide the same protections to minors, California cites a 2007 case in which the Supreme Court ruled that school officials did not violate a student’s First Amendment rights in sanctioning the student for displaying a banner that read “Bong Hits 4 Jesus.”

California contends that its video game statute – like restrictions on children’s access to pornography – is “premised upon society’s traditional interest in protecting children from harm and helping parents direct their children’s moral and social development.”

According to the State of California, minors are not entitled to the same First Amendment protections as adults for several reasons, including the following:

• Minors lack maturity and have an underdeveloped sense of responsibility which can lead to “impetuous and ill considered actions and decisions”;
• Juveniles are more susceptible to peer pressure; and
• Since the character of a minor is “not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.”

Based on these traits, California reasons “the California Legislature should have the flexibility to limit children’s access to a narrow category of offensively violent video games that depict and even reward gruesome violence such as decapitations, torture, and mutilation.”

In order to demonstrate that violent video games should not receive the full benefit of First Amendment protections, California argues that such games should be treated the same as obscene materials. To illustrate its point that there has historically been no distinction between violence and obscenity in the eyes of the law, California cites a 1956 statute from Rhode Island that bans the sale of the following to minors:  “comic books devoted to crime, sex, horror, terror, brutality and violence, and of pocket books, photographs, pamphlets, magazines and pornographic films devoted to the presentation and exploitation of illicit sex, lust, passion, depravity, violence, brutality, nudity and immorality.”

According to California, statutes like these show “society’s understanding that, just like sexual material, violent material can be harmful to the well-being of minors.”  In support of its position, California explains that

modern social science shows that consumption of violent material, and video games specifically, is significantly linked to increases in aggressive behavior, aggressive cognition, aggressive affect, cardiovascular arousal, and decreases in helping behavior. . . . These harms, while intrinsically detrimental to the individuals themselves, can manifest as an automatically aggressive response to others, resulting in hostility, verbal arguments, and physical fighting.

Despite its references to studies that link violent video games to antisocial behavior, in a later section of its brief, California argues that the Supreme Court’s analysis of the First Amendment does not require any proof of a direct causal link between the exposure to violent video games and harm to minors.

The State’s brief concludes its dissertation on the connection between obscene and violent material by remarking that:

It would be ironic indeed if the First Amendment were interpreted to permit states to assist parents in protecting minors from sexual material – depictions of images and acts that they may legally engage in after the age of majority – yet prohibit them from protecting minors from offensively violent material – depictions of acts that they may never legally engage in.

In support of California’s position that violent video games are uniquely qualified from exemption from full First Amendment protections, California explains that current technology permits a level of realism that was not previously available. On this point, California explains that

The level of graphic detail and realism contained in many modern violent video games is without historical parallel. As noted by one journalist, “[a]s the systems that run video games become more powerful, developers are able to add more complex elements to these games. The big one: Realism. With advanced 3D graphics, the characters in some modern games look so lifelike it’s actually frightening. But beyond just the graphics, creators have also been trying to make the game play more realistic as well.”

In an apparent attempt to demonstrate the depravity of the games targeted by the statute, California’s brief contains an extensive and graphic section describing scenes from the game Postal II.

The video game industry’s own classification of video game is used by California as a reason to limit their availability to minors. Specifically, California cites the  Entertainment Software Ratings Board’s various age-based ratings for video games (e.g., M for Mature) as an acknowledgment that some video game are inappropriate for children.

California concludes its brief by arguing that its statute is the least restrictive method of “helping parents direct the upbringing of children and protecting them from harm caused by playing offensively violent video games.”

Following California’s submission of its brief to the Supreme Court, EMA and several other entities filed briefs in opposition to California’s position.

Summary of ESA’s Arguments

In sum, ESA argues that video games deserve the full protection of the First Amendment.  It contends that the violence portrayed in video games should not be subject to any different treatment under the Constitution than violence depicted in literature, movies, art, or comic books.  ESA’s own summary of its position is that “with or without elements of violence, video games are as fully protected by the First Amendment as every other mode of expression.”

ESA’s argument begins by placing video games in context.  ESA describes various types of video games – ranging from Red Dead Redemption to The Sims and FarmVille.  ESA’s approach is educational – an apparent attempt to show the Court that there are more types of video games available than the violent examples (like Postal II) described by the State of California in its brief.  ESA paints a picture of broad cultural acceptance of video games as a form of entertainment.

ESA describes the industry’s rating system administered by the Entertainment Software Ratings Board and highlights the high rate of voluntary compliance with the ESRB’s ratings system among developers and retailers.  In support of its argument that the ratings deter children’s access to mature-rated products, ESA cites a 2009 FTC study that found that the video game industry does a better job than the movie and music industries in policing access by minors to age-inappropriate content.

In support of its assertion that video games are entitled to “full-throttled First Amendment Protection,” ESA posits that:

California fundamentally distorts bedrock First Amendment principles when it suggests that video games are entitled to lesser protection because their interactivity increases the impact of their expression on the viewer. Plainly, the Government is not entitled to regulate speech on the ground that it is particularly effective at conveying its message.

Focusing on the target of California’s statute – violence in video games – ESA argues that “depictions of violence have never been considered a category of unprotected expression.” In this regard, ESA discusses the central role of violence in literature:

[W]hether it be the “Odyssey, with its graphic descriptions of Odysseus’s grinding out the eye of Polyphemus with a heated, sharpened stake, killing the suitors, and hanging the treacherous maidservants;” or “The Divine Comedy with its graphic descriptions of the tortures of the damned; or War and Peace with its graphic descriptions of execution by firing squad, death in childbirth, and death from war wounds.

Pushing back against California’s efforts to conflate violent material with obscenity, ESA distinguishes the two by citing Supreme Court precedent that “obscenity is limited to ‘works which depict or describe sexual conduct.’”

In response to California’s citation to several statutes barring violent expression, ESA claims that California is engaged “in an effort to manufacture a tradition of regulation of depictions of violence” and explains that the statutes cited by California are constitutionally unenforceable.

In response to California’s citation to studies linking violent video games with antisocial behavior, ESA argues that

the evidence that video games cause any real harm to minors is paltry at best. The research cited by California has been resoundingly rejected by every court to have looked at it, and it both underproves and overproves the State’s claims: it does not show that video games cause actual harm to minors, and it purports to find the same measured effects for a wide array of stimuli, including games designed for small children, television cartoons, or even a picture of a gun. If evidence of this sort were sufficient to justify treating expression as unprotected, the First Amendment would mean very little.

Addressing California’s position with a broad brushstroke, ESA explains that

history teaches that every new form of media is met with concern that it will undo the youth of the nation. Pulp novels, movies, and the Internet have all been subject to similar attempts at censorship, complete with purported social science support. In each case, this Court has refused to take the “starch” out of strict scrutiny review, and has treated the regulations as presumptively unconstitutional.

ESA concludes that, if the Supreme Court determines that California’s statute is Constitutional, a “nearly impossible” burden would be placed on retailers to determine whether any particular video game violates the law and that the “only rational response might well be to stop selling video games to minors altogether.”

Oral arguments on Tuesday, November 2, 2010, may shed light on the Court’s views on these issues.

About Us

Stephen Riden is a partner at Beck Reed Riden LLP, Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals.  We focus on business litigation – including contract, copyright, trademark, unfair competition, and healthcare litigation – as well as labor and employment, trade secrets, noncompetes, and alternative dispute resolution.

Unbeknownst to just about everyone, buried deep within the recently-enacted “Act Relative to Economic Development Reorganization” is language that significantly amends the Massachusetts Personnel Records Statute (Chapter 149, Section 52C), placing new administrative burdens on Massachusetts employers. Under the amendment, which became effective August 1, 2010, employers with at least 20 employees are now obligated to “notify an employee within 10 days of the employer placing in the employee’s personnel record any information to the extent that the information is, has been used or may be used to negatively affect the employee’s qualifications for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.” Translated into English, this means that any time a document is created that could negatively impact an employee’s employment, and the employer retains the document, the employer must notify the employee of it within ten days of the document’s placement in the employee’s personnel record.

The term “personnel record” is defined very broadly. It includes any document kept by an employer that is or has been used or may be used to affect an employee’s employment, promotion, transfer, compensation, or discipline. This includes documents that may be maintained some place other than in the employee’s formal personnel file; for example, in files kept by an individual manager or supervisor. Consequently, this amendment could be interpreted as requiring employers to notify employees any time a manager drafts a quick note to herself about problems with an employee’s performance, or two supervisors exchange emails debating whether an employee should be promoted. Arguably, as long as the document is retained in some fashion – either in hard copy or electronically – the amendment requires that the employee in question be notified of it.

In a small nod to employers, the amendment limits the number of times an employee may ask to review his personnel record to twice during a calendar year. However, this limitation does not apply to record reviews that stem from the placement of a negative record in an employee’s file. The amendment does not change the employer’s obligation to produce the personnel record within five business days of the employee’s request. Failure to comply with the statute can result in a fine of between $500 and $2,500 for each violation. The Attorney General is responsible for enforcing the statute.

The personnel records amendment raises a number of significant questions for employers. What constitutes negative information? Does it really include a manager’s quick note about an employee written on a piece of scrap paper? And does tossing the note into her desk drawer mean that the manager has “placed” it in the employee’s personnel record? If so, what form does the employee notification take? Must a copy of the note be shown to the employee, or is it enough simply to notify him that the note was made? Unfortunately, the amendment does not come with an instruction manual, so only time will tell. Until these issues are settled by a judge, or the Attorney General issues some guidance, we recommend that employers proceed cautiously. All documents concerning an employee’s employment – positive and negative –should be kept in a centralized human resources file. Managers and supervisors should be cautioned that keeping their own “shadow” personnel records does not alleviate the obligation to notify employees of negative information that may be placed in those files. Procedures should be developed for notifying employees any time negative information is added to their personnel records. Such procedures should be clearly communicated to managers, supervisors, and anyone else who may handle employee information.

For more information, contact Stephen Reed: sreed@beckreed.com or (617) 500-8662. To learn more about Beck Reed Riden LLP, click here.