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.

In today’s installment, the State of California’s position is summarized. (As the Governor of California, Arnold Schwarzenegger’s name appears as the Appellant.)

For a summary of EMA’s positions, click here.

California’s Statute

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 the Entertainment Merchants Association (EMA) and the Entertainment Software Association (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.

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.