The United States Supreme Court set a landmark ruling today by declaring video games are owed the same legal protection as other media, such as movies, music, or print media.
The case came to the nation’s highest court in response to a California law banning the sale of certain games to minors. Violation of this ban would have resulted in criminal penalties for each transaction. This goes a step beyond the Parental Advisory stickers or theater policy’s about children in R-rated movies. Enforcing those restrictions is essentially a voluntary policy from the business owner/operator. Letting a 14 year old into to see the latest Saw film doesn’t result in a night in county lockup. If California’s law had stuck, it would have put video games into the same category as alcohol or tobacco – selling an M-rated game to a teenager could result in severe monetary punishment and possible jail time.
I feel Justice Scalia (voting in the majority) summed up the Court’s opinion very well by stating that “[t]here is no tradition in this country of specially restricting children’s access to depictions of violence.” He went on to make comparisons to Grimm’s Fairy Tales and earlier attempts at restricting media through comic books and music’s lyrical content. He also cited examples of the rare times the Supreme Court has restricted First Amendment access, most notably Ginsberg v. New York, which saw sexually explicit magazines removed from children’s access. This decision essentially determines that gratuitous violence is not, in itself, obscene. Even interacting with the violence is not obscene; while publications that incite a “prurient interest” are. Specifically, Scalia stated “[o]ur cases make clear that obscenity covers only depictions of sexual conduct, and we have previously rejected attempts to shoehorn violence into that category.”
The decision was not unaninmous, though it did come with an arguably significant win, 7-2. The two dissenting votes came from Clarence Thomas and Stephen Breyer. The supporting votes came from Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, Antonin Scalia, Samuel Alito, and John Roberts. Justices Alito and Roberts supported the law being overturned with reservations about “the effect of exceptionally violent video games on impressionable minors, who often spend countless hours immersed in the alternative worlds that these games create.” It appears they would be willing to change their opinion in light of more definitive scientific and medical proof that violent games have a detrimental effect on these children. California’s current medical evidence “show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game,” according to Scalia.
Breyer does make a good counterpoint in his dissent, asking “[w]hat 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 13-year-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?” Perhaps Breyer is right but for the wrong reasons. Maybe the government shouldn’t restrict the sale of “a magazine with an image of a nude woman” to that boy. Nor should they restrict the sale of the game to him. These are both jobs a capable parent can do. Know what they’re playing (or reading or watching or hearing) and make sure it’s age appropriate. This may have been difficult for parents in the 1980s and ’90s when home console gaming first became prevalent. Some of those parents simply never could figure out how to play even the simplest video games. But those early gamers are parents now and they play games with their children. They are able to read and understand an ESRB rating just as capably as their parents knew what PG-13 meant.
And that ESRB rating was a powerful point in the $25 billion gaming industry’s defense against California’s law. Essentially the industry has been voluntarily policing itself for years through clearly marked packaging and voluntary sales restrictions. Many retailers, like theater chains, have self-imposed restrictions on selling M-rated games to minors. There was a time after the Parental Advisory stickers were added to CDs that major retailers, like KMart, simply refused to sell carry them. While game stores have not gone to that extreme, they do have policies about content and minors. Just before Christmas last year my 16 year old nephew went into a mall GameStop with his mother and wanted to buy Fallout: New Vegas. The helpful employee not only refused to sell it to him without his mother’s approval, but actually went on to explain why it earned the M-rating and cited specific examples to help her decision. He also recommended other M-rated games that contained fewer of elements she found objectionable.
My sister did buy the game, but told her son he couldn’t have it until after Christmas and until after she’d talked with his uncle, the most qualified gamer she knows personally (that’s me). Incidentally, I see on my Friends list that he still has earned no trophies for the game, meaning his mother responsibly made an informed decision about her child’s entertainment without government intervention.
The law has now been rejected by the highest court in the United States, meaning it’s completely dead at this point and ruled unconsitutional. If California, and the other states that supported them, want to continue the fight they will need to go back to the drawing board. The court’s decision is not irreversible, especially if they rewrite the law to be more clear in what the state considers objectionable. It’s also important to note that the decision applies merely to violence. Electronic interaction of a “prurient” sexual nature (such as the infamous San Andreas “Hot Coffee” incident) still falls under the 1968 obscenity ruling.
What do you think? Is this a good ruling? Will the law come back in a new form? Will anything actually change in the industry with this decision? Sound off in the comments!
