The Supreme Court of the United States today agreed to hear the State of California's appeal in Schwarzenegger v. Entertainment Merchants Association, concerning a state law which banned the sale or rental of violent video games to children.
California’s law defines a violent video game as one which depicts "killing, maiming, dismembering, or sexually assaulting an image of a human being" and also matches either of the boxes below:
(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.
Or the game:
Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.
Factors determining whether that latter definition has been met "include infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victim’s body, and helplessness of the victim.” The law required any such game imported into or distributed in California to “be labeled with a solid white ‘18’ outlined in black" to appear on the front of the package and be “no less than 2 inches by 2 inches” in size. Persons selling or renting these games to minors would be subject to up to a $1000 civil penalty.
The law has never been enforced, having been blocked by courts since its signing in 2005. Last February, the United States Court of Appeals for the Ninth Circuit struck down the law (including Judges Alex Kozinski and short-listed Sidney Thomas, a significant ideological spread), rejecting California's efforts to expand the definition of obscenity-from-which-minors-can-be-protected from sexual content into violent content as well, then determining that this law was not the least restrictive means available to protect the state's proffered interest in protecting minors. Among other things, the panel noted that the nature of the harm was not an imminent one:
Throughout this litigation, the parties have disagreed as to what extent Brandenburg v. Ohio applies to this case. The dispute stems from the fact that one of the compelling interests advanced by the Legislature is the prevention of “violent, aggressive, and antisocial behavior.” One of the Legislature’s findings was that “[e]xposing minors to depictions of violence in video games . . . makes those minors more likely . . . to exhibit violent antisocial or aggressive behavior.” However, “[t]he government may not prohibit speech because it increases the chance an unlawful act will be committed ‘at some indefinite future time.’” It “may suppress speech for advocating the use of force or a violation of law only if ‘such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’”
Nor could California prove that this legislation was narrowly tailored to meet the harms it was trying to thwart:
Whether the State’s interest in preventing psychological or neurological harm to minors is legally compelling depends on the evidence the State proffers of the effect of video games on minors. Although the Legislature is entitled to some deference, the courts are required to review whether the Legislature has drawn reasonable inferences from the evidence presented. Here, the State relies on a number of studies in support of its argument that there is substantial evidence of a causal effect between minors playing violent video games and actual psychological harm....
[Reviews the studies, and concludes:]
Nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology as they relate to the State’s claimed interest. None of the research establishes or suggests a causal link between minors playing violent video games and actual psychological or neurological harm, and inferences to that effect would not be reasonable. In fact, some of the studies caution against inferring causation. Although we do not require the State to demonstrate a “scientific certainty,” the State must come forward with more than it has. As a result, the State has not met its burden to demonstrate a compelling interest.
And less restrictive means remain available:
[T]he State argues that the ESRB rating system, a voluntary system without the force of law or civil penalty, is not a less-restrictive alternative means of furthering the Legislature’s purported compelling interest. Acknowledging that the industry has implemented new enforcement mechanisms, the State nevertheless argues that the ESRB does not adequately prevent minors from purchasing M-rated games.... the State does not acknowledge the possibility that an enhanced education campaign about the ESRB rating system directed at retailers and parents would help achieve government
interests.... The State appears to be singularly focused on the “most effective” way to further its goal, instead of the “least restrictive means,” and has not shown why the less-restrictive means would be ineffective.
In the wake of
last week's 8-1 decision striking down the federal statute banning depictions of animal cruelty, it's a bit surprising for the Court to have taken up a similar case in which the lower court likely rendered the correct decision (and on which the Courts of Appeals are united). At the same time, however, we know
this Court isn't a big fan of minor's free speech rights, and there may be some reticence about the extent to which the Ninth Circuit overruled California's elected officials on its factual findings.
The case will be argued sometime this fall.