A Legal Analysis of Brown v. EMA

July 8, 2011 -

            No doubt everyone has heard the good news out of the Supreme Court last week. Video games are saved from government censorship based on violent content, California’s law prohibiting the sale of violent video games to minors is invalid, good times had by all. This article is for those curious as to the how and why of this outcome, and will take readers through the Court’s principal opinion written by Justice Scalia (which is the governing law and will be used as precedent everywhere in the US from now on) as well as touch on a few points from other opinions penned by other Justices.

 

 

            First off, in determining whether a law restricting expression is constitutional, the Court must examine whether or not the subject matter to be restricted is in fact “speech” for First Amendment purposes. If so, the Court will see whether the law in question is regulating a pre-existing category of unprotected speech like incitement or obscenity. Upon finding that the law is restricting speech that is not unprotected, the Court will go on to examine whether the regulation is based on the content or the message of the speech, or if it is simply regulating the time, place, and manner in which the speech can be performed. If the law turns out to be based on the former, then the government has quite the heavy burden of proving that it passes a test called Strict Scrutiny—which is perhaps the most difficult constitutional test in American jurisprudence (and for good reason). I will go into more detail on Strict Scrutiny below.

 

            The Supreme Court has finally acknowledged the status of video games as having as much expressive value as film, television and books and as deserving of the same protection under the Constitution. Acknowledging that many games contain political speech and social messages as well as being entertainment, Scalia writes: “…it is difficult to distinguish politics from entertainment, and dangerous to try.”

 

            After a history lesson on the failures of historical crusades against violent books, films, and comics, the Court dismisses California’s argument that the interactive nature of games makes them distinguishable from other media. Choose-your-own-adventure-type books are also interactive in that the young readers, by choosing which page to turn to, contribute to the outcome of the story and sometimes grisly fate of the characters. The Court goes on to say that indeed any good literature is interactive—the reader is drawn in, identifies with the characters, and takes on the characters’ struggles as their own.

 

 

            Though the freedom of speech found in the First Amendment is far-reaching and wonderful, it is not absolute. Over the years, the Supreme Court has carved out a handful of very specific categories of speech that are not protected by the Constitution. This includes the incitement of imminent unlawful activity, fighting words (face-to-face insults causing a breach of the peace), defamation, and sexual obscenity (to name a few). The law at issue in this case seeks to create a new category of speech (a task that has historically been reserved only for the Supreme Court itself), namely the depiction of violence when distributed to minors.

 

            Last year, in the case of United States v. Stevens, the Supreme Court held that new categories of subject matter cannot be added to ranks of unprotected speech by a legislature who has deemed them too harmful to be tolerated. In that case, Congress had passed a law purporting to strip First Amendment protection from depictions of animal cruelty. The Supreme Court struck down the law, saying that the idea that a legislature could do so by “weighing the value of a particular category [of speech] against its social costs and then punishing it if it fails the test” is “startling and dangerous.” At GamesLaw, we predicted that the outcome of Stevens would have an effect on the Brown case (then called EMA v. Schwarzenegger). As predicted, the Court declared that Stevens controls this case. Therefore, California’s attempt to add violence disseminated to minors to the list of unprotected categories of speech was invalid.

 

            The Supreme Court itself would not acknowledge violence as a new category of unprotected speech because there was a lack of historical basis for doing so. All throughout our history we have given children violent books to read. Scalia specifically cites examples from Grimm’s Fairy Tales including the ending to Snow White describing the villain being forced to dance in red-hot shoes until her death, and Cinderella, wherein the step-sisters have their eyes pecked out by birds after (my favorite) cutting off parts of their feet to try and fit into the glass slipper. Because of this, it can hardly be argued that the dissemination of violent material to children was an evil that the country has always been wary of and wanted to prevent. Acknowledging Justice Alito’s findings that many games’ depictions of violence were “disgusting”, Scalia points out that “disgust is not a valid basis for restricting expression.”

 

            The monumental task of passing the Strict Scrutiny test can only be accomplished if a content-based regulation of protected speech is narrowly tailored to serve a compelling government interest. Examples of such interests are national security and public safety. The language of the test varies a bit, and interestingly in this opinion Scalia’s formula puts the need for a compelling state interest ahead of the need for narrow tailoring. This foreshadows his discussion and findings that California’s law did not serve a compelling state interest and so the lack of narrow tailoring using the least restrictive means of accomplishing any of its goals deserved minimal attention.

 

            California put forth a couple of different interests which it was claiming to further, and each one was refuted by the Court. The first claim is that the state has an interest in protecting children from the harm that results from their exposure to violent games. While protecting children from actual harm is certainly a compelling interest, studies showing that violent games have negative effects on children do not distinguish them from the effects that E-rated games and cartoons have. Even the state itself admits that it could not show a direct causal link between violent games and harm to minors. The Court goes on to say that because California has observed the supposed ill effects from non-violent games and cartoons but has not tried to restrict children’s access to them, their regulation of the game industry looks more like an effort to disfavor a particular speaker or viewpoint. In short, they have singled out the game industry and given no good reason why.

 

            California’s other interest is to help parents who want to keep violent games out of their kids’ hands to do so—in effect, the state would keep an extra eye on the children whose parents could not monitor all of their purchases. However, the voluntary ESRB ratings as well as the cooperation of retailers in enforcing the age restrictions accompanying the ratings accomplish this goal for the most part—a result that has been confirmed by the Federal Trade Commission. Even though some M-rated games slip through the cracks into minors’ hands, “[f]illing the remaining modest gap in concerned-parents’ control can hardly be a compelling state interest.”

 

            Even assuming hypothetically that the assistance of parents in sheltering their children from violent video games is compelling, California’s law is not narrowly tailored to do so. In order to be narrowly tailored, a law must do just enough to accomplish its stated goal and no more. This law is not narrowly tailored because it prevents children whose parents are permissive or indifferent to them buying and playing violent games from doing so—it deprives them of the opportunity to receive speech even if their parents have deemed it age-appropriate. Because of the law’s over-inclusiveness and favoring only what it thinks parents ought to want, the law is not narrowly tailored to the state’s objective of assisting parents and is again invalid.

 

            Justice Alito does not agree with the majority’s reasoning as articulated in Scalia’s opinion and so he wrote his own, the dicta (reasoning and conclusions) of which can also be persuasive to courts in the future. Although long, the opinion can be summed up quite simply as this: The contested law does not define “violent video games” clearly enough to give the public notice of the specific conduct and depictions that are allowed and disallowed, and is therefore void for vagueness.

 

            This is the case we’ve all been waiting for. I personally dreamed about arguing a case like this in my teenage years as I watched the anti-FPS and -GTA crusades unfold, and the prospect of protecting the game industry from censorship is what made me decide that I wanted to be an attorney. Now that the battle is fought and won, I’m ecstatic to see games finally being recognized by our highest Court as a legitimate art form deserving of every bit as much of the Constitution’s respect as time-honored literature (albeit I am a little sad that I didn’t get to participate in the suit myself). Because of my special interest in the intersection of games and the First Amendment, I have spent the past two years writing about this case for GamesLaw and am truly honored that I was able to help people understand it better and take part in robust discussions. I’d like to give a huge hats-off to all of the attorneys who represented the industry as well as the judges and Justices who have upheld a centuries-old founding principle in the face of rapidly advancing technology.

 

            Good game.

 

GP: Thanks to Elizabeth Surette, a Massachussetts attorney, for writing this article, and Dan Rosenthal, a Maryland attorney, for editing it. Surette and Rosenthal both focus their practices on the games industry.

Comments

Re: A Legal Analysis of Brown v. EMA

IMO, the supreme court should throw out all obscenity and indecency laws for all media, as they also have no basis in the constitution. As Scalia said "Disgust is not a valid basis for restricting expression, and that is exactly what obscenity and indecency laws are based upon.

 "No law means no law" - Supreme Court Justice Hugo Black on the First Amendment

"No law means no law" - Supreme Court Justice Hugo Black on the First Amendment

Re: A Legal Analysis of Brown v. EMA

Maybe then those "Think of the children" types will think of their own chidlren for a change.

Re: A Legal Analysis of Brown v. EMA

Preposterous. Everyone knows that the "Think of the children" types don't have children of their own.

 

 

"And though we may pledge fanboy allegiances to different flags, deep down inside we all serve one master, one king. And his name... is GAMING! FOREVER MAY HE REIGN!"

http://www.examiner.com/video-games-in-atlanta/mike-chrysler

Re: A Legal Analysis of Brown v. EMA

That or they have nannies to do the thinking for them. I mean they must be well off, otherwise how else would they have time to worry about this?

Re: A Legal Analysis of Brown v. EMA

Game, set, match?

Hardly. There is still ample room for a law to restrict the sale of certain games. Don't forget that there are forms of media, the sale of which to minors is illegal.

The law must merely be specially writen to be as narrow as possible.

 

--Malo periculosam libertatem quam quietum servitium

Malo periculosam libertatem quam quietum servitium

Re: A Legal Analysis of Brown v. EMA

I think you mistook my meaning. Anyone following this case knows that it went back and forth like a tennis match. I wasn't at all implying that this is the end-all, be-all of video game legislation. I know all too well that this is more than likely just the beginning.

Secondly, so Andrew doesn't have to say it... Please use the reply button when responding to a specific post.

 

 

"And though we may pledge fanboy allegiances to different flags, deep down inside we all serve one master, one king. And his name... is GAMING! FOREVER MAY HE REIGN!"

http://www.examiner.com/video-games-in-atlanta/mike-chrysler

Re: A Legal Analysis of Brown v. EMA

He probably did.

If you're not logged in and you click the Reply button, it sends you to a login prompt, and after you log in it dumps you to a comment box for a new post instead of a reply.

It's not user error, it's designer error.

Re: A Legal Analysis of Brown v. EMA

Game.

Set.

Match.

It's great to be an American.

 

 

"And though we may pledge fanboy allegiances to different flags, deep down inside we all serve one master, one king. And his name... is GAMING! FOREVER MAY HE REIGN!"

http://www.examiner.com/video-games-in-atlanta/mike-chrysler

 
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Sleaker@quiknkold - seems like all that page is is a bunch of random developer opinions and rumors that we're supposedto do what with?09/19/2014 - 9:31am
Kronoas an opportunity to push back against them. It's one of the things muddling the issue. @conster A new hashtag would do nothing to improve anything. Trolls will simply follow to the new hashtag, and it will confuse the issue for anyone attempting to09/19/2014 - 9:25am
Krono@Andrew aaah. Yes, I'm sure there's some of that. Part of the problem is many of the people pushing gender issues are not very nice people. Basically the latest incarnation of moralists we've seen in the past couple decades. Naturually some will take this09/19/2014 - 9:23am
quiknkoldhttp://www.nichegamer.net/2014/09/real-gamedevs-sound-off-regarding-the-gamergate-controversy/09/19/2014 - 8:35am
MaskedPixelanteMeanwhile, in news that actually DOES matter, Scotland voted "NO" to Scottish independance.09/19/2014 - 8:20am
ConsterSeriously? "We shouldn't make a new hashtag - it's better to associate ourselves with psychos than to decrease our visibility"?09/19/2014 - 7:54am
Michael ChandraI forget what it is exactly, but there already is another hashtag that some use, exactly to separate themselves from the abusive behaviour. So don't bother lying to me.09/19/2014 - 7:06am
quiknkold2 to 3 or more09/19/2014 - 6:53am
quiknkoldMichael Chandra : I'll say this. The only reason they havent used another hashtag is because it would look like a form of dividing the arguement. Using another Hashtag has come up, and they feel like if they made a new hashtag, it'll split the debate from09/19/2014 - 6:53am
Michael ChandraYou want a debate? Build a wall between you and the poisoned well. Make clear you despise it, despise the behaviour. Then get into the other issues you are troubled with, and don't say a single word again about the poisoned well.09/19/2014 - 3:46am
Michael ChandraAnd someone claiming #notyourshield was to be taken serious, when chatlogs show they wanted it going to hide even more harassment behind? Yeah, not buying a word you're saying. You poisoned your own well.09/19/2014 - 3:45am
Michael Chandraallegedly fired over giving a game a mediocre review and the company threatened to pull ads? Sorry but I ain't buying this.09/19/2014 - 3:45am
Michael ChandraBut people arguing this is horrible and just about ethics, even though there's very little support that journalistic integrity was actually violated here, while they never spoke up when a journalist was09/19/2014 - 3:43am
Michael ChandraIf people start with condemning the way GamersGate was used as a misdirection, then use a better hashtag, that would work in convincing me they mean it.09/19/2014 - 3:43am
Andrew EisenOoo, this one came down to the wire! https://www.kickstarter.com/projects/749082525/nefarious09/19/2014 - 1:03am
Andrew EisenI don't doubt that many are truly interested in journalistic integrity. The problem I'm often seeing is they seem to have no idea how or where to talk about it.09/18/2014 - 11:46pm
Andrew EisenDidn't word that well. Busy at work. I've seen people claim that GamerGate is solely about ethics and transparency in games journalism and then go on to show that what they're really after is silencing those who talk about gender issues in games.09/18/2014 - 11:45pm
Kronodebate. Becaus apparently people who only post on Reddit are supposed to police twitter before they're allowed to question anything about the people involved.09/18/2014 - 10:40pm
KronoI highly doubt many, if any are using journalistic integrity as a cover for harassment. The people harassing are essentially trolls. They aren't interested in subtle. More often it's othe other way around. People use "but X is being harassed" to shut down09/18/2014 - 10:38pm
Andrew EisenAnd exacerbating everything is the fact that all the cries of ethics violations have been obnoxious and easily proven false.09/18/2014 - 8:59pm
 

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