Monday, April 26, 2010

Violent Video Games and the Supreme Court

by Daniel Bullard-Bates

The Supreme Court of the United States granted certiorari this morning in Schwarzenegger v. Entertainment Merchants, a case regarding the constitutionality of a state law which may have serious ramifications for the distribution of video games. The state of California made the appeal, asking that the Court enable states to completely ban the sale or rental of violent games to customers less than eighteen years of age.

The grant of certiorari had been on hold for some time, pending the decision in another case, U.S. v. Stevens, in which the Justices refused to abridge the right to free speech regarding the depiction of animal cruelty on video tapes. They struck down a federal law banning said depictions in products intended for sale or profit. The video game case is more specific: While the tapes depicting animal cruelty are legal for sale or profit in general, this case deals more narrowly with the sale of violent video games to minors.

In 2005, the Ninth Circuit Court of Appeals stated that a law banning the sale of violent video games along with other obscene content was not the least restrictive means of keeping violent, objectionable material out of the hands of minors. If the Supreme Court were to do as the state of California requests in their appeal, this case would allow a constitutional standard which previously applied only to obscene materials to also apply to violent materials, allowing states to ban violent video game sales to minors in a manner similar to the restrictions on pornographic materials.

The standard that would apply is derived from the 1968 case Ginsberg v. New York, which allows states to pass laws barring minors’ access to obscene materials if the legislature determines that exposure to such materials would be harmful.

If this standard were to apply to video games, it is important to note that we are not talking about the possible banning of violent games, but the application of stricter restrictions on games being sold to minors. It may also affect the ratings system: Currently, most video games which depict extreme violence are given the rating of “Mature,” which means that it is legal to sell to customers seventeen and older. That age would be raised to eighteen, and it is possible that some violent titles previously rated “Teen” might not be legal to sell to minors either, though this is speculation on my part.

Alternatively, extremely violent video games might be given the rating of “Adults Only,” which already restricts sale to those eighteen or older, but most retail stores currently do not carry AO titles, and Microsoft, Sony, and Nintendo do not allow AO titles to be licensed for their consoles. It is unlikely that the ESRB would change their ratings system if only a few states adopted laws which restricted violent video game sales, but if the practice were to become more widespread it seems more likely. This could actually have a positive effect: If the most popular violent titles were to be rated “Adults Only,” the console manufacturers and retail outlets might loosen their restrictions on AO-rated titles, allowing greater freedom to video game designers. It seems unlikely, however, that AO titles would sell as well at first, since there is a negative stigma attached to the rating.

One way or another, the decision in this case may have a serious impact on the sale of video games in the United States. The case will be heard by the Supreme Court during its next term, which starts on October 4th.

(via Scotusblog)


  1. Would this put video games legally more on the restrictiveness level of porn than say, movies or music? That's my only concern with this stuff, that video games would be classified as more potentially harmful for young people than any other form of media. Also, I think it's hillarious that it has Schwarzenegger's name on it, because he has been a purveyor of simulated violence and inspired so many people of my generation to act out imaginary violence before we were 18 yrs old. Also, T2 (and probably one or two other Schwarz. movies) inspired violent video games, with his likeness in them. Awesome.

  2. I think the more likely effect of a ruling that restricts the sale of violent games would be to further bifurcate the categories of "adult" and "child" games. Many more games would either be aimed at appealing solely to a certain age group, which in a way would fragment the gaming community. Additionally, such a ruling would have a chilling effect and lead more developers to downplay violence in their titles. This means games that portray blood or use real (as opposed to, say, laser) guns would become rarer.

    As for whether this is a good balance if limiting speech to protect children, I think not. Parents should be responsible for raising their children and policing the content to which they are exposed. This is especially true given that consoles are played in the home, and thus, parental oversight is not that burdensome.

  3. Well, the thing is parents aren't doing a good job in raising their kids. I feel that even though the government is putting an extra barrier to prevent children from buying M rated material, their parents will still spoil their kids if they're being whiny brats.

    There's a lot of similarly violent material on prime time television that children also have access too. However, I would argue that Modern Warfare 2 is a completely and more dangerous experience that watching Band of Brothers. Once agency is enabled, the perspective and interpretation of the actions portrayed on screen are dramatically skewed. BoB is not happening to the viewer. MW2 is happening to the user, you take your sniper rifle and shoot someone in the face for trophies and achievements.

    I think it's a step in the direction but at the end of the day, parents need to do a better job at curating what their children interact with.


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