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.