The Supreme Court today listened to the opening arguments from representatives for both the state of California and the Electronic Merchants Association on the highly significant violent video game case titled Schwarzenegger v. EMA. The case centers on the constitutionality of a California law that seeks to create government regulation of video game sales to minors that involve games featuring "deviant violence."
California’s representative, Zack Morazinni, was the first to provide his argument. Morazinni began to cite the case of Ginsberg v. New York, a case that allowed states to regulate the sale of sexual content to minors. He was quickly cut off by Justice Scalia, who asked the state to define what a "deviant violent video game" is.
Justice Scalia then added, "Some of the Grimm’s fairy tales are quite grim, to tell you the truth."
Morazinni tried to respond but Justice Scalia soon added, "Are you going to ban them, too?"
Justices Ginsberg and Roberts then began to question Morazinni on why the law should only apply to video games and not all other forms of media that feature "patently offensive violence."
The representative for California then cited evidence and studies that showed the violence in these games can be harmful to minors. The Justices however questioned the evidence and the results of the studies.
"One of the studies, the Anderson study, says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video," replied Justice Sotomayor.
The Justice then added, "So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?"
Following this, Justice Kagan returned to the question of what the state has defined as "deviant violence."
"Well, Your Honor, I think a jury could be instructed with expert testimony, with video clips of game play, and to judge for themselves whether," responded Morazinni before being cut off again by Justice Scalia.
Justice Scalia then stated that he was not concerned about the use of juries, but more how their use would affect the video game industry.
"I am convinced that the video game industry will know what to do," responded Morazinni. "They rate their video games every day on the basis of violence. They rate them for the intensity of the violence."
After making that point, Morazinni went on to define excessive violence as obscene like sexual content, which is not protected by the First Amendment. The Justices did not take well to the connection.
"You are asking us to go into an entirely new area where there is no consensus, no judicial opinions. And this is — and this indicates to me the statute might be vague," Justice Kennedy said.
"You are asking us to create a — a whole new prohibition which the American people never — never ratified when they ratified the First Amendment," Justice Scalia added. "They knew they were — you know, obscenity was — was bad, but — what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children? Does — will that affect them? Of course, I suppose it will."
Morazinni then conceded his remaining time to a rebuttal that would follow after the floor was given to Entertainment Software Association counsel Paul Smith to provide his argument for the EMA. Smith then began his argument by attacking the terminology used by the state of California in their legislation.
"California, as we have heard today, does not seriously contend that it can satisfy the usual First Amendment standards that apply to such a law," said Smith. "Instead it’s asking this Court to grant it a new free pass, a brand-new Ginsberg-like exception to the First Amendment that would deny constitutional protection to some ill-defined subset of expressive works, and I submit not just video games, but necessarily movies, books and any other expressive work that describes or portrays violence in a way that some court somewhere, some day, would decide is deviant and offensive."
The Justices then questioned Smith regarding the similarities to this case and that of Ginsberg v. New York, as brought up by Morazinni, and what made this case different. Smith responded that in Ginsberg v. New York, the court was able to rule in favor of New York due to science on both sides and common sense regarding sexual obscenity.
"Why isn’t it common sense to say that if a parent wants his 13-year-old child to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence upon small children and women and do this for an hour or so," Justice Breyer asked. "Why isn’t it common sense to say a State has the right to say, parent, if you want that for your 13-year-old, you go buy it yourself, which I think is what they are saying?"
Defending his position, Smith cited how it has been very common in the nation’s history to have its youth consume violence. Whereas sexual content has had quite the opposite history.
"We do not — the difference is we do not make films for children in which explicit sex happens," Smith answered. "We do make films for children in which graphic violence happens."
Chief Justice Roberts then cited some graphic gameplay scenes of Postal 2 to question Smith.
"So is it your position that the First Amendment could not prohibit the sale to minors of the video game that I just described," added Justice Roberts.
"My position is that there is not a violence exception to the First Amendment for minors and there should not be," Smith replied.
When pressured by the Justices to provide scientific evidence to support a First Amendment exception for violent video games Smith answered, "Well, I guess I can imagine a world in which expression could transform 75 percent of the people who experience it into murderers. That’s clearly not the way the human mind works."
The Justices did not want to agree that it is common sense for videogames to be protected by the First Amendment, with Justice Alito citing that games are "a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified."
"We do have a new medium here, Your Honor, but we have a history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling, our children are all going to be turned into criminals," retorted Smith.
The discussion also touched on how this violence links up to the narrative of games and thus makes this law a censorship of expression. Smith responded by linking the playing of a game’s violence by a minor to an actor portraying a role in a play.
"You are acting out certain elements of the play and you are contributing to the events that occur and adding a creative element of your own," Smith said. "That’s what makes them different and in many ways wonderful."
During his rebuttal, Morazinni was asked if Mortal Kombat would be considered a candidate for this law.
"I believe it’s a candidate, Your Honor, but I haven’t played the game and been exposed to it sufficiently to judge for myself," responded Morazinni.
"It’s a candidate, meaning, yes, a reasonable jury could find that Mortal Kombat, which is an iconic game, which I am sure half of the clerks who work for us spend considerable amounts of time in their adolescence playing," stated Justice Kagan.
Justice Scalia then quipped, "I don’t know what she’s talking about."
The Court has agreed to hear arguments about the case in April with its decision expected to be made before its summer recess in June 2011.
You can find the full transcript of the day’s opening arguments below.
