Supreme Court Strikes Down Violent Videogame Law in Brown v. EMA
After nearly eight months, the videogame industry can breathe a collective sigh of relief as the Supreme Court of the United States (SCOTUS) handed down their decision in the violent videogames case, Brown v. EMA. By a vote of 7-2, the California law, which imposed a $1000 fine on vendors caught selling or renting violent videogames to minors, was ruled unconstitutional due to the fact that it did not comport with the First Amendment. So, how did it all go down and what does this mean for the future of the gaming industry? Let's hash it out.
The opinion of the Court, delivered Monday, was written by Justice Antonin Scalia with support from Justices Ginsburg, Kagan, Kennedy, and Sotomayor. Justice Samuel Alito filed a concurring opinion along with Chief Justice Roberts while two dissenting opinions were offered by Justices Breyer and Thomas.
In the Court's opinion, Scalia makes the most important declaration:
"Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And "the basic principles of freedom of speech[...]do not vary" with a new and different communication medium."
This is an important distinction as one of the key arguments of California's case was that videogames are such a new and distinct medium that they might not be protected equally. While Justice Alito filed a concurring opinion, he cautioned that the Court might be too quick to rule out the possibility that videogames, or other new technologies, may need to be considered differently.
"In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution," offered Alito in his concurring opinion. "We should make every effort to understand the new technology. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar."
Although he brings up a worthy point for discussion, videogames, as we currently understand them, are not fundamentally different from the older forms of media that are currently protected under the First Amendment. However, it's impossible to predict what form expressive speech might take as technology progresses and Alito's words could one day be prophetic.
One aspect of the SCOTUS decision that I find most intriguing is that both sides of the opinion seem to agree that California lost this case because the law that they were pushing was poorly written and not necessarily because their argument was without merit. In the Court's decision, Scalia comments on the fact that one major problem with the law was that it was not all-inclusive for minors.
"The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it's OK[...]That is not how one addresses a serious social problem."
On the other end of the spectrum, in his concurring opinion, Alito took issue with the vagueness of some of the wording in the law.
"In drafting the violent video game law, the California Legislature could have made its own judgment regarding the kind and degree of violence that is acceptable in games played by minors (or by minors in particular age groups). Instead, the legislature relied on undefined societal or community standards."
The big issue being pointed out here is that social standards that are used to determine obscenity were well established at the time of previous Supreme Court rulings. There was a publicly accepted standard of what was obscene, depictions of genitalia or sexual acts, when those landmark decisions were handed down. However, in this case, a social standard is unacceptable because there is no commonly agreed upon limit for what is "too violent." One needs to only watch the local nightly news to see depictions of gross violence to include beatings and murder or, as was pointed out by Scalia, to read a children's book such as Hansel and Gretel in which the protagonists kill the witch by burning her alive in an oven.
So, if the California law wasn't terribly far off-base in the eyes of the Court and was overturned mainly because of poor wording, does that mean that a more properly scripted bill could one day restrict the sale of violent videogames to minors? That is certainly a possibility but to achieve that goal would require a long, difficult battle. It took eight years from the time the original legislation was enacted until the SCOTUS decision was handed down. Future bills could be expected to take a similar lengthy traversal of the United States legal system. Also, just because one violent videogame law was agreed to be heard before the SCOTUS doesn't guarantee that any future legislation will receive the same privilege. The fact that a precedent has now been established providing videogames protection under the First Amendment means that future laws will have a far more difficult time achieving similar restrictions.
This was a huge win for the entire industry. Had this law been upheld it could have had a massive effect on the types of content that videogame publishers would have been willing to back financially. Now, without the fear of restriction, game developers are free to carry on designing the innovative products that we all know and love.
While many gamers and members of the enthusiast press were thrilled to hear the good news, others were less enthusiastic which I find puzzling. A statement that I saw echoed multiple times throughout the day after the decision came through was that the videogame industry now needs to step it up to justify the ruling. To me, this was a curious reaction and I'm willing to bet that those same people would have been crying in their Corn Flakes had the case gone the other way. I certainly won't argue that the gaming industry can't improve. However, I don't think developers need to validate the decision at all.
This case was about First Amendment rights, which protect the freedom of expressive speech, and not about the artistic integrity of videogames. In fact, the Court's decision does not come close at any point to having a discussion on the artistic merit of videogames. What they did say is that games are due the same rights as books and movies. As is true with other forms of "artistic" media, there are the great, the good, and the absolutely terrible creations. For every East of Eden there are 50 teen vampire novels. For every Mona Lisa there is an endless quantity of bad Photoshop art. Great videogames that have high artistic merit will continue to be the exception, not the norm, and there is nothing wrong with that. The fact that the industry now has the capability to continue progressing, without restriction, is worth celebrating for at least one day.
People were lambasting Leland Yee on Twitter for creating such a bad piece of legislation but I think that was a poor reaction too as we should be high-fiving the guy instead. Sure, this law wasted a lot of California's time and money. However, this sort of bill was bound to be created somewhere, at some time. We should be thankful that it was a poorly-worded hack job that had little chance of success.












