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Supreme Court Hears Case Over Sale Of Violent Video Games

by Sean P. Aune | November 3, 2010November 3, 2010 12:00 pm PDT

Did you ever think you would hear a United States Supreme Court Justice utter the words “Mortal Kombat“? What about “Vulcan”? Yeah, not exactly something you would think you’d hear in those hallowed chambers, but those very phrases, amongst others, were uttered yesterday as the court heard arguments about the constitutional merits of a law regarding the sales and rentals of violent video games to minors in California.

Back in 2005 the state of California passed a law that would ban the sale or rental of certain video games to minors. The law stated that games that would be considered to fall under this law would be defined as “where a reasonable person would find that the violent content appeals to a deviant or morbid interest of minors, is patently offensive to prevailing community standards as to what is suitable for minors, and causes the game as a whole to lack serious literary, artistic, political, or scientific value for minors”. While the law would allow parents and legal guardians to still purchase the games, any store found selling one of these games to a minor could face a fine of up to $1,000. It was the fine that brought the Entertainment Merchants Association in to the situation and has caused the case to move all the way up to the United States Supreme Court.

U.S. Supreme CourtWhile one can argue for either side of the ruling endlessly, this will be the final deciding factor in this particular case and will set precedents in the rest of the country. The Justices are allowed to ask all the questions they want, and you can’t always tell what exactly what they are thinking by their questions, but some of them were … intriguing … to say the least.

Justice Scalia: What’s a deviant violent video games? As opposed to what? A normal violent video game?
Morazzini (lawyer for California): Yes, your honor. Deviant would be departing from established norms.
Justice Scalia: There are established norms of violence? … Some of the Grimm’s fairy tales are quite grim, to tell you the truth.
Morazzini: Agreed, your honor. But the level of violence ….
Justice Scalia: Are they okay? Are you going to ban them too?
Morazzini: Not at all, your honor.

The wording of “deviant” is similar to the “offensive” clause in pornography laws as they are always defined as “community standards”.  How do you determine what is “deviant”?  I feel Justice Scalia really hit the nail on the head as they are attempting violence into different categories which makes no real sense.

Justice Ginsburg: What’s the difference? I mean, if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm’s fairy tales? Why are video games special? Or does your principle extend to all deviant, violent material in whatever form?
Morazzini: No, your honor. That’s why I believe California incorporated the three prongs of the Miller standard (for identifying porn in legal cases). So it’s not just deviant violence. It’s not just patently offensive violence. It’s violence that meets all three of the terms set forth in … The California legislature was presented with substantial evidence that demonstrates that the interactive nature of violent — of violent video games where the minor or the young adult is the aggressor, is the — is the individual acting out this — this obscene level of violence.

Justice Kagan: Well, do you actually have studies that show that video games are more harmful to minors than movies are?
Morazzini: Well, in the record, your honor, I believe it’s the Gentile and Gentile study regarding violent video games as exemplary teachers.
Kagan: Suppose a new study suggested that movies were just as violent. Then, presumably, California could regulate movies just as it could regulate video games?

Justice Sotomayor: 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. So can the legislature now, because it has that study, outlaw Bugs Bunny?
Morazzini: No.

Seduction of the InnocentWell, at least we know Bugs Bunny is safe!  Joking aside, there is a definite point here about why would this stop at video games?

As for the point about how every new thing that comes out that kids show an interest in gets impacted like this is quite true.  Back in 1954 there was a book published called Seduction of the Innocent that famously turned into a  witch hunt of the comic book industry and ended up establishing the Comics Code Authority that dictated what words could be used in titles of books, how much violence could be depicted and so on.

I find the argument that this video game law somehow stifles 1st amendment rights as a bit of a stretch as no one is saying you can’t create the work, you simply can’t sell it to certain demographics.  When you look back at the comic book example, they truly were saying “you can’t create this image”, so I guess this is at least a step in the right direction in that sense.

You can read the full transcript of the hearing over at VentureBeat, and it is a lot more interesting than you would think of a court proceeding.  The ruling may not come down for months as is usual with the court, but it is sure to be interesting.

Oh, and one of the most mind bending things you’ll read in a long time … the mention of Mortal Kombat.

Justice Kagan: Do you think Mortal Kombat is prohibited by this statute?
Morazzini: I believe it is a candidate. But I haven’t played the game and been exposed to it sufficiently to judge for myself.

My guess is they have an ongoing MK tournament back in the chambers.  Kagan always hogs Scorpion so he can scream, “GET OVER HERE!”


Sean P. Aune

Sean P. Aune has been a professional technology blogger since July 2007, but his love of tech dates back to at least 1976 when his parents bought...

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