California Submitting Arguments in Schwarzenegger v. EMA Today

The office of California State Senator Leland Yee (D-San Francisco) let us know that the state’s Attorney General Jerry Brown (D-Oakland) will submit California’s written argument to the Supreme Court, which voices the Golden State’s backing of a law that would make it illegal to rent or sell “excessively” violent videogames to children.

Yee is, of course, the original author of the law (AB 1179), which has made it all the way to the front of the Supreme Court in the form of Schwarzenegger v. EMA.

Citing a SCOTUS decision in United States v. Stevens, in which the Court declined to ban media depicting animal cruelty, Yee indicated that the law may have been constitutional if it was more focused, stating, “Clearly, the justices want to look specifically at our narrowly tailored law that simply limits sales of ultra-violent games to kids without prohibiting speech.”

Yee added:

We need to help empower parents with the ultimate decision over whether or not their children play in a world of violence and murder.  The video game industry should not be allowed to put their profit margins over the rights of parents and the well-being of children.

An excerpt from the petitioners brief on the merits was included, it follows:

California’s law promotes parental authority to restrict unsupervised minors’ ability to consume a narrow category of material in order to protect minors’ physical and psychological welfare, as well as their ethical and moral development.  California has a vital interest in supporting parental supervision over the amount of offensively violent material minors consume.  The Act ensures that parents – who have primary responsibility for the well-being of minors – have an opportunity to involve themselves in deciding what level of video game violence is suitable for a particular minor.”

It is well-recognized that the societal values served by the freedom to consume expressive material do not justify recognizing a constitutional right for minors of the same magnitude as that for adults – and this should be true whether the expressive material is sexually explicit or offensively violent.  Instead, while minors certainly enjoy the protection of the First Amendment, it is a more restricted right than that assured to adults, who may judge for themselves what level of sexually-explicit or violent material they should consume.

The First Amendment has never been understood as guaranteeing minors unfettered access to offensively violent material.  Such material shares the same characteristics as other forms of unprotected speech, especially sexually explicit material.  Throughout history, many states have enacted laws that regulate the sale of both sexual and violent material to minors.  Such restrictions reflect society’s understanding that violent material can be just as harmful to the well-being of minors as sexually explicit material.  This is further reflected in the fact that violence can strip constitutional protection from otherwise protected material.  Sexually explicit material that would be otherwise protected for distribution to adults can be considered obscene given the violent nature of its depiction.  No rational justification exists for treating violent material so vastly different than sexual material under the First Amendment when reviewing restrictions on distribution to minors.

SCOTUS granted California’s petition for a writ of certiorari in April of this year. A decision should emerge from the Supreme Court on the matter later this year.

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  1. Thad says:

    What on Earth are you talking about?  I can’t even tell if you’re referring to articles or comments.

  2. thesillyoldbear says:

    What is with this site lately? Swearing, spelling and grammatic errors, unprovoked attacks on other blogs. How about some editorial standards GamePolitics?

  3. Rodrigo Ybáñez García says:

    "Such restrictions reflect society’s understanding that violent material can be just as harmful to the well-being of minors as sexually explicit material."

    I really hate this part of the text. It´s like comparing "normal sex" with rape. How are they equating violence with sex? 

    We can´t trust on people afraid of a nipple.


    ———————————————————— My DeviantArt Page (aka DeviantCensorship):

  4. Thad says:

    FYI, there’s a typo at the beginning of the second paragraph where you refer to Yee as "Lee".  (Unless he goes by "Lee" as short for "Leland"?  In which case, ignore my correction.)

  5. Andrew Eisen says:

    "Ratings are a shorthand way for someone who doesn’t want to take the time to study a game’s content in depth to trust somebody else’s opinion on it on faith."

    Oh, so "the same could be said of using a ratings system in the first place" was referring to encouraging "parents to take a less active role in their children’s media consumption and pay even less attention to what they’re playing."  My mistake.  I thought you were referring to my last sentence and claiming that like the CA law, the ESRB ratings do exactly the opposite of what they’re trying to accomplish.


    Andrew Eisen

  6. Thad says:


    Ratings are a shorthand way for someone who doesn’t want to take the time to study a game’s content in depth to trust somebody else’s opinion on it on faith.

    Trusting a letter on a box instead of doing your own research is fundamentally an abdication of personal responsibility.

  7. Andrew Eisen says:

    I disagree.  Store policies that prohibit the sale of M rated games to minors?  Sure.  The rating system itself?  No.


    Andrew Eisen

  8. Thad says:

    Hm, I’m not aware of much of Diamond’s work but I like what I’ve seen to date.  I’ll have to acknowledge there’s at least debate on the subject, then; thanks for letting me know.

  9. Avalongod says:

    While I agree that sexual material is inappropriate for minors morally, there in fact is no real evidence to suggest exposure causes developmental harm.  Milton Diamond has done a lot of good work in this area, debunking lots of previous ideas on this topic.

    Again, I’m not saying morally children should view such material, just there’s no good evidence of "harm" per se.

  10. Thad says:

    Well, actually, sexual material IS developmentally inappropriate for children under a certain age, and research shows there IS psychological harm if they’re exposed to it too early.

    Of course, 16 years old is not too early, and yet it’s illegal to sell pornography to anyone under 18.

    Likewise, there’s no evidence anywhere, in any research, that children of any age are psychologically damaged by hearing the word "shit" or seeing a bare breast.

  11. Neeneko says:

     I think it would be amusing to ask one of those ‘strict constitutionalist’ judges how such things are permitted under the 1st ammenment.  The only answer ever seems to be ‘compelling interest’, which last I checked the constitution does not include.

  12. Monte says:

     Well one thing i would have to take into account when looking at myself is the fact that i did not date much at all while I was a minor, and due to my own poor memory, I do not i feel i can say what i we may have done together if i was seeing someone back then… who i am today, is not reflective of what theoretical mistakes i might have made back many years ago… though i can safely say porn did make my hormones run wild when i was a young teen

  13. Andrew Eisen says:

    No, porn does not effectively make you sexually active.  That’s not its goal and that’s not what it does.  I also have seen no evidence that underage porn watching causes psychological or physical harm.

    Look at it this way.  At what age did you first see porn?  How did you turn out?


    Andrew Eisen

  14. Monte says:

     "There’s no reason to ban sexually explicit material to minors either."

    I don’t know, atleast as far as porn is concerned i do think there’s reason… I mean, underaged sex can be a real problem, many are not really ready for it and don’t protect themselves. Porn is effectively meant to stir up your hormones and get you sexual active, that’s it’s purpose and goal… and frankly, i would not trust minors to limit themselves to masturbation. So i do see fit to atleast bar minors from porn.

    However this is also why it is wrong to compare violent material with the likes of porn. Violent media is not meant to turn people violent, millions are able to experience such material without developing feelings for violence. The accusations that violent media harms the physical, psychological, and moral health of minors is so far unfounded; seriously lacking evidence and flawed studies. As such there seems no adequate universal harm coming from violent media and therefore there is no grounds to restrict it. 

  15. Bigman-K says:

    I agree, Obsenity laws whether for adults or minors are a load of bullshit and have no basis in the constitution as it’s just a way of barring speech on the basis or offensiveness and some vague "lacking merit requirment" when what does or doesn’t lack merit is subjective depending on the individual.

    It’s also the only form of Speech that is unprotected by the First Amendment NOT on the basis of harm. This makes it different from things like yelling "fire" in a crowed theater, perjury or real child pornography, snuff or rape films.

     "No law means no law" – Supreme Court Justice Hugo Black on the First Amendment

  16. Andrew Eisen says:

    Funny that for all the talk about empowering parents to decide what is and is not appropriate for their children to consume, this law would do exactly the opposite.

    "No rational justification exists for treating violent material so vastly different than sexual material under the First Amendment when reviewing restrictions on distribution to minors."

    You’re right.  There’s no reason to ban sexually explicit material to minors either.


    Andrew Eisen

  17. Adamas Draconis says:

    Perhaps they are people with an agenda and have given false infomation before?

    Hunting the shadows of the troubled dreams.

  18. gellymatos says:

    First, who are "this people"? Second, how are you to know they love to lie or that they are intentionally giving false information at all?


    "The difference between genius and stupidity is that genius has its limits." -Albert Einstein

  19. Rodrigo Ybáñez García says:

    I don´t know why, but I also think that´s the only purpose of this law, by creating a domino effect against M-Rated games in general. Sounds hastly, but not impossible. This people just love to lie.




    ———————————————————— My DeviantArt Page (aka DeviantCensorship):

  20. Avalongod says:

    No I wouldn’t say that our society as a whole has such an understanding.  Obviously there is much debate on this topic.  I think the argument here has less to do with a true reflection of US society’s views on the topic, which are quite diverse, and more to do with the definition of obscenity, which as part of it, (I forget the wording) refers to material which most of society finds objectionable.  So I think that’s the gist of that argument, inaccurate as it is.

  21. Thad says:

    Well, I think most of us here would agree that you shouldn’t let a 6-year-old play GTA or watch a porno.

    The issue here, however, is that Yee wants to set a blanket age for what IS appropriate for playing violent games (as there already is with accessing pornography), rather than allowing parents to make that decision according to each individual child’s maturity.

    6 years old?  No, I think we can all agree that’s a bad idea.  But 14?  Gray area.

  22. Cheater87 says:

    That is exactly what he is saying. He wants violent games to be treated the same as porn.

  23. vellocet says:

    I don’t really know anything about US law… but what does Lee mean when he says "Such restrictions reflect society’s understanding that violent material can be just as harmful to the well-being of minors as sexually explicit material."

    I don’t necessarily believe that sexually explicit material is harmful to minors, but what is "society’s understanding that violent material can be just as harmful"?  Does your society have that understanding?  Or is he just pulling that out of his ass?

    Isn’t it really dangerous to base your entire argument on a shakey comparison?  Cause it seems like his entire argument is that violent games are like pornography. 

  24. Thad says:

    Not a bad comparison, really — games ARE closer to premium TV than broacast TV, because you can’t just flip across them by accident.  (In-store displays notwithstanding, I suppose.)

    Not to say that there hasn’t been plenty of pressure on even cable TV over the years.

  25. Bigman-K says:

    Leland Yee is far from an idiot, he’s actually pretty intelligent. But he’s is a hypocrite and two-faced lier who will twist anything to suit his ideals and beliefs. He’s also quite the nanny-statist. 

     "No law means no law" – Supreme Court Justice Hugo Black on the First Amendment

  26. HarmlessBunny says:

    First of all, I don’t consider Leeland Yee an idiot. Though I am always curious and offended about his questionable tactics, and even using misleading information here.

    Since when is this effort empowering parents? This is state scantioned censorship, plain and simple. What is wrong with the ESRB, and stores VOLUNTARILY enforcing it as they are right now? Violence in CERTAIN video games are similar to what you would see in movies. Heck I think HBO’s Pacific is far more graphic than most games. Yet we do not see a movement to remove it from TV.

    Then again people like him tried to blame books, comic books, rock and roll, and movies long before video games were a target…. and it shall continue. I certainly hope, as a Canadian, my own government will never go down this slippery slope.

  27. BearDogg-X says:

    The industry has SCOTUS precedent in their favor and it seems that no one really knew it(This is the first I’ve heard of Mesquite v. Aladdin’s Castle).

    Good find.

    Edit: I read the decision(written by the recently retired Stevens).

    I think it’s still good precedent in favor of the industry and against California even though SCOTUS never answered the question of the age restrictions.

    They let the Fifth Circuit ruling that the age restrictions section of the ordinance was a violation of the Fourteenth Amendment and First Amendment stand while remanding that part back to the 5th to clarify whether the 5th used the Texas or the US Constitution to come to their decision(Justices White and Powell filed separate opinions that concerred in the judgement, but dissenting in that SCOTUS should have answered that question), but reversed the 5th on their ruling of the section of investigation of "connection with criminal elements" being unconstitutionally vague.

    Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra. Hell will stay frozen over for quite a while since the Saints won the Super Bowl.

    Proud supporter of the New Orleans Saints, LSU, 1st Amendment; Real American; Hound of Justice; Even through the darkest days, this fire burns always

    Saints(3-4), LSU(7-0)

  28. PHX Corp says:

    There’s one thing Missing here, This is not the first time Video games were Looked at by SCOTUS

    But, there is something else being rehashed, as well, which is the rationale behind the U.S. Supreme Court’s ruling on City of Mesquite v. Aladdin’s Castle, Inc. The federal circuit court ruling in Video Software Dealers Association; Entertainment Software Association v. Schwarzenegger et. al. and the U.S. Supreme Court ruling in City of Mesquite v. Aladdin’s Castle taken as a set, have significant implications for the definition of free speech as it applies to youth and media. In neither case does the court concede that video games are an incitement that may precipitate real-world violence or that violent games qualify as obscene in some way. That both the court and the industry would rather rely on an industry-generated ratings system is clear.

    However, the decisions have a further implication, one which doubtless does more to increase than to decrease the discomfort of would-be guardians of youth. In both cases, the court effectively argues that the right to play games—whether on publicly accessible coin-operated machines or on home console systems or computers—is an issue of free speech, and therefore protected, even for the young. Also in both cases, the attempted restriction is made at the point of purchase, which is to say that the right being protected by the courts is not only the right to view certain materials, but to consume them both as media and as commercial products. In short, consumption itself is protected as a fundamental civil right as it becomes bound to the right to free speech.


    Expect a Similar uphill battle for California over the same issue


    Watching JT on GP is just like watching an episode of Jerry springer only as funny as the fights

  29. Bigman-K says:

    I think what he’s trying to say is that if the law is found constitutional then "M" rated games will be treated the same as hardcore pornography and therefore major retailers will choose not to carry it and many game publishers and developlers will therefore choose not to make games with extremely violent content in them. In the end adults are screwed over to.

     "No law means no law" – Supreme Court Justice Hugo Black on the First Amendment

  30. Cheater87 says:

    Of course this would prohibit speech. Adult games are not allowed to be sold in just about all stores or played on consoles due to company policy. This will make all M games adult rated and therefore banned from everyone since no store would sell them and no console will allow them.

  31. E. Zachary Knight says:

    Quoting Reason #2 of my 4 reasons to support the ECA’s Petition against this law:

    Reason #2 is that it is the parents’ responsibility to regulate their children’s gaming, not the government or retailers. They have been given all the tools they need to ensure their kids only play games they approve.

    All game consoles have Parental controls so that parents can limit the types of games that their children play by rating. So if the parent doesn’t want their kid playing M rated games, they can set the controls to only allow T rated and under games.

    Then there are the ESRB ratings which give the parents the ability to see what content the game contains and decide if their children should be allowed to play it.

    Finally all game consoles have what we like to call the power button. If a parent finds their kid play a game they are not supposed to be playing they can turn off the console.

    All these tools are available for parents to use when choosing games for their kids. If you get on a session of Gears of War or Modern Warfare 2 and hear 10 year olds playing, that is because the parents chose to let their kid play those games. They made that decision through any number of ways.

    They either bought the game for the kid, didn’t set the parental controls, didn’t review the game the kid bought or do not monitor their child’s game playing.

    How will this law compensate for that? If the kids are getting their parents to buy the game and the parents don’t care what the game is, what will this law accomplish aside from being a road block for game developers and retailers?

    E. Zachary Knight
    Oklahoma City Chapter of the ECA

    E. Zachary Knight
    Divine Knight Gaming
    Oklahoma Game Development
    Rusty Outlook
    Random Tower
    My Patreon

  32. Andrew Eisen says:

    You missed the reply button.

    In any case, what I mean is that by doing the parents’ job for them, the law encourages parents to take a less active role in their children’s media consumption and pay even less attention to what they’re playing.  That is exactly opposite of what California says it’s trying to accomplish.


    Andrew Eisen

  33. Arell says:

    talk about empowering parents to decide what is and is not appropriate for their children to consume, this law does exactly the opposite.

    While I agree that the law does not empower parents, I don’t agree that it does the opposite.  The law doesn’t say a parent can’t buy the violent game for their children.  It’s still the parent’s choice, just not an option to give the money to the kid and send them off to buy it themselves (which in most stores, wasn’t an option already).

    At least on the issue of "parental empowerment," I’m going to say the law is… neutral.  Still a bad law, though.

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