Lead Counsel In SCOTUS Violent Games Case Lays Out Arguments

October 7, 2010 -

The lead counsel for the video game industry in the upcoming Supreme Court fight against California’s proposed violent video game restrictions outlined the problems with the state’s legal arguments in a recent public appearance.

Speaking at an intellectual property forum at Chicago-Kent University last week, Jenner and Block LLP Partner Paul M. Smith said that no matter how a state defines "extreme" violence in such laws, they will run into constitutional problems with vagueness.

"I've litigated nine cases in a row where states have tried to define the category nine different ways – and they always lose when they make this case because violence is considered a perfectly appropriate and normal part of what we give our kids to see starting from a very young age," he said.

"Star Wars, Lord of the Rings, Harry Potter, there's lots and lots of violence in all of those things," he continued. "You have to figure out a way to use the English language to describe some subset of violence which is different from that. Even though people are being murdered and beheaded all the time in Lord of the Rings, you don’t want to make it a crime to sell a DVD of Lord of the Rings to a 16-year-old child."

To let California’s law stand, the high court would pretty much have to carve out a new exception to the First Amendment for minors’ exposure to violent content, as it did for sexual content in 1968’s Ginsberg v. New York decision. But Smith pointed out that the current court has been loathe to create new First Amendment exceptions in the recent past.

"This is something they pretty much rejected a week before they took this case, in the Stevens case, which was the animal cruelty videos case, where the court ruled against creating new exceptions," he said. "I guess what the real question in this case is, regarding kids, do we carve out separate exceptions for them and not for anybody else?"

In the absence of some new, court-defined exception to the First Amendment, Smith said the state would have real trouble meeting the strict scrutiny generally required for any restriction on free speech.

"They barely make an effort to satisfy strict scrutiny," he said. "...They’d have to show that there’s enormous harm prevented by this law outside the existing rating system, that there's no less restrictive way to do it, that there's no overbroad effects, and that’s an extremely difficult test to meet," Smith said.

As far as the "enormous harm," Smith said the state has utterly failed to show compelling evidence that violent games cause any significant problems for minors’ development.

"There is a group of psychologists out there who have made their careers trying to prove that there’s something wrong with video games, but their studies ... find these tiny little effects of maybe three percent more likely that you would be an aggressive school kid with violent video games," he said.

"The other things is, their social scientists don't show a bit of evidence that violent video games are any worse than television, or movies, or anything else that you can experience," he continued. "The notion is that playing the games makes it more harmful or engaged in a different way, but even taking the evidence they’ve marshaled, they just don't make that claim."

And that lack of a distinction means that any decision against violent games could easily spread to other media, Smith warned. "It's going to be extended to movies, to the internet, to television, all of which are out there with no limit at all on what they can contain. So that is something that would be an extremely bold, revolutionary move by the court," he said.

With federal and state courts unanimously rejecting similar violent game laws in eight other states and two cities, some might be worried that the Supreme Court could only be interested in hearing this case so it can overturn this uniform legal opinion. But Smith said the high court’s decision doesn’t necessarily bode well or ill for the industry.

"I think there are examples where the court take cases where there’s no conflict about 30 percent of the time," Smith said. "One possible explanation is that they’ve seen nine cases in a row in four circuits and they just disagree with all of that. The second explanation is, as the cases have come up through the circuit court, they realized there’s an enormous amount of conflict between federal judges and state policy makers and that they want to put this issue to rest."

While the industry included two to three hours of gameplay footage showing the artistic expression of some violent games with their briefs, Smith laughingly wondered in the Supreme Court justices might need some further education on how video games actually work.

"This happened back in the Reno case in the mid-’90s that I was involved in," he said. "This was a first amendment case in 1997, and it was essentially true that most Supreme Court justices hadn’t gone on the Internet to see what a web site looked like. So we had to get a monitor hooked up to a computer in the library set up and connected to the Internet to explain to the justices what the Internet was. So I wouldn’t at all be surprised if there was an Xbox in there and we had to show the justices of the Supreme Court an example of a game."

- Kyle Orland

Kyle Orland has written about games professionally for over a decade. For more information about Kyle's work, visit kyleorland.com.


Comments

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

And the game publishers and the console makers and the ESRB don't have their own agenda with very little to do with protecting anyone other than themselves or upholding any values other than the ones they hold dear for selfish reasons?  Don't kid yourself.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Don't get me wrong, I have no illusions about any agendas on the part of certain people within the industry. But I don't feel that represents the core of our need to defend ourselves, it's a lot more than just profit to be lost here, and even if that was it, it would still apply to more than just the games industry if even one of these bullshit laws were to stand the court's scrutiny.

And as for AO-rated games, yes, the Big 3 definitely show much of their true colors by not supporting them at all. They disappoint me greatly in that action, and I will have some choice words for them until it ceases. But to me that's another battle, and more of an internal one than that which is going on right now between the industry, us gamers, and the politicians willing to set dangerous precedents to gain supporters. I'm not so sure we can win the former either, because it stretches beyond just the games industry. Just look at the fear film studios have of releasing NC-17 movies, it's the same basic deal.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

At least movie makers have the freedom to release movies unrated and uncensored and those CAN be sold in stores. Games don't have that freedom.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

This is unfortunately true.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

I look forward to the day it no longer is, even if I'd be restricted to ordering online.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

But what could we do to bring that day closer? I'm at a loss, personally.

If they were more commercially successful despite less availability, that'd probably help, but, how do you make that happen?

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Console makers, stores and rating boards care more about looking good then free speech. Which is why AO games are banned from sale in stores.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Sony, Microsoft and Nintendo all have policies that prevent AO games from getting licenses on their systems as well.

------- Morality has always been in decline. As you get older, you notice it. When you were younger, you enjoyed it.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

"Console makers, stores and rating boards care more about turning a profit than they do about anything else."

There. Fixed.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Man, I literally lost a ton of sleep during the whole Bully thing.  I don't expect to be very calm or relaxed during this whole SCOTUS affair.  When can we reasonably expect them to come to a decision on this?  They don't decide right away after hearing arguements, correct?

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

You literally lost a ton of sleep? 

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Given the precedent it would have set had Bully been blocked from release, and the fact JT was lying worse than ever, I got so upset that I spent that week unable to sleep much due to worry.

So yes.  Not that is is a very good way to deal with a legal process one has no direct control over :)

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

I don't blame you since with a precedent set JT would not have stopped there.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Yeah, and we'd still be fighting him today instead of enjoying his more-or-less silence since being disbarred.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

To be honest, I really wouldn't worry about him, he's a non-entity in the larger picture nowadays, even if he tries the old trick of repeating a lie until it nearly becomes a truth, nobody outside of himself really thinks he has any impact.

That's why he gets so angry when people point out that he's achieved nothing, not because he thinks they are wrong, but because nothing terrifies him more than the idea that he is impotent and irrelevant, and he has a sneaking suspicion that is the case, otherwise he wouldn't really care about it.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

I'm not worried about him at all right now either, but I will be if the state of CA gets their way this time.

That's why he gets so angry when people point out that he's achieved nothing, not because he thinks they are wrong, but because nothing terrifies him more than the idea that he is impotent and irrelevant, and he has a sneaking suspicion that is the case, otherwise he wouldn't really care about it.

I remember one time someone on here hurt him really badly with their comments, and JT went on such a tangent as has been seldom some seen from him, especially since. You could always tell when he'd been forced to look at himself in the mirror and catch just a glimmer of truth, because every time he did his anger was oh so painfully obvious in his (unwelcome) postings.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Yeah, I was having a bit of fun with your use of the word "literally" -- because there is no such thing as a literal ton of sleep, only a figurative one.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

No, that'd be highly unusual. There's no required time within which the Court must issue its decision, but it'll certainly do so before they recess in June 2011.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

before they recess in June 2011

Oh god I hope it doesn't take that fucking long.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

Like JDKJ said, SCOTUS could wait until then to release the decision, but I wouldn't expect it until at least sometime in March.

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.

Geaux Saints, Geaux Tigers, Geaux Pelicans. Solidarity for the Saints = No retreat, no surrender. 2013 = Saints' revenge on the NFL. Even through the darkest days, this fire burns always.

Re: Lead Counsel In SCOTUS Violent Games Case Lays Out ...

I doubt it will but it could. It's all up to the Court.

 
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Andrew EisenAnd exacerbating everything is the fact that all the cries of ethics violations have been obnoxious and easily proven false.09/18/2014 - 8:59pm
Andrew EisenProblem is, I would imagine, the sheer number of people who are using journalistic integrity as a cover for their harassing actions or only bringing it up on the false pretense of journalistic integrity.09/18/2014 - 8:47pm
Andrew EisenHaving said that, I can certainly see how one would be frustrated if they truly just wanted to talk about journalistic integrity and someone said they were one of the people harassing Sarkeesian, Quinn and others (though I've seen no examples of that).09/18/2014 - 8:44pm
KronoThat's been the common refrain, that talk of journalism ethics is just an excuse to harass people.09/18/2014 - 8:44pm
KronoLines like "like a partial compromise with the howling trolls who’ve latched onto ‘ethics’ as the latest flag in their onslaught against evolution and inclusion." are taring everyone questioning the ethics as a harasser.09/18/2014 - 8:43pm
Andrew EisenKrono - Except, none of the articles were talking about gamers complaining about journalist ethics, let alone called them white male misogynists. They were talking about the gamers who were harassing others.09/18/2014 - 8:36pm
Kronomakes plenty of sense. It's rather hard to dismiss someone as a white guy running a sock puppet when they've posted proof they're a woman, or black, or another minority.09/18/2014 - 8:32pm
Kronothat any critics of journalists were white guys that hated women, and could be dismissed as such. It seems to have helped some. It's kind of difficult to maintain the white guy narrative in the face of a bunch of women and non-white guys. So the tag09/18/2014 - 8:32pm
Kronothat, someone vented on a #gamergate 4chan thread about being dismissed like that. The suggestion they got in return was to organize their own hashtag in response, with #NotYourShield being suggested. Thus the tag came into use to combat the undercurrent09/18/2014 - 8:32pm
Kronomuch more general problem. And while several of the articles were fairly tame, they spured a bunch of people to dismiss any critics of the journalism involved as misogynistic men. Usually with insults aimed at the geek stereotype. After about a week of09/18/2014 - 8:32pm
Andrew EisenSleaker - Not sure what that has to do with anything but yeah, the gender percentages differ depending on how the study defines what a gamer is.09/18/2014 - 8:32pm
KronoThe rhetoric pushed by the spearheading articles that the "gamers" complaining about journalist ethics were just angry white male misogynists, insulted a lot of people that were previously fairly neutral. It made it go from a Kotaku problem, to a09/18/2014 - 8:31pm
Krono@Andrew I'm not surprised overlap exists. I expect much of it is a rush to jump on the bandwagon, either by reporting on the original articles, or rushing out their own. The point is that was a major flashpoint, much bigger than the reddit mass deletion.09/18/2014 - 8:31pm
Sleaker@AE - well the gamer trend was described with stats on Factual Femenist. Only 1 in 7 males plays games 20+ hrs going into college vs 1 in 40 females. So gaming is definitely still male dominated despite fake stats trying to say otherwise.09/18/2014 - 8:30pm
Craig R.Do conspiracies ever make sense? The fact that people are now having to defend themselves against nutjob websites like Breitbart.com shows how far down into the rabbit hole we've all been forcibly dragged.09/18/2014 - 7:05pm
Michael ChandraBut when the mountain obviously exists...09/18/2014 - 5:49pm
Michael ChandraMind you, if someone makes a mountain out of a molehill with a secret agenda as motive, it'd be fine.09/18/2014 - 5:48pm
Andrew EisenOkay, so I guess I'm not making sense of #notyourshield because it doesn't make any sense.09/18/2014 - 5:28pm
Andrew EisenI'd really only count three as being "death of gamer" articles and only one as arguably going a bit far with "gamers are young white dudes" stuff.09/18/2014 - 5:17pm
Andrew EisenMost are really just a look at the crap that happened the previous day when Sarkeesian's new video came out and almost all are exceedingly clear that they're talking about the specific gamers who are being obnoxious.09/18/2014 - 5:17pm
 

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