California Governor Arnold Schwarzenegger signed California Assembly Bill 1179 into law on October 7, 2005, setting off a chain of events that eventually led to today’s oral arguments in front of the Supreme Court, which will ultimately decide whether the First Amendment can stop a state from prohibiting the sale of violent videogames to minors.
Two issues are at stake for the Court to decide: Do violent games for minors fall within a category of speech unprotected by the First Amendment and does California’s ban on the sale or rental of violent videogames to minors satisfy the strict scrutiny test applicable to content-based restrictions on speech?
Arguing for the California side in Schwarzenegger vs. EMA was Supervising Deputy Attorney General Zackery Morazzini, while Jenner & Block lawyer Paul Smith took the lead for the gaming industry.
The entire time allotted for oral arguments—and questions—is one hour.
Kicking off the 60 minute extravaganza was Morazzini, who only got a little bit into his preamble, before being accosted by Justices. Justice Scalia threw out a reference to Grimms Fairy Tales before Justice Ginsburg asked about comic books and films. Morazzini responded that games are specially harmful.
When asked about specific studies that indicated violent games have a negative impact on minors, Morazzini referenced research from Iowa State University's Doug Gentile.
Justice Sotomayor (we believe, our view was terribly obstructed) brought up cartoons and their lack of social value, a topic to which Morazzini answered that cartoons do not depart from social norms.
Justice Sotomayor then mentioned rap music and wondered if ultra-violent lyrics could also be considered obscene.
Justice Alito asked exactly what constituted a minor, is it a 17 year old? A 10 year old? He received the clarification from Morazzini that the statute considers minors under the age of 18 as one entire group.
Justice Scalia asked how manufacturers would know what games are covered under the law, saying that if he was such a producer, he “wouldn’t know what to do.” Morazzini answered, “I think they would know what to do.
In response to comments from Justices that the statute was vague, Morazzini said that the state had to start somewhere, and that it could eventually build a consensus, to which Justice Scalia remarked, what would be next to be targeted after violence.. drinking? Smoking?
Justice Scalia wondered if the statute might eventually lead to a “California Office of Censorship” overseeing what could and could not be sold to kids, to which Morazzini responded that “California is not acting as a censor.”
By the time it came around to Smith’s turn to face the Court, Morazzini, who answered at least one question from a Justice with “I don’t know,” may have been happy to take a seat.
Smith argued that California had not “marshaled a shred of evidence” in its case, before Justice Breyer jumped in to state that dueling game researchers Chris Ferguson and Craig Anderson are in disagreement, “but not that much,” in that both suggest that games do hurt children.
Smith, answering questions regarding if parents need additional help in regulating what types of content their kids consume, argued that any harm was supposed to manifest itself over years, which would give parents plenty of time to mitigate their ward’s exposure.
Justice Kagan then asked Smith if any research results would be enough to justify the California law. Smith said that perhaps a study which indicated that 75 percent of viewers of a certain media turned into murderers would be enough.
Responding to Justice Alito’s comment that the First Amendment, when written, could not have taken into consideration modern media such as videogames, Smith replied that vast overreactions to new media came about all the time, mentioning comic books, television content and rock lyrics as previously targeted mediums.
When asked if all games were considered speech, Smith replied that games feature narratives and plots, prompting Kagan to wonder if games could be broken down into narrative and non-narrative types, which also prompted a discussion on which side Pong would fall under.
Smith contended that there is no problem that California law is needed to solve.
A discussion on whether games should be treated like cigarettes and kept literally out of reach of kids prompted an exchange between Smith and the Court that resulted in Smith stating that “Cigarettes are not speech.” That statement prompted a neighboring (and more SCOTUS seasoned) journalist to whisper that Smith had come close to crossing the line in talking to the bench that way, while others might say that Smith was just strongly defending his sides position.
Morazzini returned to face the Court, and referenced an earlier conversation about whether kids could afford to buy new videogames or not by noting that there’s plenty of inexpensive rental options for game consumers as well.
Morazzini argued that the California law was expressly tailored towards games with “no artistic value,” to which Scalia replied, “Will that be the test?” Smith attempted to reply with an answer that it would be one of the tests, before Scalia asked, “Artistic for who?”
Justice Kagan then wondered if the Mortal Kombat series would be a target of the California law, to which Morazzini replied, “It’s a candidate… the videogame industry should look at it.” He added, “Postal II would be…”
Justice Sotomayor then wondered what if the on-screen videogame violence was directed at simulated people. Sotomayor continued along that line of questioning, wondering if an in-game character had its head chopped off, but then sprang back to life second later, would that too fall under the statute.
Entertainment Consumers Association (ECA) Vice president AD GENERAL Counsel Jennifer Mercurio was also in attendance at the oral arguments. Her take on the proceedings: "The oral arguments were an awesome display of intellectual prowess and debate.
She continued, "The Justices obviously have a clear understanding of video games, as well as the First Amendment principles at play in this case. We hope that their spirited dialogue was an indication that they agree that video games are protected speech like other entertainment media."
After the oral arguments, Leland Yee gave a quick press conference, in which he once again stated that he had no interest at all in applying this law to other media types. Yee told us that he thought the Justices were equally hard on both sides in the oral arguments.
We also asked Yee how many controllers his office received following the ESA’s First Amendment initiative to deluge him with videogame controllers. Yee stated that all the controllers were returned to their original senders due to the possibility that they could be perceived as gifts.
Overall, it was (obviously) a thrilling experience to be able to witness the arguments in person. Even with the obstructed view, we had a clear line of sight to Morazzini and Smith, but could only really view Justice Kagan, and even then it required a severe bend to one side. Not knowing exactly what to expect going in, it was surprising in the way the Justices constantly grilled each side’s representative throughout the hour-long process. Morazzini came off as less-prepared and seasoned than his counterpart Smith.
According to someone who had witnessed previous oral arguments, it was an extremely talkative session by Supreme Court standards, except for Justice Thomas, who uttered nary a word during the proceedings. Justice Scalia should also consider the possibility of a post-SCOTUS career as an entertainer, as he prompted a good handful of laughs throughout the courtroom with a variety of his comments and witticisms.
Now we wait…