A Legal Analysis of Brown v. EMA

July 8, 2011 -

            No doubt everyone has heard the good news out of the Supreme Court last week. Video games are saved from government censorship based on violent content, California’s law prohibiting the sale of violent video games to minors is invalid, good times had by all. This article is for those curious as to the how and why of this outcome, and will take readers through the Court’s principal opinion written by Justice Scalia (which is the governing law and will be used as precedent everywhere in the US from now on) as well as touch on a few points from other opinions penned by other Justices.

 

 

            First off, in determining whether a law restricting expression is constitutional, the Court must examine whether or not the subject matter to be restricted is in fact “speech” for First Amendment purposes. If so, the Court will see whether the law in question is regulating a pre-existing category of unprotected speech like incitement or obscenity. Upon finding that the law is restricting speech that is not unprotected, the Court will go on to examine whether the regulation is based on the content or the message of the speech, or if it is simply regulating the time, place, and manner in which the speech can be performed. If the law turns out to be based on the former, then the government has quite the heavy burden of proving that it passes a test called Strict Scrutiny—which is perhaps the most difficult constitutional test in American jurisprudence (and for good reason). I will go into more detail on Strict Scrutiny below.

 

            The Supreme Court has finally acknowledged the status of video games as having as much expressive value as film, television and books and as deserving of the same protection under the Constitution. Acknowledging that many games contain political speech and social messages as well as being entertainment, Scalia writes: “…it is difficult to distinguish politics from entertainment, and dangerous to try.”

 

            After a history lesson on the failures of historical crusades against violent books, films, and comics, the Court dismisses California’s argument that the interactive nature of games makes them distinguishable from other media. Choose-your-own-adventure-type books are also interactive in that the young readers, by choosing which page to turn to, contribute to the outcome of the story and sometimes grisly fate of the characters. The Court goes on to say that indeed any good literature is interactive—the reader is drawn in, identifies with the characters, and takes on the characters’ struggles as their own.

 

 

            Though the freedom of speech found in the First Amendment is far-reaching and wonderful, it is not absolute. Over the years, the Supreme Court has carved out a handful of very specific categories of speech that are not protected by the Constitution. This includes the incitement of imminent unlawful activity, fighting words (face-to-face insults causing a breach of the peace), defamation, and sexual obscenity (to name a few). The law at issue in this case seeks to create a new category of speech (a task that has historically been reserved only for the Supreme Court itself), namely the depiction of violence when distributed to minors.

 

            Last year, in the case of United States v. Stevens, the Supreme Court held that new categories of subject matter cannot be added to ranks of unprotected speech by a legislature who has deemed them too harmful to be tolerated. In that case, Congress had passed a law purporting to strip First Amendment protection from depictions of animal cruelty. The Supreme Court struck down the law, saying that the idea that a legislature could do so by “weighing the value of a particular category [of speech] against its social costs and then punishing it if it fails the test” is “startling and dangerous.” At GamesLaw, we predicted that the outcome of Stevens would have an effect on the Brown case (then called EMA v. Schwarzenegger). As predicted, the Court declared that Stevens controls this case. Therefore, California’s attempt to add violence disseminated to minors to the list of unprotected categories of speech was invalid.

 

            The Supreme Court itself would not acknowledge violence as a new category of unprotected speech because there was a lack of historical basis for doing so. All throughout our history we have given children violent books to read. Scalia specifically cites examples from Grimm’s Fairy Tales including the ending to Snow White describing the villain being forced to dance in red-hot shoes until her death, and Cinderella, wherein the step-sisters have their eyes pecked out by birds after (my favorite) cutting off parts of their feet to try and fit into the glass slipper. Because of this, it can hardly be argued that the dissemination of violent material to children was an evil that the country has always been wary of and wanted to prevent. Acknowledging Justice Alito’s findings that many games’ depictions of violence were “disgusting”, Scalia points out that “disgust is not a valid basis for restricting expression.”

 

            The monumental task of passing the Strict Scrutiny test can only be accomplished if a content-based regulation of protected speech is narrowly tailored to serve a compelling government interest. Examples of such interests are national security and public safety. The language of the test varies a bit, and interestingly in this opinion Scalia’s formula puts the need for a compelling state interest ahead of the need for narrow tailoring. This foreshadows his discussion and findings that California’s law did not serve a compelling state interest and so the lack of narrow tailoring using the least restrictive means of accomplishing any of its goals deserved minimal attention.

 

            California put forth a couple of different interests which it was claiming to further, and each one was refuted by the Court. The first claim is that the state has an interest in protecting children from the harm that results from their exposure to violent games. While protecting children from actual harm is certainly a compelling interest, studies showing that violent games have negative effects on children do not distinguish them from the effects that E-rated games and cartoons have. Even the state itself admits that it could not show a direct causal link between violent games and harm to minors. The Court goes on to say that because California has observed the supposed ill effects from non-violent games and cartoons but has not tried to restrict children’s access to them, their regulation of the game industry looks more like an effort to disfavor a particular speaker or viewpoint. In short, they have singled out the game industry and given no good reason why.

 

            California’s other interest is to help parents who want to keep violent games out of their kids’ hands to do so—in effect, the state would keep an extra eye on the children whose parents could not monitor all of their purchases. However, the voluntary ESRB ratings as well as the cooperation of retailers in enforcing the age restrictions accompanying the ratings accomplish this goal for the most part—a result that has been confirmed by the Federal Trade Commission. Even though some M-rated games slip through the cracks into minors’ hands, “[f]illing the remaining modest gap in concerned-parents’ control can hardly be a compelling state interest.”

 

            Even assuming hypothetically that the assistance of parents in sheltering their children from violent video games is compelling, California’s law is not narrowly tailored to do so. In order to be narrowly tailored, a law must do just enough to accomplish its stated goal and no more. This law is not narrowly tailored because it prevents children whose parents are permissive or indifferent to them buying and playing violent games from doing so—it deprives them of the opportunity to receive speech even if their parents have deemed it age-appropriate. Because of the law’s over-inclusiveness and favoring only what it thinks parents ought to want, the law is not narrowly tailored to the state’s objective of assisting parents and is again invalid.

 

            Justice Alito does not agree with the majority’s reasoning as articulated in Scalia’s opinion and so he wrote his own, the dicta (reasoning and conclusions) of which can also be persuasive to courts in the future. Although long, the opinion can be summed up quite simply as this: The contested law does not define “violent video games” clearly enough to give the public notice of the specific conduct and depictions that are allowed and disallowed, and is therefore void for vagueness.

 

            This is the case we’ve all been waiting for. I personally dreamed about arguing a case like this in my teenage years as I watched the anti-FPS and -GTA crusades unfold, and the prospect of protecting the game industry from censorship is what made me decide that I wanted to be an attorney. Now that the battle is fought and won, I’m ecstatic to see games finally being recognized by our highest Court as a legitimate art form deserving of every bit as much of the Constitution’s respect as time-honored literature (albeit I am a little sad that I didn’t get to participate in the suit myself). Because of my special interest in the intersection of games and the First Amendment, I have spent the past two years writing about this case for GamesLaw and am truly honored that I was able to help people understand it better and take part in robust discussions. I’d like to give a huge hats-off to all of the attorneys who represented the industry as well as the judges and Justices who have upheld a centuries-old founding principle in the face of rapidly advancing technology.

 

            Good game.

 

GP: Thanks to Elizabeth Surette, a Massachussetts attorney, for writing this article, and Dan Rosenthal, a Maryland attorney, for editing it. Surette and Rosenthal both focus their practices on the games industry.

Comments

Re: A Legal Analysis of Brown v. EMA

IMO, the supreme court should throw out all obscenity and indecency laws for all media, as they also have no basis in the constitution. As Scalia said "Disgust is not a valid basis for restricting expression, and that is exactly what obscenity and indecency laws are based upon.

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

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

Re: A Legal Analysis of Brown v. EMA

Maybe then those "Think of the children" types will think of their own chidlren for a change.

Re: A Legal Analysis of Brown v. EMA

Preposterous. Everyone knows that the "Think of the children" types don't have children of their own.

 

 

"And though we may pledge fanboy allegiances to different flags, deep down inside we all serve one master, one king. And his name... is GAMING! FOREVER MAY HE REIGN!"

http://www.examiner.com/video-games-in-atlanta/mike-chrysler

Re: A Legal Analysis of Brown v. EMA

That or they have nannies to do the thinking for them. I mean they must be well off, otherwise how else would they have time to worry about this?

Re: A Legal Analysis of Brown v. EMA

Game, set, match?

Hardly. There is still ample room for a law to restrict the sale of certain games. Don't forget that there are forms of media, the sale of which to minors is illegal.

The law must merely be specially writen to be as narrow as possible.

 

--Malo periculosam libertatem quam quietum servitium

Malo periculosam libertatem quam quietum servitium

Re: A Legal Analysis of Brown v. EMA

I think you mistook my meaning. Anyone following this case knows that it went back and forth like a tennis match. I wasn't at all implying that this is the end-all, be-all of video game legislation. I know all too well that this is more than likely just the beginning.

Secondly, so Andrew doesn't have to say it... Please use the reply button when responding to a specific post.

 

 

"And though we may pledge fanboy allegiances to different flags, deep down inside we all serve one master, one king. And his name... is GAMING! FOREVER MAY HE REIGN!"

http://www.examiner.com/video-games-in-atlanta/mike-chrysler

Re: A Legal Analysis of Brown v. EMA

He probably did.

If you're not logged in and you click the Reply button, it sends you to a login prompt, and after you log in it dumps you to a comment box for a new post instead of a reply.

It's not user error, it's designer error.

Re: A Legal Analysis of Brown v. EMA

Game.

Set.

Match.

It's great to be an American.

 

 

"And though we may pledge fanboy allegiances to different flags, deep down inside we all serve one master, one king. And his name... is GAMING! FOREVER MAY HE REIGN!"

http://www.examiner.com/video-games-in-atlanta/mike-chrysler

 
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Goth_SkunkeZeek: No, I do not agree they are union members.07/07/2015 - 7:48pm
E. Zachary KnightTeachers unions are just as bad as police unions, except of course you are far less likely to be killed by a teacher on duty than you are a cop. But they also protect bad teachers from being fired.07/07/2015 - 6:29pm
E. Zachary KnightGoth, so you agree they are still union members. Thankfully we have a first ammendment that protects people from being forced to join groups they don't support (in most cases any way.)07/07/2015 - 6:27pm
E. Zachary KnightAh, police unions. The reason why cops can't get fired when they beat a defenseless mentally ill homeless person to death. Or when they throw a grenade into a baby's crib. Or when theykill people they were called in to help not hurt themselves.07/07/2015 - 6:26pm
Goth_SkunkeZeek: Non-union employees have no right to attend meetings or union convention/AGM, or influence policy. The only time they get to vote is whether or not to strike.07/07/2015 - 6:24pm
Infophile(cont'd) about non-union police officers being given hell until they joined the union.07/07/2015 - 4:58pm
InfophileParadoxically, the drive in the US to get rid of unions seems to have left only the most corrupt surviving. They seem to be the only ones that can find ways to browbeat employees into joining when paying dues isn't mandatory. I've heard some stories ...07/07/2015 - 4:57pm
Matthew WilsonI am old school on this. I believe its a conflict of interest to have public sector unions. that being said, I do not have a positive look on unions in general.07/07/2015 - 3:59pm
TechnogeekWhat's best for the employee tends to be good for the employer; other way around, not so much. So long as that's the case, there's going to be a far stronger incentive for management to behave in such a way that invites retalitation than for the union to.07/07/2015 - 3:10pm
TechnogeekTeachers' unions? State legislatures. UAW? Just look at GM's middle management.07/07/2015 - 3:05pm
TechnogeekIn many ways it seems that the worse a union tends to behave, the worse that the company's management has behaved in the past.07/07/2015 - 3:02pm
james_fudgeCharity starts at home ;)07/07/2015 - 2:49pm
james_fudgeSo mandatory charity? That sounds shitty to me07/07/2015 - 2:49pm
E. Zachary KnightGoth, if Union dues are automatically withdrawn, then there is no such thing as a non-union employee.07/07/2015 - 2:38pm
Goth_Skunka mutually agreed upon charity instead.07/07/2015 - 2:33pm
Goth_Skunkyou enjoy the benefits of working in a union environment. If working in a union is against your religious beliefs or just something you wholeheartedly object to, dues will still be deducted from your pay, but you can instruct that they be directed towards07/07/2015 - 2:33pm
Goth_SkunkBasically, if you are employed in a business where employees are represented by a union for the purposes of collective bargaining, whether or not you are a union member, you will have union dues deducted from your pay, since regardless of membership,07/07/2015 - 2:32pm
Goth_SkunkIt's something that has existed in Canada since 1946. You can read more on it here: http://ow.ly/PiHWR07/07/2015 - 2:27pm
Goth_SkunkSee, we have something similar in Canada, called a "Rand Employee." This is an employee who benefits from the collective bargaining efforts of a union, despite not wanting to be a part of it for whatever reason.07/07/2015 - 2:22pm
Matthew Wilson@info depends on the sector. for example, have you looked at how powerful unions are in the public sector? I will make the argument they have too much power in that sector.07/07/2015 - 12:39pm
 

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