High Court Mulls Video Game Violence Law

By Robert Iafolla

Daily Journal Staff Writer

WASHINGTON -The disparity between how America treats sex and violence took center stage at the U.S. Supreme Court Tuesday as the justices took up the constitutionality of a California law regulating violent video games.

California Deputy Attorney General Zackery P. Morazzini argued that the statute should enjoy the same exception to the First Amendment that the court created for laws restricting minors' access to sexually explicit materials four decades ago. Such restrictions empower parents to protect the well-being of their children when they can't be present, he said.

The California Legislature passed the video game law in 2005, but the ongoing legal challenge has prevented it from going into effect. It would ban the sale or rental of games allowing players to act out the "killing, maiming, dismembering, or sexually assaulting an image of a human being" to consumers under the age of 18. The 9th U.S. Circuit Court of Appeals struck the law down in February 2009. Schwarzenegger v. Entertainment Merchants Association, 08-1448.

While a majority of the court appeared sympathetic to the idea that some type of restriction could pass constitutional muster, it also expressed concerns that the specific law in question was vague and overbroad. Justices faulted the law for failing to distinguish between age groups, pointing out that what's appropriate for a 17-year-old might not be for a 10-year-old. And they peppered Morazzini with questions about how to define the types of violence that would bring a game under the law.

"Sex and violence have both been around a long time, but there is a societal consensus about what's offensive for sexual material and there are judicial discussions on it," Justice Anthony M. Kennedy said. "But you are asking us to go into an entirely new area where there is no consensus, no judicial opinions."

Morazzini responded that, as with restrictions on sexually explicit materials, laws for controlling minors' access to violence have to begin somewhere.

"California is choosing to start now," he said. "We can build a consensus as to what level of violence is in fact patently offensive for minors, is deviant for minors, just as the case law has developed over time with sexual depictions."

Justice Antonin Scalia appeared to be the only justice to flatly reject the theory that violent content might merit the same exception to the First Amendment that the court created for restricting sexually explicit - but not obscene - material. Ginsberg v. New York, 390 U.S. 629 (1968).

"What's next after violence?" Scalia asked. "Drinking? Smoking?"

The court also pressed Morazzini on why the law targets video games and not other forms of violent media, from rap music to Bugs Bunny cartoons. The attorney said there is a crucial difference, namely that players actively participate in the events of a game, rather than passively absorbing the descriptions of violence in other forms of media.

The justices seemed to accept this distinction. Justice Samuel A. Alito Jr., for example, called video games a "totally different" form of media that couldn't "possibly have been envisioned" when the First Amendment was ratified.

Paul M. Smith, a partner at Jenner & Block representing the video game industry, attacked the notion that regulating violence merits the same consideration as regulating sexual material. He said Ginsberg works "reasonably well" because it has clear standards for what can be restricted: sexually explicit content that appeals to a prurient interest. There is no way to know how a court would define unacceptable violence, he said.

Smith also pointed out that there are different social norms for exposing children to sex versus violence. "The difference is we do not make films for children in which explicit sex happens. We do make films for children in which graphic violence happens."

Chief Justice John G. Roberts Jr. appeared to take exception to this characterization.

"We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they'll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down," Roberts shot back.

Smith maintained that California has not shown that violent video games present a compelling problem that justifies government regulation. He added, the Supreme Court ruled earlier this year that "it doesn't have a freewheeling authority to create new exceptions to the First Amendment after 200 years based on a cost-benefit analysis, and this [case] is a test of that." United States v. Stevens, 130 S.Ct. 1577.

Roberts authored the 8-1 decision in Stevens that struck down a law against so-called crush videos, which depict violence against animals, for being overbroad. But the ruling also left open the possibility that a more narrowly tailored law would be acceptable.

"Why isn't that a good approach here?" Roberts asked.

Smith responded, "You certainly could do that."

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