This Is Your Supreme Court on Video Games

Still from Postal 2, one of the games targeted by California's law. Credit: Running With Scissors.

The Supreme Court heard opening oral arguments this week in the case of Schwarzenegger vs. Entertainment Merchants Association; at issue, whether the state has the right to prohibit sales or rentals of violent video games to minors. I read the transcript of Tuesday’s proceedings with some interest: how does this particular court talk about the regulation of children’s culture? What might make this discussion about gaming different from previous kerfuffles about music, movies, television, comic books, etc etc etc? Below, a couple of interesting points:

-Cultural History as Precedent. Almost as soon as the proceedings began, Justice Scalia interrupted California’s deputy attorney general Zackery Morazzini, who was making the argument on behalf of the existing law, to make the Brothers Grimm comparison. (“Some of the Grimms’ fairy tales are quite grim, to tell you the truth. Are you going to ban them, too?”) I shouldn’t be surprised that Scalia, known as a constitutional purist, transfers his attitude about the importance of precedent from matters of the law to matters of culture. Also, Grimm seems to get trotted out as a counterpoint every time anybody advances a sentimental argument about childhood. But nobody ever reads the actual Grimm tales anymore (if you do, please comment and contradict me!), and the Grimm straw man conceals the interesting history of amendments and revisions to these tales throughout the years. Morazzini definitely didn’t go there, though; he seemed fairly cowed by this early interjection.

On the other side, Paul Smith, counsel for the video game industry, invoked past cycles of moral panic in order to convince the court that to object to video games was to repeat mistakes of the past that we now widely recognize as wrongheaded. When Justice Alito asked him whether representations of violence in a video game weren’t a completely different animal from violence when represented in print or on film, Smith argued:

We do have a new medium here, Your Honor, but we have a history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling, our children are all going to be turned into criminals. It started with the crime novels of the late 19th century, which produced this raft of legislation which was never enforced. It started with comic books and movies in the 1950s. There were hearings across the street in the 1950s where social scientists came in and intoned to the Senate that half the juvenile delinquency in this country was being caused by reading comic books, and there was enormous pressure on the industry. They self — they self-censored. We had television. We have rock lyrics. We have the Internet.

Clearly Smith, or somebody on his staff, had done his historical research; or maybe David Hajdu’s recent book about what I think of as the Seduction of the Innocent hearings has penetrated deep into the national psyche. This speech also showcased another theme of these proceedings: a vague distrust toward or confusion about social science’s ability to gauge effects of games on children (“social scientists came in and intoned…”)

-What Are You Doing When You Play A Game? Some of the most interesting exchanges came when the justices sought to clarify why playing a video game might be an expressive activity protected under the First Amendment.

Justice Kagan: Mr. Smith, do you think all video games are speech in the first instance? Because you could look at these games and say they’re the modern-day equivalent of Monopoly sets. They are games. They are things that people use to compete. You know, when you think about some of them — the first video game was Pong. It was playing tennis on your TV. How is that speech at all?

Mr. Smith: The games that we are talking about have narrative, events that are occurring, characters, and plot. That is exactly what the State has set out to regulate here. It says if these events occur here — there is violence, one person is hurting another person — it has to be a human being who is the victim — and is doing it in a way that they find offensive in some way, we are going to regulate it….

Later: The plot is a combination of what the game gives you and what the player adds to it. There is a creative aspect coming at it from the other side. It’s often referred to as a dialogue between the player…[here Scalia interrupts].

These exchanges about what, exactly, players are doing while playing video games were the ones in which the justices most often betrayed their unfamiliarity with the medium. At one point, Elena Kagan made the point that most of her law clerks grew up playing Mortal Kombat (implied: “And they became law clerks to a Supreme Court justice, so it all turned out okay”); Scalia joked, referring to the entire concept of Mortal Kombat, “I have no idea what you’re talking about.”

-What Is Human? Justice Sotomayor got all science fictiony when she asked Morazzini to amplify on the state’s provision that the harm done in a game must be done to a human in order to trigger regulation. I would have also asked whether violence to animals would qualify, but maybe that’s clear in the law.

JUSTICE SOTOMAYOR: Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?

MR. MORAZZINI: No, it wouldn’t, Your Honor, because the act is only directed towards the range of options that are able to be inflicted on a human being.

JUSTICE SOTOMAYOR: So if the video producer says this is not a human being, it’s an android computer simulated person, then all they have to do is put a little artificial feature on the creature and they could sell the video game?

MR. MORAZZINI: Under the act, yes, because California’s concern, I think this is one of the reasons that sex and violence are so similar, these are base physical acts we are talking about, Justice Sotomayor. So limiting, narrowing our law here in California, there in California to violence — violent depictions against human beings.

JUSTICE SOTOMAYOR: So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.

MR. MORAZZINI: I would think so. The intent of the law is to limit minors’ access to those games.

Based on Tuesday’s session, the video game industry seems pretty confident that their case will carry the day. Other interesting analyses of this case: on Slate’s Double X podcast, Dahlia Lithwick thought that the rough split betweens strange bedfellows Kagan, Sotomayor, and Scalia (all of whom seemed, from their interjections and questions, to favor striking down the ban), and Roberts, Breyer, and Alito (who seemed horrified by the clips of gameplay they were shown), might be a function of which justices were parents and which were not. Fast Company made a word cloud representing the text of the arguments. And Kotaku’s Stephen Totilo has been covering the proceedings continuously; he posted about the protestors on the Supreme Court steps on Tuesday, some of whom hoisted signs reading “Games Are Art” and “Live Free, Start Young.”