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Copyright c 2010 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview I. Moot Court In This Section:

New Case: 08-1448 Schwarzenegger v. Entertainment Merchants Association p. 2

Synopsis and Questions Presented p. 2

“HIGH COURT TAKES VIDEO GAME CASE” p. 12 Joan Biskupic

“SUPREME COURT TO HEAR VIDEOGAMES CASE” p. 14 Brent Kendall

“GOVERNOR SCHWARZENEGGER’S VIDEO GAME ACT TERMINATED BY THE p. 16 NINTH CIRCUIT” Brittany Blueitt

“WHY NINE COURT DEFEATS HAVEN'T STOPPED STATES FROM TRYING TO p. 18 RESTRICT ‘VIOLENT’ VIDEO GAMES” Majorie Heins

“THE COURT AS MR. FIX-IT?” p. 21 Linda Greenhouse

“A CLOSER LOOK AT THE PARALLELS BETWEEN US V. STEVENS AND EMA V. p. 23 SCHWARZENEGGER” Liz Surette

“LET’S BLAST VIDEO VIOLENCE” p. 26 Douglas Gentile

“EFFECTS OF VIOLENT VIDEO GAMES” p. 28 Jill U. Adams

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Schwarzenegger v. Entertainment Merchants Association

08-1448

Ruling Below: Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009), cert. granted, Schwarzenegger v. Entm’t Merchs. Ass’n, 2010 U.S. LEXIS 3573 (2010).

Governor Schwarzenegger signed into law an Act that imposes civil penalty of up to $1,000 on any person that sold or rented a violent video game to a minor. The Act also requires violent video games to be labeled as such. Before the Act took effect, various video game associations filed suit against the Governor and the State for declaratory relief against the Act on the grounds that it unconstitutionally restricted freedom of expression on its face based on content regulation and the labeling requirement, was unconstitutionally vague, and violated equal protection. The district court granted summary judgment in favor of the video game associations and the State of California appealed. The State urged the appellate court to extend the “obscenity as to minors” standard first mentioned in Ginsberg v. New York, which permitted a state to prohibit the sale of sexually explicit material to minors that it could not ban from distribution to adults, to include materials containing violence. The appellate court, however, declined to extend Ginsberg and held that the Act is a presumptively invalid content-based restriction on speech and strict scrutiny remained the applicable review standard. Additionally, the court found that the evidence presented by the State did not support the purported interest in preventing psychological or neurological harm to minors. None of the research established or suggested a causal link between minors playing violent video games and actual psychological or neurological harm, and inferences to that effect would not be reasonable. As a result, the State had not met its burden to demonstrate a compelling interest. Because the Act was invalid and, as a result, there was no state-mandated age threshold for the purchase or rental of video games, the State’s mandated label would arguably convey a false statement that certain conduct was illegal when it was not.

Questions Presented: (1) Does the First Amendment bar a state from restricting the sale of violent video games to minors? (2) If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?

VIDEO SOFTWARE DEALERS ASSOCIATION; Entertainment Software Association, Plaintiffs-Appellees,

v.

Arnold SCHWARZENEGGER, in his official capacity as Governor State of California; Edmund G. Brown, Jr., in his official capacity as Attorney General, State of California, Defendants-Appellants, and George Kennedy, in his official capacity as Santa Clara County District Attorney; Richard Doyle, in his official capacity as City Attorney for the City of San Jose; Ann Miller Ravel, in her official capacity as County Counsel for the County of Santa Clara, Defendants. 2

United States Court of Appeals for the Ninth Circuit

Filed February 20, 2009

[Excerpt; some footnotes and citations omitted.]

CALLAHAN, Circuit Judge: grant of summary judgment to Plaintiffs and its denial of the State’s cross-motion. Defendants-Appellants California Governor Because we affirm the district court on these Schwarzenegger and California Attorney grounds, we do not reach two of Plaintiffs’ General Brown (the “State”) appeal the challenges to the Act: first, that the language district court’s grant of summary judgment of the Act is unconstitutionally vague, and, in favor of Plaintiffs-Appellees Video second, that the Act violates Plaintiffs’ Software Dealers Association and rights under the Equal Protection Clause of Entertainment Software Association the Fourteenth Amendment. (“Plaintiffs”), and the denial of the State’s cross-motion for summary judgment. I. Plaintiffs filed suit for declaratory relief seeking to invalidate newly enacted A. California Civil Code sections 1746-1746.5 (the “Act”), which impose restrictions and a On October 7, 2005, Governor labeling requirement on the sale or rental of Schwarzenegger signed into law Assembly “violent video games” to minors, on the Bill 1179 (“AB 1179”), codified at Civil grounds that the Act violates rights Code §§ 1746-1746.5. The Act states that guaranteed by the First and Fourteenth “[a] person may not sell or rent a video Amendments. game that has been labeled as a violent video game to a minor.” Violators are We hold that the Act, as a presumptively subject to a civil penalty of up to $ 1,000. invalid content-based restriction on speech, is subject to strict scrutiny and not the * * * “variable obscenity” standard from Ginsberg v. New York, 390 U.S. 629 (1968). Applying The Act also imposes a labeling strict scrutiny, we hold that the Act violates requirement. It requires that each “violent rights protected by the First Amendment video game” imported into or distributed in because the State has not demonstrated a California must “be labeled with a solid compelling interest, has not tailored the white ‘18’ outlined in black,” which shall restriction to its alleged compelling interest, appear on the front face of the game’s and there exist less-restrictive means that package and be “no less than 2 inches by 2 would further the State’s expressed interests. inches” in size. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled A.B. 1179 states that the State of California speech under the First Amendment because has two compelling interests that support the it does not require the disclosure of purely Act: (1) “preventing violent, aggressive, and factual information; but compels the antisocial behavior”; and (2) “preventing carrying of the State’s controversial opinion. psychological or neurological harm to Accordingly, we affirm the district court’s minors who play violent video games.” A.B.

3

1179 also “finds and declares” that: Software Rating Board (“ESRB”), an independent, self-regulated body established (a) Exposing minors to depictions of by the Entertainment Software Association, violence in video games, including rates the content of video games that are sexual and heinous violence, makes voluntarily submitted. ESRB assigns each those minors more likely to game one of six age-specific ratings, ranging experience feelings of aggression, to from “Early Childhood” to “Adults Only.” It experience a reduction of activity in also assigns to each game one of roughly the frontal lobes of the brain, and to thirty content descriptors, which include exhibit violent antisocial or “Animated Blood,” “Blood and Gore,” aggressive behavior. “Cartoon Violence,” “Crude Humor,” “Fantasy Violence,” “Intense Violence,” (b) Even minors who do not commit “Language,” “Suggestive Themes,” and acts of violence suffer psychological “Sexual Violence.” harm from prolonged exposure to violent video games. C.

The State included in the excerpts of record On October 17, 2005, before the Act took several hundred pages of material on which effect, Plaintiffs filed suit against the the Legislature purportedly relied in passing Governor, the Attorney General, and three the Act. While many of the materials are city and county defendants, all in their social science studies on the asserted impact official capacities, for declaratory relief of violent video games on children, other against the Act on the grounds that it documents are varied and include legal violated 42 U.S.C. § 1983 and the First and analyses, general background papers, Fourteenth Amendments. Plaintiffs argued position papers, etc. Dr. Craig Anderson, that the Act unconstitutionally restricted whose work is central to the State’s freedom of expression on its face based on arguments in this case, is listed as an author content regulation and the labeling of roughly half of the works included in the requirement, was unconstitutionally vague, bibliography. and violated equal protection.

B. The district court granted Plaintiffs’ motion for a preliminary injunction. Video Software The content of the video games potentially Dealers Ass’n v. Schwarzenegger, 401 F. affected by the Act is diverse. Some of the Supp. 2d 1034 (N.D. Cal. 2005). games to which the Act might apply are Subsequently, the parties filed cross-motions unquestionably violent by everyday for summary judgment. The district court standards, digitally depicting what most granted Plaintiffs’ motion and denied the people would agree amounts to murder, State’s cross-motion. The district court’s torture, or mutilation. . . . summary judgment order invalidated the Act under strict scrutiny, and did not reach The video game industry has in place a Plaintiffs’ claims regarding vagueness, equal voluntary rating system to provide protection, or the Act’s labeling consumers and retailers information about requirement. The district court permanently video game content. The Entertainment enjoined enforcement of the Act. The State

4 timely appealed. this framework because the Act concerns minors. It argues that we should analyze the II. Act’s restrictions under what has been called the “variable obscenity” or “obscenity as to * * * minors” standard first mentioned in Ginsberg [v. New York]. In essence, the III. State argues that the Court’s reasoning in Ginsberg that a state could prohibit the sale [The Court concludes that the entire Act is of sexually-explicit material to minors that it not invalidated even though the State could not ban from distribution to adults concedes on appeal that the alternate should be extended to materials containing definition of a “violent video game” in violence. This presents an invitation to re- section 1746(d)(1)(B) is unconstitutionally consider the boundaries of the legal concept broad. The remaining provisions can be of “obscenity” under the First Amendment. severed.] In Ginsberg, the Court held that New York IV. State could prohibit the sale of sexually- explicit material to minors that was defined Our next task is to determine what level of by statute as obscene because of its appeal to scrutiny to apply in reviewing the Act’s minors. Therefore, the state could prohibit prohibitions. . . . the sale of “girlie magazines” to minors regardless of the fact that the material was The Supreme Court has stated that “minors not considered obscene for adults. The Court are entitled to a significant measure of First stated that “[t]o sustain the power to exclude Amendment protection, and only in material defined as obscenity by [the statute] relatively narrow and well-defined requires only that we be able to say that it circumstances may government bar public was not irrational for the legislature to find dissemination of protected materials to that exposure to material condemned by the them.” The State does not contest that video statute is harmful to minors.” The Court games are a form of expression protected by offered two justifications for applying this the First Amendment. It is also undisputed rational basis standard: (1) that that the Act seeks to restrict expression in “constitutional interpretation has video games based on its content. consistently recognized that the parents’ claim to authority in their own household to “Content-based regulations are direct the rearing of their children is basic in presumptively invalid.” We ordinarily the structure of our society”; and (2) the review content-based restrictions on state’s “independent interest in the protected expression under strict scrutiny, wellbeing of its youth.” and thus, to survive, the Act “must be narrowly tailored to promote a compelling The State suggests that the justifications Government interest.” “If a less restrictive underlying Ginsberg should apply to the alternative would serve the Government’s regulation of violent content as well as purpose, the legislature must use that sexually explicit material. The assertion, alternative.” however, fails when we consider the category of material to which the Ginsberg The State, however, urges us to depart from decision applies and the First Amendment

5 principles in which that decision was rooted. American Amusement Machine Association v. Kendrick, which involved a video game Ginsberg is specifically rooted in the restriction that mixed the regulation of Court’s First Amendment obscenity sexual and violent material, the Seventh jurisprudence, which relates to non- Circuit discussed why “[v]iolence and protected sex-based expression—not violent obscenity are distinct categories of content, which is presumably protected by objectionable depiction,” explaining that the First Amendment. Ginsberg explicitly obscenity is concerned with “offensiveness,” states that the New York statute under whereas ordinances like the one at issue in review “simply adjusts the definition of Kendrick (and here) are concerned with obscenity to social realities by permitting the conduct or harm. In Video Software Dealers appeal of this type of material to be assessed Association v. Webster, the Eighth Circuit in term of the sexual interests of such held that videos “that contain[ ] violence but minors.” The definition of obscenity that not depictions or descriptions of sexual Ginsberg adjusted was the Court’s obscenity conduct cannot be obscene.” Likewise, in test announced in Roth v. United States, Eclipse Enterprises, Inc. v. Gulotta, the which dealt with obscene materials defined Second Circuit declined to place trading with reference to sex. The Ginsberg Court cards which depicted heinous crime that was applied a rational basis test to the statute at allegedly harmful to minors in the category issue because it placed the magazines at of unprotected obscenity. Further, in James issue within a sub-category of obscenity— v. Meow Media, Inc., the Sixth Circuit, in obscenity as to minors—that had been discussing excessively violent movies and determined to be not protected by the First video game material, “decline[d] to extend Amendment, and it did not create an entirely [its] obscenity jurisprudence to violent, new category of expression excepted from instead of sexually explicit, material.” First Amendment protection. The State, in essence, asks us to create a new category of Finally, we note that the Ginsberg Court non-protected material based on its suggested its intent to place a substantive depiction of violence. limit on its holding. It stated:

The Supreme Court has carefully limited We have no occasion in this case to obscenity to sexual content. Although the consider the impact of the guarantees Court has wrestled with the precise of freedom of expression upon the formulation of the legal test by which it totality of the relationship of the classifies obscene material, it has minor and the State. It is enough for consistently addressed obscenity with the purposes of this case that we reference to sex-based material. Such was inquire whether it was the case in Roth and Memoirs v. constitutionally impermissible for Massachusetts, which modified Roth. And New York . . . to accord minors though it post-dates Ginsberg, the Court in under 17 a more restricted right than Miller v. California expressly cabined the that assured to adults to judge and First Amendment concept of obscenity in determine for themselves what sex terms of sexual material. material they may read or see.

Circuit courts have resisted attempts to Though not the clearest of disclaimers, this broaden obscenity to cover violent material language telegraphs that the Court’s concern as well as sexually-explicit material. In in Ginsberg was with the relationship 6 between the state and minors with respect to compelling interest, when the government a certain subject matter—“sex material” as it seeks to restrict speech “[i]t must relates to the interests of minors. demonstrate that the recited harms are real, not merely conjectural, and that the In light of our reading of Ginsberg and the regulation will in fact alleviate these harms cases from our sister circuits, we decline the in a direct and material way.” Although we State’s invitation to apply the Ginsberg must accord deference to the predictive rationale to materials depicting violence, and judgments of the legislature, our “obligation hold that strict scrutiny remains the is to assure that, in formulating its applicable review standard. Our decision is judgments, [the legislature] has drawn consistent with the decisions of several other reasonable inferences based on substantial courts that have addressed and rejected the evidence.” argument that the Ginsberg standard be extended from the field of sex-based content In evaluating the State’s asserted interests, to violence in video games. At oral we must distinguish the State’s interest in argument, the State confirmed that it is protecting minors from actual psychological asking us to boldly go where no court has or neurological harm from the State’s gone before. We decline the State’s entreaty interest in controlling minors’ thoughts. The to extend the reach of Ginsberg and thereby latter is not legitimate. . . . redefine the concept of obscenity under the First Amendment. In Kendrick, the Seventh Circuit commented on a psychological harm rationale in the V. violent video game context:

Accordingly, we review the Act’s content- Violence has always been and based prohibitions under strict scrutiny. As remains a central interest of noted above, “[c]ontent-based regulations humankind and a recurrent, even are presumptively invalid,” and to survive obsessive theme of culture both high the Act “must be narrowly tailored to and low. It engages the interest of promote a compelling Government interest. children from an early age, as Further, “[i]f a less restrictive alternative anyone familiar with the classic fairy would serve the Government’s purpose, the tales collected by Grimm, Andersen, legislature must use that alternative.” and Perrault is aware. To shield children right up to the age of 18 A. from exposure to violent descriptions and images would not only be . . . The State’s focus is on the actual harm quixotic, but deforming; it would to the brain of the child playing the video leave them unequipped to cope with game. Therefore, we will not assess the the world as we know it. Legislature’s purported interest in the prevention of “violent, aggressive, and Because the government may not restrict antisocial behavior.” speech in order to control a minor’s thoughts, we focus on the State’s The Supreme Court has recognized that psychological harm rationale in terms of “there is a compelling interest in protecting some actual effect on minors’ psychological the physical and psychological well-being of health. minors.” Notwithstanding this abstract 7

Whether the State’s interest in preventing slightly larger for the 18 and over group.” psychological or neurological harm to He concludes the meta-analysis with the minors is legally compelling depends on the admission that there is a “glaring empirical evidence the State proffers of the effect of gap” in video game violence research due to video games on minors. Although the “the lack of longitudinal studies.” Legislature is entitled to some deference, the courts are required to review whether the Thus, Dr. Anderson’s research has readily Legislature has drawn reasonable inferences admitted flaws that undermine its support of from the evidence presented. Here, the State the State’s interest in regulating video games relies on a number of studies in support of sales and rentals to minors, perhaps most its argument that there is substantial importantly its retreat from the study of the evidence of a causal effect between minors psychological effects of video games as playing violent video games and actual related to the age of the person studied. psychological harm. Although not dispositive of this case, we note that other courts have either rejected The State relies heavily on the work of Dr. Dr. Anderson’s research or found it Craig Anderson, pointing to Dr. Anderson’s insufficient to establish a causal link 2004 updated meta-analysis called An between violence in video games and update on the effects of playing violent video psychological harm. games. This article states that it “reveals that exposure to violent video games is The State also relies on a study of the effects significantly linked to increases in of video game violence on adolescents, aggressive behaviour, aggressive cognition, conducted by Dr. Douglas Gentile, which aggressive affect, and cardiovascular studied eighth and ninth graders and arousal, and to decreases in helping concluded that “[a]dolescents who expose behaviour.” Even upon lay review, however, themselves to greater amounts of video the disclaimers in this article, alone, game violence were more hostile” and significantly undermine the inferences reported getting into more arguments and drawn by the State in support of its fights and performing poorly in school. The psychological harm rationale. First, Dr. extent to which this study supports the Anderson remarks on the relative paucity of State’s position is suspect for similar reasons the video game literature and concedes that as Dr. Anderson’s work. First, this study the violent video game literature is not states that due to its “correlational nature” it sufficiently large to conduct a detailed meta- could not directly answer the following analysis of the specific methodological question: “Are young adolescents more features of other studies, many of which hostile and aggressive because they expose were themselves flawed. Second, he further themselves to media violence, or do states that “[t]here is not a large enough previously hostile adolescents prefer violent body of samples . . . for truly sensitive tests media?” Second, this study largely relates to of potential age difference in susceptibility the player’s violent or aggressive behavior to violent video game effects,” and jettisons toward others—which, as noted above, is mid-article his exploration of the effect of not the interest relied on by the State here— age differences (i.e., over-eighteen versus rather than the psychological or neurological under-eighteen). It appears that he harm to the player. Moreover, the study abandoned the age aspect of the study, in glaringly states that “[i]t is important to note part, because “there was a hint that the . . . that this study is limited by its aggressive behaviour results might be correlational nature. Inferences about causal 8 direction should be viewed with caution.” demonstrated a compelling interest in Finally, Dr. Gentile’s study suggests that preventing psychological or neurological “[a]dditional experimental and longitudinal harm, the State still has the burden of research is needed.” demonstrating that the Act is narrowly tailored to further that interest, and that there Additionally, the State relies on a study by are no less restrictive alternatives that would Dr. Jeanne Funk for the proposition that further the Act. We hold that the State has video games can lead to desensitization to not demonstrated that less restrictive violence in minors. Like the others, this alternative means are not available. study presents only an attenuated path between video game violence and Instead of focusing its argument on the desensitization. It specifically disclaims that possibility of less restrictive means, the it is based on correlation principles and that State obscures the analysis by focusing on “causality was not studied.” the “most effective” means, which it asserts is the one thousand dollar penalty imposed Finally, the State relies on a two-page press for each violation. Specifically, the State release from Indiana University regarding argues that the ESRB rating system, a the purported connection between violent voluntary system without the force of law or video games and altered brain activity in the civil penalty, is not a less-restrictive frontal lobe. The research described, alternative means of furthering the conducted in part by Dr. Kronenberger, has Legislature’s purported compelling interest. been criticized by courts that have reviewed Acknowledging that the industry has it in depth. implemented new enforcement mechanisms, the State nevertheless argues that the ESRB In sum, the evidence presented by the State does not adequately prevent minors from does not support the Legislature’s purported purchasing M-rated games. The State also interest in preventing psychological or dismisses the notion that parental controls neurological harm. Nearly all of the research on modern gaming systems could serve the is based on correlation, not evidence of government’s purposes, arguing that there is causation, and most of the studies suffer no evidence that this technology existed at from significant, admitted flaws in the time the Act was passed. methodology as they relate to the State’s claimed interest. None of the research Further, the State does not acknowledge the establishes or suggests a causal link between possibility that an enhanced education minors playing violent video games and campaign about the ESRB rating system actual psychological or neurological harm, directed at retailers and parents would help and inferences to that effect would not be achieve government interests. The State reasonable. In fact, some of the studies appears to be singularly focused on the caution against inferring causation. “most effective” way to further its goal, Although we do not require the State to instead of the “least restrictive means,” and demonstrate a “scientific certainty,” the has not shown why the less-restrictive State must come forward with more than it means would be ineffective. has. As a result, the State has not met its burden to demonstrate a compelling interest. Even assuming that the State’s interests in enacting the Act are sufficient, the State has B. not demonstrated why less restrictive means Even if we assume that the State would not forward its interests. The Act, 9 therefore, is not narrowly tailored. Based on analysis would direct what level of scrutiny the foregoing, and in light of the to apply to the labeling requirement. presumptive invalidity of content-based However, we need not decide that question restrictions, we conclude that the Act fails because the labeling requirement fails even under strict scrutiny review. under the factual information and deception prevention standards set forth in Zauderer. VI. Our holding above, that the Act’s sale and rental prohibition is unconstitutional, Finally, we evaluate the constitutionality of negates the State’s argument that the the Act’s labeling provision, which requires labeling provision only requires that video that the front side of the package of a game retailers carry “purely factual and “violent video game” be labeled with a four uncontroversial information” in advertising. square inch label that reads “18.” Plaintiffs Unless the Act can clearly and legally argue that section 1746.2 unconstitutionally characterize a video game as “violent” and forces video game retailers to carry the State not subject to First Amendment protections, of California’s subjective opinion, a the “18” sticker does not convey factual message with which it disagrees. The State information. counters that the “labeling provision impacts the purely commercial aspect regarding Moreover, the labeling requirement fails retail sales of the covered video games” and, Zauderer’s rational relationship test, which under the resulting rational basis analysis, asks if the “disclosure requirements are the labeling requirement is rationally related reasonably related to the State’s interest in to the State’s “self-evident purpose of preventing deception of customers.” Our communicating to consumers and store determination that the Act is clerks that the video game cannot be legally unconstitutional eliminates the alleged purchased by anyone under 18 years of age.” deception that the State’s labeling requirement would purportedly prevent: the Generally, “freedom of speech prohibits the misleading of consumers and retailers by the government from telling people what they ESRB age ratings that already appear on the must say.” Commercial speech, however, is video games’ packaging. Since the Act is generally accorded less protection than other invalid and, as a result, there is no state- expression. The Court has upheld compelled mandated age threshold for the purchase or commercial speech where the state required rental of video games, there is no chance for inclusion of “purely factual and deception based on the possibly conflicting uncontroversial information” in advertising. ESRB rating labels. In fact, the State’s Compelled disclosures, justified by the need mandated label would arguably now convey to “dissipate the possibility of consumer a false statement that certain conduct is confusion or deception,” are permissible if illegal when it is not, and the State has no the “disclosure requirements are reasonably legitimate reason to force retailers to affix related to the State’s interest in preventing false information on their products. deception of customers. VII. Ordinarily, we would initially decide whether video game packaging constitutes We decline the State’s invitation to apply separable commercial speech or commercial the variable obscenity standard from speech that is “inextricably intertwined” Ginsberg to the Act because we do not read with otherwise fully-protected speech. That Ginsberg as reaching beyond the context of 10 restrictions on sexually-explicit materials or forwarding the State’s purported interests, as creating an entirely new category of such as the improved ESRB rating system, expression—speech as to minors—excepted enhanced educational campaigns, and from First Amendment protections. As the parental controls. Finally, even if the Act’s Act is a content based regulation, it is labeling requirement affects only subject to strict scrutiny and is commercial speech in the form of video presumptively invalid. Under strict scrutiny, game packaging, that provision constitutes the State has not produced substantial impermissibly compelled speech because the evidence that supports the Legislature’s compelled label would not convey purely conclusion that violent video games cause factual information. Accordingly, the district psychological or neurological harm to court’s grant of summary judgment to minors. Even if it did, the Act is not Plaintiffs and denial of the State’s cross- narrowly tailored to prevent that harm and motion for summary judgment is there remain less-restrictive means of AFFIRMED.

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“High Court Takes Video Game Case”

USA Today April 29, 2010 Joan Biskupic

Taking up a new First Amendment test of Entertainment Software Association, bars disturbing images, the Supreme Court the sale or rental of “violent” video games to agreed Monday to hear California’s appeal minors and calls for fines of up to $1,000. of a decision that struck down a state law prohibiting the sale or rental of violent video The law defines a violent game as one that games to minors. depicts “killing, maiming, dismembering or sexually assaulting an image of a human The justices’ decision to accept the case, being” in a way that appeals to a deviant which will be heard in the term that begins interest of minors and lacks “serious literary, next fall, comes a week after the justices artistic, political or scientific value.” threw out a federal law that swept too broadly in banning depictions of animal As an example of a game the law might cruelty. The court by an 8-1 vote rejected cover, California officials cited one in which arguments by the federal government that it “girls attacked with a shovel will beg for could carve out a new exception to the First mercy; the player can be merciless and Amendment—as exists for obscenity—for decapitate them.” images of animal cruelty, such as dogfighting. A federal appeals court ruled last year that the California law was too broadly written In the new dispute, Schwarzenegger v. and that state lawyers had failed to justify Video Software Dealers Association, any First Amendment exception for video California officials urge the justices to create games. The appeals court questioned the an exemption for a class of violent videos connection to psychological harm to youths that appeals “to the deviant or morbid and said, “Even if the state had a compelling interest and has no socially redeeming value interest in preventing psychological or for minors.” neurological harm allegedly caused by violent video games, the law was not Led by Attorney General Jerry Brown, state narrowly tailored to further that interest.” officials say studies point to “growing evidence that these games harm minors.” In its appeal, California argues that “excessively violent material is no more Paul Smith, a lawyer who represents worthy of First Amendment protection than associations of companies that create and sexual material” when children are involved. sell videos, disputed the danger of the games The state’s argument relies largely on a and termed them “a modern form of artistic 1968 case, Ginsberg v. New York, that expression. Like motion pictures and upheld restrictions on the sale of sexual television programs, video games tell stories material to minors. and entertain audiences.” Smith had countered that the obscenity The 2005 law, challenged by the Video exception to the First Amendment has long Software Dealers Association and been confined to sexually explicit, not

12 violent, materials. Regarding video games Amendment Center at Vanderbilt generally, Smith said, “Like great literature, University, said the case “gives the court a games often involve themes such as good vs. pristine opportunity to explain whether the evil, triumph over adversity, struggle against ‘harmful to minors’ standard applies outside corrupt powers and quest for adventure. of sex and into violence.”

David Hudson, a lawyer at the First

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“Supreme Court to Hear Videogames Case”

The Wall Street Journal April 27, 2010 Brent Kendall

The U.S. Supreme Court on Monday agreed protection. to decide the constitutionality of a California law that seeks to ban the sale of violent Michael D. Gallagher, president of the videogames to minors. Entertainment Software Association, which represents U.S. computer-game and Two lower courts struck down the law as an videogame publishers, said the industry’s unconstitutional restriction on freedom of voluntary rating system has successfully speech. informed consumers and parents about the games’ content. How the high court rules could affect videogame makers such as Activision Entertainment lawyer Stephen Smith, of the Blizzard Inc., producer of “Call of Duty,” Greenberg Glusker law firm in Los Angeles, and Take-Two Interactive Software Inc.’s said games rated as “mature,” such as “Call Rockstar Games, which makes “Grand Theft of Duty” and “Grand Theft Auto,” are some Auto.” The case could also have of the industry’s biggest sellers. He said the implications for the broader entertainment loss of teen customers could make it hard for industry, specifically for producers of companies to justify large budgets for violent movies and television shows. creating and marketing such games. But he also said restricting sales wouldn’t be easy Last week the court took a broad view of the because many games are purchased and First Amendment when it struck down a played online. federal law banning depictions of animal cruelty. The court said the law was too It isn’t clear which games would be affected sweeping in restricting speech. by California’s law, which defines a violent video game as one that “includes killing, California argued in its petition to the maiming, dismembering or sexually Supreme Court that lawmakers should be assaulting an image of a human being.” able to ban sales of violent videogames to those younger than 18 just as they can In a statement, California Attorney General restrict the sale of sexual material to minors. Edmund G. Brown Jr. said: “It is time to allow California’s common-sense law to go The state said violent videogames are “a into effect and help parents protect their new, modern threat to children” that cause children from violent video games.” psychological harm and make minors more likely to exhibit violent or aggressive The Supreme Court’s decision to consider behavior. the case came as something of a surprise because lower courts have been unanimous Two trade associations challenged the law in striking down laws similar to California’s. before it went into effect, arguing that videogames are a modern form of artistic A federal trial judge in San Jose and the 9th expression entitled to First Amendment U.S. Circuit Court of Appeals each ruled 14 that California didn’t have sufficient Oral arguments will take place during the evidence to support the claim that violent court’s next term, which begins in October. videogames harmed minors. The courts also said there were other, less restrictive ways to “This is an important issue with national prevent minors from playing the games, implications, particularly in light of the such as parental controls on some gaming growing evidence that these games harm systems. minors and that industry self-regulation through the existing rating system has The case is Schwarzenegger v. proven ineffective,” the state said in its Entertainment Merchants Assn., 08-1448. petition.

15

“Governor Schwarzenegger’s Video Game Act Terminated by the Ninth Circuit”

JOLT Digest February 28, 2009 Brittany Blueitt

The United States Court of Appeals for the California Civil Code §§ 1746-1746.5 (the Ninth Circuit affirmed the order of the “Act”) restricts the sale of violent video United States District Court for the Northern games to minors, and imposes a labeling District of California, enjoining the requirement on such games. Video Software enforcement of an Act that imposed a Dealers Association and Entertainment mandatory labeling requirement for all Software Association filed for declaratory “violent” video games and prohibited the relief seeking to invalidate the Act on the sale of such games to minors. grounds that it violated rights guaranteed under the First Amendment. The District The Ninth Circuit held that the Act posed a Court granted summary judgment for the presumptively invalid content-based plaintiffs. restriction on speech in violation of the First Amendment of the United States In upholding the District Court’s order and Constitution. The Ninth Circuit also held striking down the Act, the Ninth Circuit that the Act’s labeling requirement declined to “boldly go where no court has constituted unconstitutionally compelled gone before” by extending the “variable speech because it did not require disclosure obscenity” (“obscenity as to minors”) of purely factual information, but required standard set forth in Ginsberg v. New York the carrying of the State’s opinion as to the 390 U.S. 629 (1968), which upheld the nature of the video game. In so holding, the prohibition of sale of sexually-explicit Court noted that “minors are entitled to a material to minors that was defined by significant measure of First Amendment statute as obscene because of its appeal to protection, and only in relatively narrow and minors. In doing so, the Court restricted well-defined circumstances may government Ginsberg’s application to sex-based bar public dissemination of protected expression, not expression containing only materials to them.” violent content. After declining to expand Ginsberg, the Court reviewed the Act in The Wall Street Journal highlights that the accordance with the presumption of state, in defending the law, argued that invalidity applied to content-based violence and sex should be governed by restrictions, and finally determined that the analogous prohibitions: the government can State’s asserted interest in “preventing prohibit the sale of explicit pornography to psychological or neurological harm to minors, and so it should also be able to limit minors” was insufficient to pass strict the sale of ultra-violent video games. scrutiny.

Ars Technica notes that should this case According to the Court, the government’s reach the Supreme Court, it is unlikely that interest is compelling only when “the recited the Court will discover anything that the harms are real, not merely conjectural and [ ] court of appeals failed to notice. the regulation will in fact alleviate these

16 harms in a direct and material way.” The Ninth Circuit noted that although Court found the research proffered by the commercial speech is accorded less State to support its assertion of harm protection than other speech, the Court has insufficient because the research suggested only upheld compelled commercial speech only correlation between actual where the State required inclusion of “purely psychological harm and violent video games factual and uncontroversial information.” and not causation. Furthermore, the Court The label required by the Act did not found that even if there was a direct causal provide factual information but rather relationship between the asserted harms and compelled speech concerning the violent video games, the State failed to government’s opinion about the content of demonstrate that the Act was narrowly the video game. This type of compelled tailored to achieve the State interest. speech is cannot pass constitutional scrutiny.

Turning to the question of labeling, the

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“Why Nine Court Defeats Haven't Stopped States from Trying to Restrict ‘Violent’ Video Games”

The Free Expression Policy Project August 15, 2007 Marjorie Heins

The August 6, 2007, decision by U.S. delinquency. In the 1960s, 70s, and 80s, the District Judge Ronald Whyte striking down government liberally funded researchers California’s video game censorship law was who sought to prove harmful effects from the ninth such ruling by a federal court in gunslinger shows and other televised the past six years. Yet state and local violence, and politicians as well as the legislators continue to press for laws researchers often misrepresented the dubious restricting minors’ access to games with results of their experiments. “violence,” “inappropriate violence,” “ultra violence,” or whatever other term they hope Fast forward to 2000, when four will ban the games they think harmful. professional associations issued a “Joint Statement” asserting that “well over 1000 According to the website Game studies . . . point overwhelmingly to a causal Censorship.com, Delaware, Indiana, Kansas, connection between media violence and New York, North Carolina, and Utah are aggressive behavior in some children.” The currently considering legislation restricting Statement was so rife with errors that it was minors’ access to games with violent difficult to understand how these groups— content. The nine states or localities whose which included the American Medical laws have been struck down include (in Association (the AMA)—could have addition to California) Indianapolis, St. endorsed it. Louis, Michigan, Washington, Illinois, Louisiana, Minnesota, and Oklahoma. Dr. Edward Hill, chair-elect of the AMA, shed some light on this question the Why do lawmakers continue to press for following year during a panel discussion. censorship of video games despite the clear Responding to questions about the Joint unconstitutionality of the enterprise? The Statement, Dr. Hill explained that it was the answer probably lies in the long history of AMA’s desire for health education funding media-violence politics, a history that goes that drove its support of the Joint Statement. back more than a century, to an era when The AMA is “sometimes used by the concerns that crime and detective magazines politicians. We try to balance that because would corrupt urban youth first led to laws we try to use them also, so it’s a contest. . . . banning stories of “bloodshed, lust, or There were political reasons for signing on. crime.” The concern resurfaced in the 1930s, We’re looking for a champion in Congress once movies captured the national that will be willing to back our desire for imagination, and again in the 1950s when funding for comprehensive school health in television became our dominant mass this country.” medium, while crime-and-adventure comics were accused of causing juvenile By the late 1990s, violent video games were

18 stirring new concerns. Their interactivity, decision from a sister court, striking down some critics said, increased the risk of Indianapolis’s ordinance. In that case, the imitative behavior. Psychologist Craig court observed that from Grimm’s fairy tales Anderson became a prominent spokesman to horror movies and epic poems, violent for this view; among his experimental themes have been part of children’s findings were that subjects who had played literature; to shield them from the subject violent games in a laboratory administered “would not only be quixotic, but slightly longer “noise blasts” than a control deforming.” Neither Anderson’s “aggressive group. They also recognized “aggressive word” and “noise blast” experiments nor any words” slightly more quickly. (The other evidence before the court showed that difference was in fractions of a second.) video games “have ever caused anyone to Anderson posited that recognizing commit a violent act,” or “have caused the aggressive words reflects aggressive average level of violence to increase thoughts, and that aggressive thoughts lead anywhere.” to aggressive behavior. In the Illinois case, the judge was Anderson’s research may have been squishy, particularly skeptical of expert witness but several states and localities relied on it testimony from Anderson and another between 2000 and 2006 in passing laws to psychologist, William Kronenberger. The restrict minors’ access to video games. St. judge noted that Anderson had Louis’s ordinance, for example, criminalized acknowledged exaggerating the significance selling, renting, or otherwise making of studies that simply show a correlation available to minors any “graphically between aggression and video game play violent” video game, or permitting free play (rather than a causative relationship); that of such a game without the consent of a the longer noise blasts his subjects gave parent or guardian. The St. Louis County after playing violent games were “a matter Council, before passing the law, heard of milliseconds”; and that he had testimony from Anderson that playing manipulated the data and methodology in his violent games for 10 to 15 minutes causes “meta-analyses.” More credible, the court “aggressive behavior” and “that children found, were the plaintiffs’ experts, who have more aggressive thoughts and testified that Anderson “not only had failed frequently more aggressive behavior after to cite any peer-reviewed studies that had playing violent video games.” shown a definitive causal link between violent video game play and aggression, but A federal district court relied on these had also ignored research that reached statements in upholding the law, but the conflicting conclusions.” The judge was Court of Appeals reversed, finding the equally unsparing in his dissection of Dr. County’s conclusions to be “simply Kronenberger’s testimony that studies of unsupported in the record.” Anderson’s adolescent brain activity point to harm from “vague generality” about aggressive violent video games. thoughts and behavior, the judges said, “falls far short of a showing that video games are None of this means, of course, that some psychologically deleterious,” and other violent media might not sometimes reinforce testimony was equally “ambiguous, violent attitudes in some people, or even, inconclusive, or irrelevant.” occasionally, contribute to violent behavior. A lack of proof in court is simply that—a The judges in the St. Louis case cited a lack of proof. It doesn’t mean that the 19 contrary has been proven. Certainly, there That latter definition was borrowed from the are isolated instances of direct imitation, and familiar three-part test that courts have used certainly, the sadistic or misogynistic ideas to condemn sexual material that’s deemed found in some games are disturbing. As the “obscene” or “harmful to minors.” But as court decisions suggest, though, it’s Judge Whyte explained, violent expression impossible to define what kind of violent is generally protected by the First images are harmful (just as it’s impossible to Amendment unless the government can pinpoint or quantify violent entertainment’s show a “compelling” reason for its possibly positive effects in relieving tension suppression; “obscene” sexual expression is or processing aggressive feelings in a safe not. As for the alternative definition way). (“heinous, cruel, or depraved”), he pointed out that it “has no exception for material The California law was typical in its with some redeeming value and is therefore (unsuccessful) attempt to craft a definition too broad. The definition could literally of “violent video game” that wouldn’t be so apply to some classic literature if put in the broad as to encompass the universe of form of a video game.” historical, sports, fantasy, sci-fi, action/adventure, knights-in-armor, Despite the impossibility of drafting a video simulated battlefield, or classic literature game censorship law that wouldn’t be games. The definition had two parts: it unconstitutionally vague and overbroad, banned distribution to minors of games that politics will likely continue to drive this either (1) enable players to inflict virtual debate—at least until health professionals, injury “in a manner which is especially legislators, and other policymakers agree to heinous, cruel, or depraved,” or that (2) unite behind programs of media literacy “appeal to a deviant or morbid interest of education and genuine violence reduction minors,” are “patently offensive to rather than attacking entertainment and prevailing standards in the community as to expression. Action-hero-turned-Governor what is suitable for minors,” and “lack Arnold Schwarzenegger, the defendant in serious literary, artistic, political, or the California case, would be an ideal scientific value for minors.” candidate to lead such an initiative.

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“The Court as Mr. Fix-It?”

The New York Times April 30, 2010 Linda Greenhouse

Prohibition ended 77 years ago, yet challenged in court has been declared Americans have still not kicked the habit of unconstitutional. trying to fix social problems by banning things. So it was baffling this week to find the Supreme Court weighing in where it doesn’t Half a century ago, the target was true-crime appear to be needed. The court typically novels and magazines, those filled with takes up only those questions that have “pictures or stories of criminal deeds of produced contradictory rulings in the lower bloodshed, lust, or crime,” in the words of a courts; a “conflict in the circuits” is the New York statute that made it a crime to primary marker of a case the justices deem print, sell or even to give away such matter. worthy of their attention. Yet the justices Nineteen other states had similar laws. The have agreed to hear California’s appeal of a Supreme Court declared in 1948 that the ruling by the United States Court of Appeals statutes violated the First Amendment’s for the Ninth Circuit that struck down a state guarantee of free speech, prompting a law imposing a fine of up to $1,000 for the passionate dissent from Justice Felix sale or rental of a “violent video game” to a Frankfurter. The former Harvard Law person under the age of 18. The 2005 statute School professor complained that the defines “violent video game” as one that majority was thwarting the states’ effort “to “appeals to a deviant or morbid interest of solve what is perhaps the most persistent, minors;” offends community standards; and intractable, elusive and demanding of all lacks “serious literary, artistic, political, or problems in society—the problem of crime scientific value for minors.” and, more particularly, of its prevention.” This definition mirrors the way the Supreme The notion that reading a novel or magazine Court defines obscenity, a category of could turn a decent citizen into a criminal— expression deemed to lack First Amendment or that banning one could make the streets protection. But obscenity, as a legal safer—sounds preposterous today. So does category, always has a sexual component. the more recent effort by Nassau County, California is asking the Supreme Court for a N.Y., to ban the sale to minors of trading new carve-out from the First Amendment, cards depicting notorious criminals, an for depictions of violence when made ordinance that the federal appeals court in available to minors. The state “is asking us New York declared unconstitutional in to boldly go where no court has ever gone 1997. before,” the Ninth Circuit panel observed.

The latest threat to public safety and morals, Maybe the Supreme Court accepted the evidently, is the video game. Bans on the case, Schwarzenegger v. Entertainment sale or rental of violent video games to Merchants Association, simply in order to minors are popping up all over the kill the state’s stunningly broad theory in the country—eight states so far, along with cradle. The Roberts court has been highly several local laws. Every one that has been protective of free speech (too much so,

21 according to critics of the recent campaign Seventh Circuit wrote in 2001, invalidating finance decision, Citizens United v. Federal an Indianapolis violent-video ordinance. It’s Election Commission, which invalidated hard to top the Odyssey or the Divine limits on corporate political speech). And Comedy for gruesome depictions of torture just last week, in United States v. Stevens, and mayhem, Judge Posner said, adding that the court voted 8 to 1 on First Amendment shielding modern children from violent grounds to strike down a federal law that imagery “would leave them unequipped to criminalized “crush videos” and other cope with the world as we know it.” commercial depictions of animal cruelty. Whatever its motive, the Supreme Court’s Or maybe the justices want to spare other intervention at this point seems so gratuitous courts the need to keep reviewing and that I find it hard to shake the concern that declaring unconstitutional an endless some justices may actually think that social assortment of violent-video bans. If so, they engineering of this sort may actually do could hardly do better than simply to adopt some good. If so, let’s hope that the history- the opinion that Judge Richard A. Posner of minded conservatives check their history the United States Court of Appeals for the before signing on to this latest fad.

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“A Closer Look at the Parallels between US v. Stevens and EMA v. Schwarzenegger”

GamesLaw April 21, 2010 Liz Surette

This article is to supplement [Game (discussed below), the Government suggests Politics]’s coverage of US v. Stevens and its that such a balancing test can be used to implications for the game industry. I will create new categories of unprotected speech elaborate on why the Supreme Court refuses all of the time. to analogize depictions of the unlawful killing, maiming, wounding, etc. of animals As Chief Justice Roberts pointed out in the to child pornography and why it probably 8-1 majority opinion, to use this “balancing will not liken video game violence to it test” that the government relies on would either in the pending case EMA v. put at risk of censorship a great amount, if Schwarzenegger. Also, the somewhat less- not the vast majority, of the ordinary speech discussed basis for the Stevens decision: we make to each other every day because overbreadth of the statute and why the EMA much of we say in ordinary conversation has law will also likely be found overbroad and little or no “religious, political, scientific, stricken. educational, journalistic, historical, or artistic” value. It is an alarming proposition 1. Why the Court did not create a new that the states, municipalities, and the category of unprotected speech, and why federal government could ban speech that they probably will not do so in EMA they found objectionable “simply on the either. basis that some speech is not worth it.” He goes on to acknowledge that while certain For those not familiar, First Amendment categories of speech, such as child jurisprudence recognizes specific categories pornography, have been described as having of speech that are minimally protected or not such slight or nonexistent value as to be protected at all. If the speech restricted by outweighed by societal interests, those the government, most often by statute in descriptions are just . . . well, “descriptions” First Amendment cases, is outside of those and not the actual rationale behind the specific, narrowly drawn categories, the holdings. court will apply the Strict Scrutiny test. In order to pass Strict Scrutiny, a content-based In New York v. Ferber, the Supreme Court restriction on speech must be narrowly carved out a relatively new category of tailored to serve a compelling government unprotected speech—child pornography. In interest and use the least restrictive means to the Stevens opinion, the Court made it quite do so—more on that later. clear that Ferber was very exceptional and that states will not be successful in Here, the Government argues that even analogizing just anything to it in order to without historical precedent, new categories create new exceptions to First Amendment of unprotected speech can still be created if protection. In Ferber, the state had a a weighing of the “value of the speech compelling interest in protecting children against its societal costs” falls more heavily from abuse and the Court further found that on the latter. Because of New York v. Ferber the market for child pornography is 23 intrinsically related to actual child abuse. downfall of statutes, particularly in the First While it could be argued that the market for Amendment context. To put it plainly, a crush videos is intrinsically related to animal statute will be adjudged overbroad, and cruelty, the Court in Stevens did not say that therefore invalid, if it just so happens to preventing animal cruelty was a compelling sweep in speech that the government has no state interest. (More on that later, too.) I read right to restrict (even if the government did Stevens’ interpretation of Ferber to mean not intend it to), as well as speech that it can. that both a compelling state interest and an The rationale behind invalidating a statute intrinsic relation between the prohibited for this reason is that a person will decline to conduct and the restricted speech (which exercise their right to free speech for fear of could also inform a narrow tailoring running afoul of the law—thereby resulting analysis) are required at the very least to in the dreaded chilling effect. create a new category. If we were to apply that to the statute at issue in EMA, we may Many statutes of all kinds have “safe have a compelling interest in protecting harbor” provisions—exceptions that are children from psychological harm, but we written in as an attempt to protect citizens find no causal relationship between video against unintended applications of the law. game violence and psychological harm to For example, it is well settled (see Miller v. children, let alone an intrinsic relation California) that a law restricting obscenity between depictions of violence in games and must have a safe harbor because we violence in reality. I wonder if the Court acknowledge that oftentimes patently would even go as far as I just did, given that offensive depictions of sex should be it considers Ferber to be very, very, unique. permitted and are often necessary for literary, artistic, educational, or scientific The balancing test that has been adopted purposes, even if the work they are was done so by the people in our social contained in appeals to the prurient interest contract with our government by virtue of when taken as a whole. The safe harbor the First Amendment is as follows: the protects such works if they exhibit serious benefits of restricting the government itself, value, and so the local bookstore can sell in this case its ability to regulate and restrict erotic literature without fear of prosecution speech, outweigh the costs. Though crush even if it cannot sell Hustler. videos are disgusting, and some video game violence is outright gratuitous and excessive, The law at issue in Stevens contains such a the government cannot simply decide that it clause, which the Government argues should wants to prohibit certain types of speech save it. Any depiction that has “serious based on its own whims as to what it finds religious, political, scientific, educational, valuable and what if finds harmful. That is journalistic, historical, or artistic value” is why the Court will probably not decide that immune from prohibition. However, the safe virtual depictions of “killing, maiming, harbor was not enough to alleviate the dismembering, or sexually assaulting an statute’s overbreadth because the word image of a human being” are unprotected “serious” itself actually restricts the amount speech in EMA v. Schwarzenegger. of protection that the safe harbor would give to speech that is outside of the crush videos, 2. Overbreadth—why the “safe harbor” animal fighting (except Spanish exception won’t save the EMA law. bullfighting), or other extreme depictions of animal cruelty that the law was intended to Overbreadth is a common cause of the prohibit. In addition to the high standard that 24 the word “serious” implies, there is the restriction and therefore would not be problem that much speech that is usually sufficient to preserve the statute’s validity. protected (by default, I might add) simply does not have serious religious, political, 3. Conclusion and an observation. scientific, educational, journalistic, historical, or artistic value. The Court uses In case you skimmed or skipped the wall of recreational hunting videos as an example of text (understandable), in sum, the statute at how speech that should ordinarily be issue in EMA v. Schwarzenegger is protected would not fall under the safe analogous to the one in US v. Stevens and harbor because it is merely “recreational.” will probably be stricken down because the Also, the Government failed to justify its Court is loathe to create new categories of characterization of Spanish bullfighting unprotected speech except in very extreme videos as having inherent value and circumstances, and that the statute restricts reconcile that with its notion that Japanese speech that is protected, even if it also dog-fighting videos (one of which was one regulates speech that is unprotected. of the grounds for Stevens’ conviction) do not. In short, no reading of the safe harbor I mentioned Strict Scrutiny way back up results in the government banning only the there in the second paragraph of section speech that it has specifically intended to (chapter?) 1. It is interesting to note that the and that is why it is overbroad and invalid. 3rd Circuit below upheld the striking down We could easily apply these ideas to the safe of the statute in US v. Stevens because it did harbor clause in California’s law restricting not pass Strict Scrutiny—it found that the the sale of violent video games to minors. interest in preventing cruelty to animals was The statute exempts from its definition of not compelling, that the statute was not “violent video game” (and therefore from narrowly tailored to serve that interest, and the prohibition of sale to minors) games that that it did not use the least restrictive means do not “as a whole lack serious literary, of doing so. Although the Supreme Court artistic, political, or scientific value for opinion struck the law down on the basis of minors.” Again, we can see the burden that overbreadth, the only time that overbreadth the word “serious” imposes. All games have is mentioned in the 3rd Circuit opinion is in artistic value, but whether that value is a footnote in which it notes that the law only “serious” could be debatable in some cases “might” be overbroad. What I find most depending on what any legislature’s fascinating is that, aside from a summary of definition of “serious” is. Also, as above, procedural history, there was no mention of video games are without question Strict Scrutiny in the entire majority “recreational,” and the vast majority of opinion. But all’s well that ends well, I recreational speech is protected under the suppose. First Amendment by default. Even if a game does not have serious artistic value, it would The Court might choose to address Strict still be entitled to First Amendment Scrutiny in EMA v. Schwarzenegger and protection if it is not obscene (or if maybe even overbreadth and vagueness. Not depictions of graphic violence are not an to mention the variable obscenity issue that unprotected category of speech, following would apply if the Court found that graphic our assumptions above). However, the safe violence is an unprotected category of harbor would not protect such games from speech. Time will tell.

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“Let’s Blast Video Violence”

The Globe and Mail February 20, 2004 Douglas Gentile

Snipers. Rape. Cars targeting pedestrians. five admitted that he had bought an M-rated Heads exploding in a shower of gore. game without parental knowledge.

These scenes can all be found in violent As the research evidence about the negative video games, and this month the Journal of effects of violent games become more Adolescence published several studies compelling, parents, educators, and policy- looking at their effects on youth. I was makers are increasingly concerned about involved in one study (Gentile, Lynch, what to do. From my perspective, there are Linder, & Walsh, 2004). After looking at three pillars of responsibility: the video- more than 600 Grade 8 and Grade 9 game industry, the rental and retail industry students, we found that playing a lot of and parents. violent video games was a serious risk factor linked with children’s anti-social and The video-game industry must clearly and aggressive behaviour—even after accurately label the content of games, so that controlling for the amount the children play, parents know what they are getting before their gender and whether they have naturally buying. Recently, the authors of a study of hostile personalities. Surprisingly, even the teen-rated games pointed out that there is a kids who are not naturally aggressive are “significant amount of content in T-rated almost 10 times more likely, if they play a video games that might surprise adolescent lot of violent video games, to get into players and their parents” (including violent physical fights than kids who do not. sexual themes and drug use). The second responsibility of the video-game industry is Our study is only one of about 40 peer- to market its products appropriately. Yet reviewed, published studies that demonstrate advertisements for M-rated games have that playing violent video games increases appeared in Sports Illustrated for Kids. It’s aggressive feelings and behaviours. These unfair of the industry to label games as “not games are not the Pac-Man and Pong of for kids” while marketing them to children. earlier generations; as technology has True, the industry has taken steps to reduce advanced, violent video games have become this, but there is still significant room for extremely graphic (in Grand Theft Auto: improvement. Vice City, a man encounters a prostitute, has sex and then beats her to death to get his The rental and retail industries also have money back). responsibilities. First, they must create policies under which children under 17 may Although such ultraviolent video games not buy or rent M-rated games without carry an M (mature) rating, a recent study by parental permission. Many stores, including the American Federal Trade Commission large chains and superstores, have no such found that children can buy them easily. In a policies. Some of those who do don’t separate study of nearly 800 Grade 4 to enforce them. In one sting operation Grade 8 kids, 87 per cent of boys reported conducted by the National Institute on that they play M-rated games, and one in Media and the Family, children as young as 26 seven encountered no problems in about half assigned by the TV networks, movie ratings of their attempts to buy M-rated games. by the Motion Picture Association of Parents should be able to expect that stores America, etc.) Legislation might also won’t allow children access to M-rated mandate the creation of an independent games—just as they expect movie theatres ratings-review board to do research on the won’t give children access to an R-rated validity of the ratings and maintain movie when parents drop them off at the standards. theatre. There have been legislative attempts to The third pillar of responsibility is parents— restrict the sale of M-rated games to minors who must start by educating themselves in the United States. This approach seems about the differences among video-game reasonable: The video-game industry itself ratings (“E” for everyone, “T” for teen, “M” acknowledges that these games are not for for mature) and to learn why it is important children (hence the M-rating), and legal to pay attention to the ratings. Here is where precedent in the United States has the research is so useful: Studies show that established that the government has an both amount and content matter. Children entirely appropriate role in limiting the who play a lot of video games get poorer influences and activities to which children grades in school. Children who play violent are exposed. games appear to become more aggressive over time. In my country, state and local authorities routinely restrict minors’ access to tobacco, Finally, parents need to act on their guns, pornography, and gambling. In fact, knowledge. Just as playing violent games is the U.S. Supreme Court, in Ginsberg v. New what scientists call a risk factor for negative York (1968), upheld limiting minors’ access outcomes for children, active parental to pornography on the basis of whether it involvement in children’s video-game habits was “rational for the legislature to find that acts as a protective factor. the minors’ exposure to [such] material might be harmful.” Should local, state, province or federal governments get involved? The research conducted to date has clearly met that test, and shows that, for some The video-game industry is responsive to children, exposure to violent media is some parental concerns and to pressure from harmful. Oddly, the video-game industry has politicians. Still, there probably are areas fought every legislative attempt to restrict where legislation could be helpful without the sale of M-rated games to minors. That is rising to the level of censorship. Just like the puzzling; it suggests that the industry is 1996 U.S. Telecommunications Act, which unwilling to stand behind its own ratings. mandated that TV shows be rated, new That fact alone makes it clear that parents legislation could require that the TV, movie, should be very cautious before they buy that and video-game industries create a universal next “hot” game for their child. rating system so that parents need not learn the full alphabet soup of different systems. Douglas A. Gentile is director of research at Legislation could also mandate that the the National Institute on Media and the ratings be administered independently of Family, and an assistant professor of each medium (currently, U.S. TV ratings are psychology at Iowa State University.

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“Effects of Violent Video Games”

Los Angeles Times May 3, 2010 Jill U. Adams

The U.S. Supreme Court agreed last week to violence in real-life situations. hear a case on California’s attempt to restrict sales of violent video games to minors. Both “When scholars are making some of the the California lawmakers who approved the claims that they make”—such as how law in 2005 and the U.S. 9th Circuit Court consistent and strong the evidence is or that of Appeals judges who overturned the law in the size of effects can be compared to the 2009 claimed that scientific research was on link between smoking and lung cancer— their side. “they are being deeply dishonest with the American public,” Ferguson says. Lawmakers and judges aren’t the only ones at odds over how to interpret research Given these polarized opinions, it’s not studies. Scientists who study media violence surprising that parents, especially those and its effects on children also are divided whose kids want to play the often violent on what their results mean. video games their friends are playing, struggle to sort out what to do. Here’s a “It’s a highly polarized research field,” says closer look at whether playing violent video Chris Ferguson, a psychology professor at games is putting America’s youth at risk. Texas A&M International University in Laredo. American children spend plenty of time in front of screens, be it playing video games A number of studies have shown that or watching television. One estimate says watching a lot of violence on television or kids are playing video games for 13 hours playing violent video games such as Grand each week, on average, and that more than Theft Auto and Manhunt produces 75% of teens who play report playing games aggressive tendencies in kids. Rowell rated M (for mature) by the Entertainment Huesmann, a professor of communications Software Rating Board, which often contain and psychology at the University of intense violence, blood and gore. Michigan in Ann Arbor, says that the strength of the evidence is on par with data Research has shown that immediately after that say smoking cigarettes causes lung playing a violent video game, kids can have cancer. aggressive thoughts, angry feelings and physiological effects such as increased heart Other researchers pooh-pooh such assertions rate and blood pressure. In addition, studies and say that scientific findings have been that survey large populations of kids on their decidedly mixed—with several studies game-playing habits and measure aggressive finding no effects of violent video games on personality traits or self-reported aggressive children and teens who play them. acts—physical fights, arguments with teachers—often find an association between In addition, such critics say, when effects games and aggression. are observed in studies, they have little or no relevance to psychological states that trigger And yet, even when a strong correlation is 28 found, researchers cannot say that playing researchers think the number is higher— violent video games causes such behavior. It Huesmann puts it at more like 10%. Neither could be that kids with aggressive number seems very high, but then everyone tendencies gravitate toward playing the most agrees that aggression is a complex human violent games. behavior that is going to have multiple causes. The most compelling studies are ones that track kids over a period of time. For “Usually when people are violent there’s a instance, a 2008 study published in the whole set of converging factors,” Huesmann journal Pediatrics followed 362 third-, says. “No reputable researcher that I know is fourth- and fifth-graders in the U.S. and arguing that media violence or video-game 1,231 youths ages 12 to 18 in Japan over a violence is the most important factor.” Other single school year. known factors more strongly linked to child aggression are a history of abuse, poverty, Early in the school year, kids were asked genetics and personality—and the risk about what games they played and for how climbs higher when several factors are many hours. The more violent content they present in combination. were exposed to, the more likely subjects were to report later in the year that they’d Still, Huesmann adds, “what’s really been in physical fights. irritating is when people say it isn’t a factor at all—because the evidence is so “Is that every kid? No, it’s not every kid,” compelling.” says study co-author Douglas Gentile, a psychology professor at Iowa State Ferguson, meanwhile, puts the strength of University in Ames. But the trend was the effect squarely at 0%. He says that statistically significant for both boys and people are inventing a crisis where there is girls, he says, and other studies that have none. lasted two years have found similar effects. “As video games have become more violent These so-called longitudinal studies start, at and more sophisticated and the sales of least, to address the what-comes-first video games have skyrocketed in the last problem, because they measure game- few decades, youth violence has playing first and assess aggressive behavior plummeted,” he says, citing evidence later. Still, the approach doesn’t solve the compiled by various federal agencies. problem completely. Ferguson—who is not the only scientist For instance, it can miss factors that critical of violent-video-game research but influence violent video game-playing and may be the most vocal—says some aggressive behavior—absent or abusive researchers cherry-pick data, measuring a lot parents, perhaps. of effects and analyzing only the ones that show a difference between kids who play It is also hard to assess the strength of any violent video games and those who don’t. video game aggression effect because Further, he says, some reviews of the exposure to violent games varies so much. scientific literature exclude studies that Gentile says violent video games account for show no effect or, in a few cases, an about 4% of the differences among kids in opposite effect (i.e., that consumers of terms of aggressive behavior. Some media violence showed less aggression). He 29 published a detailed critique of these issues of Pediatrics recommends that kids’ in the March issue of the journal exposure to screen time (meaning TV, Psychological Bulletin. video, computer and video games) be limited to one to two hours a day. And so, While researchers and legal types continue Gentile adds, is “setting limits on content, their row over violent video games, there are and talking to kids about what they’re seeing things parents can do, Gentile says. and hearing.

Setting limits on the amounts of exposure is “Challenge it and make kids think it through important, he says—the American Academy critically.”

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