The big Schwarzenegger vs EMA case kicked off at the United States Supreme Court yesterday. Here's how it went.
The case opened with a healthy dose of scepticism from the Court as to whether or not the California law criminalizing the sale of violent video games to minors had merit. California Attorney General Zackery Morazzini started off with an explanation of the law and its intent to protect children from the negative effects of violent video games.
Justice Antonin Scalia pounced on that straightaway:
JUSTICE SCALIA: Some of the Grimm's fairy tales are quite grim, to tell you the truth.
MR. MORAZZINI: Agreed, Your Honor. But the level of violence -
JUSTICE SCALIA: Are they okay? Are you going to ban them, too?
MR. MORAZZINI: Not at all, Your Honor.
JUSTICE GINSBURG: What's the difference? I mean, if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm's fairy tales?
Additionally, Justices quizzed both presenting attorneys on alternatives to the law such as parental controls built into consoles (Morazzini points out they can be easily bypassed) or putting M-rated video games on the top shelves at retailers "out of the reach of children."
As sceptical as some of the Justices seemed to be, some of them did appear to find merit to the argument that violence in games is harmful to children. A few also didn't seem convinced that the $50 price tag on most games would deter minors from purchasing an M-rated game.
Here's a particularly harrowing line of argument attorney Paul Smith (arguing against the law) had to navigate during his arguments:
CHIEF JUSTICE ROBERTS: I know that cigarettes are not speech, Mr. Smith. Cigarettes are something that we have determined are harmful to children. The question is, you say the record doesn't support the idea that these video games are harmful to children. Some of us may conclude that it does.
MR. SMITH: Well, truly the record doesn't support it. The record says that if - even if you take the studies at face value, it is not one more whit less more harmful than watching television cartoons. That's what the record shows.
JUSTICE GINSBURG: But on that - on that score, Mr. Smith, there is a study by the FCC. The question is whether violence can be restricted during the hours when most children are awake, just the way pornography is. I don't remember what - what are the hours, that - something like from 10:00 in the evening?
I don't - but didn't the FCC say, yes, we could do the same thing for violence that we are doing for sex, except we don't think we ought to do it, we think Congress should do it?
MR. SMITH: What they did was they spent several years trying to come up with a definition that would allow anybody to figure out which violent TV shows have to be put into this violent adult category and which don't, and they eventually punted and said, we have no idea to do that; Congress asked us to do it; we cannot do it; and they punted it back to Congress to try to come up with a definition.
This is a very difficult task, trying to use language to differentiate levels of violence or types of violence in a manner that would in some way tell people what the rules of the game are. I think even if you think that there is some problem out there that needs to be solved, you ought to think very carefully about whether or not you are going to authorize some creation of a new rule authorizing regulation in this area, when nobody will have any idea what the scope of it is.
JUSTICE ALITO: And you say there is no problem because 16-year-olds in California never have $50 available to go buy a video game, and because they never have TVs in their room and their parents are always home watching what they -- they do with their video games, and the parents -- and the video games have features that allow parents to block access to -- to block the playing of violent video games, which can't be overcome by a computer-savvy California 16-year-old, that's why there is no problem, right?
MR. SMITH: I guess if what we are really going to do is judge the constitution of this law based on what 16- and 17-year-olds are getting and whether that would be harmful to them, I think the problem there is the line between 16 and 17 and 18 is so fine, that you are not going to be able to identify any real category of games that fits into that category. And it's important by the way to note that California hasn't told us whether we should judge 5-year-olds, 10-year-olds, 17-year-olds. If it's 5-year-olds, it's vastly over-restrictive; if it's 17-year-olds I suspect - I suspect it wouldn't restrict anything because nobody is going to be able to convince a - jury, well, this is an 18-year-old game, not a 17-year-old game.
CHIEF JUSTICE ROBERTS: We draw that kind of line of course in the death penalty area, don't we? Between 18-year-olds? You are under 18; you can't be sentenced to life without parole; if you were over 18 you can.
MR. SMITH: You do draw that line, Your Honor.
It doesn't look like a lot of people turned up to the Entertainment Consumers Association rally outside the Supreme Court.
Supreme Court clerks play Mortal Kombat:
JUSTICE KAGAN: You think Mortal Combat [sic] is prohibited by this statute?
MR. MORAZZINI: I believe it's a candidate, Your Honor, but I haven't played the game and been exposed to it sufficiently to judge for myself.
JUSTICE KAGAN: It's a candidate, meaning, yes, a reasonable jury could find that Mortal Combat [sic], which is an iconic game, which I am sure half of the clerks who work for us spend considerable amounts of time in their adolescence playing.
JUSTICE SCALIA: I don't know what she's talk about.
Justice Sonia Sotomayor totally gets respawning:
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.
You can read the entire transcript of the hour-long hearing here. The next step for the case is a decision from the Supreme Court sometime before summer. If they strike down the Ninth Circuit Court of Appeals ruling that the law violates the First Amendment, California's law becomes US law. If they uphold the ruling, nothing happens and games win their First Amendment protection at the federal level.