The US Supreme Court recently heard a case that bears on video games and the first amendment. I tend to come down very far on the side of protecting speech in general, and of considering video games to be a protected form of speech, so I have a strong ideological bias on this matter—in addition to my professional interest in the outcome of the case (neutered games will hurt innovation, which will hurt the value of the medium for serious applications like education). I therefore followed the oral arguments in the case, but I really don’t have the background to evaluate the legal merits.

Fortunately, my fabulous sister-in-law (Lawyer of the blog Nurse and Lawyer) has a brilliant legal mind and a passion for the Supreme Court in particular. She has kindly contributed her thoughts on the case, which are rendered in pink below. I’ve interspersed my own comments where appropriate.

Enjoy—and if you have an interest in either law or healthcare, make sure to check out Nurse and Lawyer.

Update: The law was struck down, putting video games on the same legal footing as any other constitutionally protected art form. From the majority opinion (ruling), written by Justice Scalia:

“Video games qualify for First Amendment protection… Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium.”

Scalia also pointed out the gap between games and the other great expressive media, however: “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.” I cannot argue with the man.

California passed a law—Cal. Civil Code Section 1746-1746.5—prohibiting the sale of violent video games to minors. The law itself is fairly interesting to read, and I think it would be interesting even for the non-legally inclined—take a look at the definitions at the beginning, if you have a chance!

As you might expect, those definitions are rather explicit. For example, part of the definition of “violent video game” requires that “the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being.” Further definitions are provided for “cruel,” “heinous,” “depraved,” “torture,” and “serious physical abuse.” Anyone who plays video games with a T rating—let alone an M—knows that these descriptors are frequently appropriate, or at least accurate, to describe video game violence. Another clause includes this gem:

Pertinent factors in determining whether a killing depicted in a video game is especially heinous, cruel, or depraved include infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victim’s body, and helplessness of the victim.

So, if they can fight back, and you stick the knife in just far enough to sever the spinal cord, then it’s OK… right?

The law does provide for exceptions in the case of violent games which possess “serious literary, artistic, political, or scientific value for minors”—or rather, it fails to provide exemptions for games in which the level of violence causes them to lack this kind of value. This is such a subjective provision that I shudder to think what that debate looks like in a courtroom, much less in a jury room. I’ve studied and written about the educational merit that exists in commercial games—yes, even the violent ones—and it’s not something that’s easy to explain. To really understand all of the ways that games have value, you need to understand games at a fairly deep level.

The question is: Are such restrictions permissible under the First Amendment?

The main argument against restriction is that we don’t allow laws restricting content in other media (movies, books, TV shows). Where there are restrictions, they are extremely narrow. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” These limitations on lawmaking now apply to states as well, under the Fourteenth Amendment.

So the short argument is that video games are no different, and should not be singled out for restriction.

Main argument in favor of restriction: The obscenity standard that we use to forbid the sale of pornography to minors, developed in Ginsberg v. New York, 390 U.S. 629 (1968), should be extended to apply here. The point of that exception to the First Amendment was to prevent harm to children, and violent games are just as harmful as obscene images—and the state found plenty of evidence that the games are harmful in considering and passing the legislation.

Where? What evidence? I have yet to see a study that convinces me that playing violent video games has any significant negative impact on the average teenager. As for younger children, there is already a very robust content rating system in place, the ESRB, which provides information and protections akin to what exists for film in the MPAA. In fact, the MPAA filed an amicus curiae (friend of the court) brief against the California law in this case. If parents choose to make their own decisions about the media that their children consume, whether online, in games, in movies or in books, that is their right.

So who’s going to win? Tough call. The Court held the case for a while, possibly awaiting resolution of U.S. v. Stevens (which struck down a federal law barring videos of cruelty to animals.) They then went ahead and took this case instead of sending it back to the lower court to reconsider in light of the new decision. That suggests that at least some justices thought this case was different, and/or disagreed with that decision and wanted to decide this one themselves instead of letting it fall into line.

One of the most contentious points seems to be about whether we as a society have reached some sort of consensus. Pornography and children don’t mix—we can agree on that. But we don’t agree about what is an acceptable level of violence to which minors may be exposed.

I know that “a reasonable person” and “prevailing standards in the community” are established criteria for evaluating the prurience of content, but I don’t like them. Those kinds of standards led to films being censored in the 1930s and comic books being censored in the 1950s. Looking back, should they have been? Why don’t we take that kind of historical experience into account when considering how to react to new forms of media?

I’m familiar with the argument that games are different because of the degree to which they are experiential. I haven’t researched this issue, so I can only respond to it anecdotally. As a passionate reader and a film buff, I don’t feel that I experience games more deeply or strongly than books or movies. I recently read Bret Easton Ellis’ American Psycho, and I found some of the passages in that book to be far more disturbing than anything I’ve ever played in a video game—and I played Manhunt.

The age-old conflict lives on here: original intent versus living constitution. (Should we ask what James Madison would’ve thought about violent video games, as Justice Alito suggested at oral argument, or should we try to adapt the document to our changed circumstances and think about its spirit and how it can best be carried out in this new context?)

Given the current court, I’d have a hard time believing that the law will stand
But… I guess you never know…

For more about the case, you can check out the SCOTUS blog, which links to resources ranging from plain English summaries of the case to amicus briefs filed by interested parties on both sides of the case (including ID Software, Activision, the MPAA and Microsoft).