Schwarzenegger/California vs. Entertainment Merchants AssociationCalifornia Governor Arnold Schwarzenegger signed California Assembly Bill 1179 into law on October 7, 2005, setting off a chain of events that eventually led to today’s oral arguments in front of the Supreme Court, which will ultimately decide whether the First Amendment can stop a state from prohibiting the sale of violent videogames to minors.
Two issues are at stake for the Court to decide: Do violent games for minors fall within a category of speech unprotected by the First Amendment and does California’s ban on the sale or rental of violent videogames to minors satisfy the strict scrutiny test applicable to content-based restrictions on speech?
You can get the transcript from todays oral argument
right here. And it starts off real well. Sorry for the wall of text, but its pretty awesome.
MR. MORAZZINI: Mr. Chief Justice, and may it please the Court: The California law at issue today before this Court differs from the New York law at issue in Ginsberg in only one respect. Where New York was concerned with minors' access to harmful sexual material outside the guidance of a parent, California is no less concerned with a minor's access to the deviant level of violence that is presented in a certain category of video games that can be no less harmful to the development of minors.
When this Court in Ginsberg crafted a rule of law that permits States to regulate a minor's access to such material outside the presence of a parent, it did so for two fundamental reasons that are equally applicable this morning in this case.
First, this rule permits parents' claim to authority in their own household to direct the upbringing and development of their children; and secondly, this rule promotes the State's independent interest in helping parents protect the wellbeing of children in those instances when parents cannot be present.
So this morning, California asks this Court to adopt a rule of law that permits States to restrict minors' ability to purchase deviant, violent video games that the legislature has determined can be harmful to the development -
JUSTICE SCALIA: What's a deviant -- a deviant, violent video game? As opposed to what? A normal violent video game?
MR. MORAZZINI: Yes, Your Honor. Deviant would be departing from established norms.
JUSTICE SCALIA: There are established norms of violence?
MR. MORAZZINI: Well, I think if we look back -
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? Why are video games special? Or does your principle extend to all deviant, violent material in whatever form?
MR. MORAZZINI: No, Your Honor. That's why I believe California incorporated the three prongs of the Miller standard. So it's not just deviant violence. It's not just patently offensive violence. It's violence that meets all three of the terms set forth in -
CHIEF JUSTICE ROBERTS: I think that misses Justice Ginsburg's question, which is: Why just video games? Why not movies, for example, as well?
MR. MORAZZINI: Sure, Your Honor. The California legislature was presented with substantial evidence that demonstrates that the interactive nature of violent -- of violent video games where the minor or the young adult is the aggressor, is the -- is the individual acting out this -- this obscene level of violence, if you will, is especially harmful to minors. It -
JUSTICE KAGAN: Well, do you actually have studies that show that video games are more harmful to minors than movies are?
MR. MORAZZINI: Well, in the record, Your Honor, I believe it's the Gentile and Gentile study regarding violent video games as exemplary teachers. The authors there note that video games are not only exemplary teachers of pro-social activities, but also exemplary teachers of aggression, which was the fundamental concern of the California legislature in enacting this statute. So while the science is continually
developing, indeed, it appears that studies are being released every month regarding -
JUSTICE KAGAN: Suppose a new study suggested that movies were just as violent. Then, presumably, California could regulate movies just as it could regulate video games?
MR. MORAZZINI: Well, Your Honor, there is scientific literature out there regarding the impact of violent media on children. In fact, for decades, the President, Congress, the FTC, parenting groups, have been uniquely concerned with the level of violent media available to minors that they have ready access to.
JUSTICE SOTOMAYOR: I don't think; is that answering Justice Kagan's question? One of the studies, the Anderson study, says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that
study, say we can outlaw Bugs Bunny?
MR. MORAZZINI: No -
JUSTICE SOTOMAYOR: There are people who would say that a cartoon has very little social value; it's entertainment, but not much else. This is entertainment. I'm not suggesting that I like this video, the one at issue that you provided the five-minute clip about. To me, it's not entertaining, but that's not the point. To some it may well be.
MR. MORAZZINI: Justice Sotomayor, cartoons do not depart from the established norms to a level of violence to which children have been historically exposed to. We believe the level of violence in these video games -
JUSTICE SCALIA: That same argument could have been made when movies first came out. They could have said, oh, we've had violence in Grimm's fairy tales, but we've never had it live on the screen. I mean, every time there's a new technology, you can make that argument.
I do believe that guy just got served. Then they move on to rap music lyrics and whether they should be regulated.
Also the video she judge mentioned, Ive heard its mostly footage of Postal 2. Its almost too obvious. But what if you tried to regulate movies using only footage of Saw?
