The Supreme Court Weighs In On Violent Video Games

Posted: July 17th, 2011 under Opinion.

The verdict is in video games favor 7-2, personally I think the big win is that video games were not gerrymandered or segregated into its own entity needing unique rules. Video games and other digital interactive entertainment bear the same rights and responsibilities as music, plays, movies, and books.

“Like the protected books, plays, and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.” – Justice Scalia

Gamasutra actually did quite an impressive job of covering this story (Schwarzenegger v. EMA, Supreme Court Ruling, Dissenters’ Opinion, Justice Samuel Alito’s Uncertainty, Justice Antonin Scalia’s Opinion, and the triumphant Video Games Qualify for First Amendment Protection), and in particular their compilation of highlights listed here, extracted from the complete unedited 92 page ruling:

“Would you get rid of rap music? Have you heard some of the lyrics of some of the rap music, some of the original violent songs that have been sung about killing people and about other violence directed to them? Why isn’t that obscene in the sense that you’re using the word – or deviant?” – Justice Sonia Sotomayor

“What’s next after violence? Drinking? Smoking? Will movies that feature scenes of smoking affect children? … Movies that show smoking can’t be shown to children? Will that affect them? Of course, I suppose it will. But are we to sit day by day to decide what else will be made an exception from the First Amendment? Why is this particular exception okay, but the other ones that I just suggested are not okay?” – Justice Antonin Scalia

“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?” – Justice Ruth Bader Ginsberg

“For generations, there has been a societal consensus about sexual material. Sex and violence have both been around a long time, but there is a societal consensus about what’s offensive for sexual material and there are judicial discussions on it. … But you are asking us to go into an entirely new area where there is no consensus, no judicial opinions.” – Justice Anthony Kennedy

“What’s a deviant – a deviant, violent video game? As opposed to what? A normal violent video game?” – Justice Scalia

(Morazzini, incidentally, answered yes to this question, clarifying that deviant would be departing from the social norms. Scalia quickly asked “There are established norms of violence!? … Some of the Grimm’s fairy tales are quite grim, to tell you the truth. Are they ok, are you going to ban them too?”)

“One of the studies … says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video [game]. So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?” – Justice Sotomayor

I am the farthest thing from a legal expert, but what I was able to glean from the official ruling. The original California law had a couple of problems. Its attempt to bolster its necessity, with claims that violent video games – compared to violence in other mediums – were specifically more psychologically damaging to minors, was pretty flimsy:

“Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media.”

Second, which is why I thought it was a big win that games have become considered an equal with other media, you can not single out one specific art form. Everyone can portray violence without regulation or none of us can:

“Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly under inclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint,…”

There was also some discord of the presented desire for such a law to exist, how great the need for such legislation is, honestly I do not totally understand why this was important to the ruling or part of the law but I thought that Justice Scalia summed up this part of the ruling in fairly plain language:

“Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want.”

Lastly, the original California law failed to really define violent and excessively violent. I admit that it feels very bizarre draw the line between sexuality which is heavily regulated and violence which isn’t. We can depict dismembering a girl but heaven forbid she also is topless, that is just *uncivilized*. However, sexuality and nudity seem to have a pretty clear definition. I’m not sure I can define excessively violent, or even violent, it is one of those much more blurry ‘I know it when I see it’ kinds of things. I think everyone can agree that you can’t just leave it open for interpretation. Can you imagine the legal storm from EA sports if video games for Hockey and Football were deemed worthy of violence restrictions?

We have won, for now. Upset people who strongly believe they are right rarely just go away. They will come back with better laws and more studies, the fight is not over. While some of the Justices voted in games favor to mark the California law in violation of the first amendment, there were reservations. Do video games affect us; in particular do violent video games inspire violent actions (in whole or in part)? Are all forms of media bombarding us with too much violence, and is too much directed at children? While games feel more ‘real’ than the other mediums I don’t believe we have any more effect over someone’s real life actions than books and movies, which is a powerful statement because I think books and movies can be pretty influential, and so I think if we want to put restrictions on games we would also need to take a hard look at other mediums. I think the concept of games turning youths into brainwashed desensitized zombies is a farce, on a very deep level we understand the differences between play and reality. Playing is not unique to our species and MIT Professor Henry Jenkins talks about how even primates display cognitive changes between play fighting and reality. Yes, we do use games to train soldiers, and I am sure as this one of hundreds of articles points out that can be more than a little unsettling. Violence predates video games, in humanities existence there has always been a need for hunters and soldiers, and I would argue that it is ingrained into our psyche. Violence actually transcends species and extends past antiquity. I wouldn’t say that we need or lust for violence, but if it suddenly disappeared from our lives, and we suddenly have nothing to do with what thousands of years of evolution prepared us for, we would definitely feel something was missing from our lives. Our entertainment is a reflection of our culture and values; it isn’t a one way street with some mastermind stoically spreading their influence. If we do not like what we see in the mirror, we should take a hard look at ourselves.

Another cause for reservation was the ESRB (Entertainment Software Rating Board) system. The video game industry voluntarily polices its own content, and retailers voluntarily enforce it. There is only the threat of having to deal with a regulatory federal government body in the ESRB’s absence keeping it in existence. It is actually not the least bit illegal to sell mature content games to minors, amoral yes, but not illegal. I was actually surprised that this was commented on by the Justices. This is the exact same style of system in place for movies, we modeled ours after theirs. Go check out the MPAA (Motion Picture Association of America) site, they even look practically identical. Similarly, there is nothing illegal about selling a child a ticket for an R rated movie without their parents consent, the self-governing body might act on you if they find out, but you are not breaking any laws.

It will be interesting to see how the old store clerk / voluntary rating system rules apply when there is no clerk and no immediate transaction. With increased digital distribution, free to play games where there are no initial transactions, does the American legal system have any hope of keeping up the pace with how we get our content to our customers? I’m still a big fan of buying the boxes and owning the CDs and cartridges, it feels more like I actually own and bought something. However, I think it will not be long before game distribution is purely digital where its either an online store that ships you a box, or go the ways of digital download (if you are not aware, physical stores actually rent games shelf space and charge us extra for coveted display space). Then there is no one really ‘selling’ you the game, verifying your age, and checking your id. All you would need is *someone’s* credit card linked to an account somewhere, assuming the games business model wants to charge you right away, I have a feeling more and more games will not.

Some of these people have a right to be upset too; there is some really disturbingly ugly stuff out there. While concurring with the majority decision, Justice Samuel Alito also comments on everyone’s growing concern:

“…In some of these games, the violence is astounding. Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed.”

“It also appears that there is no antisocial theme too base for some in the video game industry to exploit. There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech. The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women. There is a game in which players engage in ‘ethnic cleansing’ and can choose to gun down African-Americans, Latinos, or Jews. In still another game, players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.”

“If the technological characteristics of the sophisticated games that are likely to be available in the near future are combined with the characteristics of the most violent games already marketed, the result will be games that allow troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence.”

I don’t want this material in the hands of children, but those are my beliefs, if someone wants their child to have it – despite whatever my thoughts are – they can do that, that is what freedom and America are all about. Children are entitled to free speech too. I totally agree that parents should be able to feel some control over what their kids get their hands on, but if the parents are totally scared of technology or make no effort on the child’s behalf they are just as much at fault. I can vouch that after watching the rating system at work for a major title trying to get an E (everyone) rating, they do a good job and take their work very seriously. If you decide to let the technology into your home environment you better be prepared to monitor it, just like you would with internet and television.

I talked in-depth about these issues surrounding games in another post, some lessons are naturally violent. While I wouldn’t want children to be exposed to over the top gritty, gore, and gruesome carnage; when I think they could handle it I would totally want them to gain a deep understanding of things like the Holocaust, the Israel Palestine conflict, what America did to the Native American people. Those are very visceral ugly things, but they shape our morals. I remember when 9-11 happened how resolute we were that “we will never forget”. If you try to lock all of the evil things up in a box to protect our children from them, we actually make them more vulnerable, because they won’t recognize evil when it surfaces again. You have to take the good with the bad, if you ban the games going for shock value, you also ban these games that stand to teach us something.

It is kind of sad to see these games that are all shock and no substance, like people sat in a room and agreed, funded, and took the time to build *this*? Sure we can look at how technology has grown and how you don’t necessarily need publishers or distributors, you don’t need to meet Wal-Mart and other retailers content standards, and it is getting easier to build and push something onto the internet without all of those other people getting involved (for better or worse).

I guess there is some incentive to receive some instant media buzz and free publicity for ‘pushing the envelope’ or whatever is going on in their heads, professionally when you go for that response with no gameplay to back it up it just shows a lack of creativity and design skill. I regard most of these game as novelties personally, a toy that might be good for a couple laughs before I lose interest, almost always accompanied with buyer’s remorse. It is just a cheap route to go, did you just completely run out of ideas to make an experience compelling? I’m not saying that all gore and violence is bad, or it doesn’t have an appropriate place in certain genres. My point is that if your game can’t stand toe to toe with the rest of the industry when you remove the gore and brutality – you need to reconsider what your game is really about. It is not one of those things that can magically save a title; done wrong I actually think it hurts more than it could help.

I admit there are times when I want to go and wreak some havoc when I play games. I played Mortal Combat back when it was only in the arcades, Goldeneye 007 on Nintendo 64, Battlefield 1942 for PC, Resident Evil 4 on Game Cube, and a long history of other titles. I am not necessarily against violence in games. I actually think I found taking a break to make some headshots between college classes cathartic and stress relieving. I’m more fond of visceral content when it’s emanating from zombies, orcs, or robots. However, I’m an adult, and that is what content I chose to consume. No one is talking about limiting content for adults, as long as we can smoke, drink, own firearms, hire prostitutes or gamble in select places, and be drafted into wars I think violent games will have an audience.

Can we, as a community, agree to not give those attempting to curtail our rights more ammunition? The last thing I want to discover one morning is that someone built “Date Rape Ninja” for Xbox Kinect where dose a victim and perpetrate rape ‘with your body as the controller’, or “Meth Lab Momma” on the Wii where you mix, cook, and inject your customers using ‘realistic Wii remote motions’. As game technology continues to grow and become even more immersive and realistic we will continue to come under fire. Just because you can do something, it doesn’t give you the right to, and don’t let yourself get so caught up with if you can build something, that you don’t stop to think about if you should.

Thanks for reading, and remember, we are all in this together.

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