Debate Forum Topic 11/10/10


On November 2, 2010 the United States Supreme Court heard the case of Schwarzenegger v. EMA, a case about a California law. The EMA (Entertainment Merchants Association) is asking the Court to determine whether or not a California law dealing with violent video games is unconstitutional. The specific California statute is designed to prevent violent video games from being sold to minors and also to require a 2 inch by 2 inch sticker be placed on each game labeled as violent that would read “18+”.  This label would be in addition to any ESRB rating on the game. The primary responsibility for enforcing compliance would fall on retailers, who could be fined as much as $1,000 per violation for noncompliance.

The EMA won the lower court decision. The court granted a preliminary injunction which prevented the legislation from ever going into effect. California then appealed the decision to the 9th Circuit Court of Appeals. At the appellate level, California lost the case again, so the legislation was still unenforceable. After this second loss, California appealed one final time to the Supreme Court.

The reason is tied to First Amendment protection of free speech. The government cannot usually regulate speech, but there are some narrow exceptions.  Obscenity, such as child pornography, is not considered speech and therefore is not protected. Still, these exceptions to the general rule are very narrow. To date, courts have looked at this type of state legislation as regulation of free speech. Specifically, the courts viewed it as a type of regulation referred to as a “content-based regulation.” The statutes are evaluating the content of the speech, game violence, and making a prohibition based on that content.

The statute reads as follows:

Violent video game means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following: (A) Comes within all of the following descriptions:(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors. (B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim. (Cal. Civ. Code § 1746(d)(1) (2009)).

The first half of the definition is nearly identical to the well known Supreme Court test for obscenity known as the  HYPERLINK “” Miller test. It is slightly modified by adding the element addressing minors, but this is clearly an effort to make the statute consistent with prior Court precedent.

The EMA argues that under the “strict scrutiny” test, the California statute must be found to be unconstitutional.  The rationale behind the test is that the Constitution prevents the government from regulating the content of speech except under the narrowest of circumstances, and that in this case the statute fails that test. To pass the test, a statute must: (1) “serve a compelling governmental interest,” and (2) be “narrowly tailored” to satisfy that interest.  The state statutes have been failing this test for two main reasons. First, proving compelling governmental interest is difficult because there is no solid data to support the claim that exposure to violent games harms adults or children. Certainly, some studies have indicated that harmful effects may be possible. However, those studies appear to be preliminary at best, and most are widely criticized by serious academia for a number of reasons, including flawed methodology or obvious political agendas.

Proponents of the California statute argue that the same compelling state interest that allows the protection of minors from pornographic materials, are present in protecting minors from exposure to the extremely violent video games that are on the market today.

Forum Question:

Should the Supreme Court rule that the California statute violates free speech and uphold the lower court decisions?

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