Schwarzenegger v. Entertainment Merchants Association
Encyclopedia
Brown v. Entertainment Merchants Association (formerly titled as Schwarzenegger v. Entertainment Merchants Association) is a landmark Supreme Court of the United States
case that struck down a California
law enacted in 2005 that bans the sale of certain violent video games to children without parental supervision. In a 7-2 decision, the Court upheld the lower court decisions and revoked the law, ruling that video games were protected speech under the First Amendment
as other forms of media.
California Senator Leland Yee
introduced the original law in 2005, believing a connection between violent video games and aggressive behavior in children, and sought to regulate the voluntary video game industry ratings review system, the Entertainment Software Rating Board
. Though similar laws were passed in other States, they were challenged by video game industry groups like the Entertainment Software Association
, and defeated in lower courts. The California law was similarly blocked and ruled unconstitutional in lower courts, but then-California Governor Arnold Schwarzenegger
continued to take the case to the Supreme Court in 2009, which the Court accepted. Oral arguments were heard in November 2010, with the decision announced in June 2011.
Though the ruling was seen as a victory for the video game industry to classify their products as protected works as with films, books, and television, both concurring and dissenting opinions from the Court suggested that the issue may need to be re-examined in future case law, considering the disparate community standards treatment of violence compared to pornography, and the changing nature of video games with continually improving technology. Some video game analysts have seen the Court's decision as a wake-up call for the industry to mature in light of the Court's opinions. Senator Yee and other state lawmakers have stated they will continue to seek a means to regulate video game sales to minors within the context of the Court's decision.
, incorporate some aspect of violence into the gameplay mechanic, such as killing an enemy with a weapon, using explosives to destroy a structure, or engaging in dangerous vehicle races. With modern technology, representations of such violence have become more realistic. This has led to concerns that minors that play such video games will become influenced by the violence, altering their real-life behavior. Academic studies have attempted to find a connection between violent video games and the rate of violence and crimes from those that play them; some have stated a connection exists, while others find no link between the matters. Incidents such as the Columbine High School massacre
in 1999 have heightened concerns of a potential connection between video games and violent actions. As such, many concerned groups including politicians and parents have sought to enact regulatory controls of video games to prevent their sales to youth. Prior and during the Brown v. case, parties like the Entertainment Software Association
(ESA) sought to overturn similar state laws that placed limits on the sales of violent video games to minors in Michigan and Illinois. The ESA won these cases, with the laws being found unconstitutional and overly restrictive of protected speech. These states did not further challenge the court rulings. The ESA similarly defeated a Louisiana bill in the 2006 Entertainment Software Association v. Foti
case that would have attempted to ban sales of violent video games from minors.
To counteract these increasing complaints and attempts at legislation, the video game industry in the United States created the Entertainment Software Rating Board
(ESRB) in 1994. The ESRB, like the Motion Picture Association of America
's rating system, is a voluntary and self-regulated body that examines the content of video games as provided by the publisher before distribution, and given a rating describing the content within, generally classified from being all ages-appropriate to adult audiences only. Video game distributors are similar bound by voluntary compliance to check the age of the purchaser against the rating of the game to prevent the sale of mature titles to younger players. Most stores prevent the sale of unrated games, and as such, virtually every video game sold at retail in the United States is rated by the ESRB. Attempts have been made to mandate the ratings system; the Family Entertainment Protection Act
, a 2005 bill introduced into the U.S. Congress by Senators Hillary Clinton, Joseph Lieberman, and Evan Bayh
, would have made ESRB participation mandatory with oversight by the Federal Trade Commission, and introduced fines for selling Mature or Adult-Only content to minors. The bill, however, did not clear the Senate. Though the ESRB met criticism in 2000-2005 for the ease of access of mature-rated games to minors, the Board has improved its efforts to enforce the ratings system at retailers. A 2011 report issued by the Federal Trade Commission
found that the voluntary controls by the ESRB had the highest success rate of any other media industry, preventing sales of mature titles to minors 87% of the time. Similar content rating systems exist in other countries, including the British Board of Film Classification
, the Australian Classification Board
, and Japan's Computer Entertainment Rating Organization
.
passed AB 1179, sponsored by California State Senator Leland Yee
, which banned the sale of violent video games to anyone under age 18 and required clear labeling beyond the existing ESRB rating system. The law would have a maximum $1000 fine for each infraction. The definition of "violent video game" used a variation of the Miller test
, a three-pronged test used previously by the United States Supreme Court to define when speech is not protected under the First Amendment
. The bill was signed into law by Gov. Schwarzenegger in October 2005. The law would have gone into effect in January 2006.
The law was a second attempt by Senator Yee to enact restrictions for video game sales to minors. Yee's background as a child psychologist led him to assert there was a connection between video games and violence and believed that the government had strong interest in restricting video game sales to minors as was already done for pornographic works. In 2004, Yee had drafted a law that would have required mature-rated video games to be stocked separately from other titles. Though the bill ultimately passed as CA Law AB 1793
, the bill's language was diluted at its passage, only requiring stores to display the ESRB ratings system and provide information to parents about it.
(EMA), were preparing a lawsuit to overturn the law, fearing that the "violent video game" definition would affect many titles that the ESRB has otherwise labeled appropriate for younger players, and threaten to harm the video game industry. The VSDA filed suit in the United States District Court for the Northern District of California
and was later joined by the ESA. The two groups succeeded in obtaining a preliminary injunction in December 2005 to block enforcement of the law during the case; U.S. District Judge Ronald M. Whyte
cited in his preliminary decision: "The plaintiffs have shown at least that serious questions are raised concerning the States' ability to restrict minors' First Amendment rights in connection with exposure to violent video games, including the question of whether there is a causal connection between access to such games and psychological or other harm to children." In August 2007, Whyte ultimately ruled for the plaintiffs, holding that the law violated the First Amendment, and that there was an insufficient showing of proof that either video games differed from other media or that there was established causality between violent video games and violent behavior.
appealed the ruling in September 2007, stating that he would "vigorously defend this law" and that he and the people of California have "a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions." The Ninth Circuit Court of Appeals
affirmed Whyte's decision in 2009.
The Ninth Circuit considered the constitutionality of the law; given the timeframe of the law's passing relative to litigation, it was referred to as the "Act" in the court's opinion. The Ninth Circuit affirmed the District Court's Summary Judgment for the VSDA by holding:
The court first addressed the VSDA's argument that the entire Act should be invalidated based on the defendant's concession on appeal that the definition of "violent video game" in the Act is unconstitutionally broad. However, the statute had a severability clause so the court went through the severability test set forth in Hotel Employees & Rest. Employees Int'l Union v. Davis. The court held that the definition for "violent video game" is grammatically and functionally separable because, as an alternative definition of "violent video game," it can be removed from the Act without affecting the wording or function of the Act's other provisions. Further, the definitions are volitionally separable because those sections were not of critical importance to the passage of the Act and the legislative body would have adopted the Act had it foreseen the partial invalidation of the statute. These definition sections were only included to avoid the possibility that a court would rule the terms unconstitutionally vague; the court found that the legislature would still have enacted the statute without this definition section.
The court next went on to determine what level of scrutiny should be applied in reviewing the Act's prohibitions. The defendants insisted that the "variable obscenity" standard from Ginsberg v. New York should be used. However, the court held that the "variable obscenity" standard does not apply to violence. The Court in Ginsberg was careful to place substantive limits on its holding, and concern in Ginsberg regarded only "sex material," not violence. The court declined to extend the application of the "variable obscenity" standard to violence, so strict scrutiny was applied instead.
In applying the strict scrutiny standard, the court recognized that "content-based regulations are presumptively invalid," and to survive invalidation, the Act had to fulfill two qualifications:
The court invalidated the statute on both accounts. First, the court said that in considering its decision, the court limited the purpose of the Act to the actual harm to the brain of a child playing a violent video game. As a result, the state was required to show that "the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Here, the defendants failed to do so because all of the reports they relied on in making these claims were admittedly flawed. While the state is allowed to protect minors from actual psychological or neurological harm, it is not permitted to control minors' thoughts. Second, the court held that the defendants did not demonstrate the absence of less restrictive alternative means. In fact, video games already comply with a voluntary rating system that rates video games based on their topics and age appropriateness. This is a clear example of a less restrictive means. The court noted that the least restrictive means is not the same as the most effective means.
The court also evaluated the constitutionality of the Act's labeling provision, which requires that a label be affixed to the front of every package the state deems to be a "violent video game." Generally, "freedom of speech prohibits the government from telling people what they must say." However, the court has upheld compelled commercial speech where it is the inclusion of "purely factual and uncontroversial information" in advertising. However, the labeling requirement of "violent video game" is not factual information. The Act has not clearly and legally provided a way to determine if a video game is violent so the sticker does not convey factual information. Consequently the court found that the Act is unconstitutional.
Gov. Schwarzenegger again appealed to the Supreme Court, looking to overturn the Ninth Circuit's ruling, filing a writ of certiorari
to the Court in May 2009. The Supreme Court agreed to hear the case. The fact that the Court accepted this case was considered surprising, based on the previous case record for such violent video game laws that were unanimously overturned in other states. Analysts believe that because the Court agreed to hear this case, there are unanswered questions between the protection of free speech from the First Amendment, and the legal enforcement of protecting minors from unprotected free speech such as through restrictions on the sales of pornography to minors. Just a week prior to the acceptance of the centiorari, in United States v. Stevens
the Court overturned another law that sought restrictions on depictions of animal cruelty, which some analysts felt would reflect the Court's position to likely overturn the violent video game law.
The Entertainment Consumers Association (ECA) launched an online petition along with their amicus brief to provide the Supreme Court additional information. The Progress & Freedom Foundation and the Electronic Frontier Foundation
together submitted an amicus brief citing social research that declared Super Mario Bros.
to be a violent video game. It was compared to Mighty Mouse
and Road Runner
, cartoons that depict a similar form of violence with little negative reaction from the public. Video game developers Microsoft
and Activision Blizzard
supported the ESA effort. Industry associations for musical works, movies, and publishing, including the National Association of Broadcasters
, the Motion Picture Association of America
, Recording Industry Association of America
, National Cable & Telecommunications Association
, and the Future of Music Coalition
, also submitted briefs to the court in favor of striking down the law, fearing that should the law found to be constitutional, their industries would also be affected. Associations for the protection of civil rights, including the American Civil Liberties Union
, the National Coalition Against Censorship
, and the National Youth Rights Association
, submitted amicus briefs. Also filing amicus briefs against the State of California was a coalition of other states including Rhode Island, Arkansas, Georgia, Nebraska, North Dakota, Oklahoma, South Carolina, Utah and Washington, as well as Puerto Rico, which stated the law was unnecessary as no evidence linked video games to youth violence and the voluntary ESRB system was working well. Also submitting an amicus brief opposing the law was a coalition of 82 psychologists, criminologists, medical scientists and media researchers concerned that the State of California had misrepresented the science on video games.
The State of California was joined by eleven other States, including those that had passed laws later declared unconstitutional; the States, in an amicus brief, stated that they are "vitally interested in protecting the welfare of children and in helping parents raise them" but the District Court's decision restricts their authority to do so. Further supporting the State of California were the American Academy of Pediatrics
, the California Psychological Association, Common Sense Media
, and the Eagle Forum
.
Oral argument
s were held on November 2, 2010. To California's attorney, the Justices voiced concern on the distinction between video games and other commercial works such as films and comic books. Justice Antonin Scalia
wondered if the law with its vague definition of "violence" could also be applied to Grimm's Fairy Tales
. To the ESA and other trade groups, the Justices suggested that California and other states do have precedence to protect minors from certain forms of violence, though under narrower terms than the California law. Justice John G. Roberts Jr. argued that while companies can provide parental filters on such violent games, "any 13-year-old can bypass [them] in about five minutes." Several questions centered on the controversial game Postal 2
, where the player can urinate on non-player characters and set them ablaze, among other violent acts. The Justices, in general, agreed that upholding California's law would require a "novel extension of First Amendment principles to expressions concerning violence."
On June 27, 2011, the Supreme Court issued a 7-2 opinion striking the California law as unconstitutional on the basis of the First and Fourteenth Amendments. The majority opinion was authored by Justice Antonin Scalia and joined by Justices Ginsburg, Kennedy, Sotomayor, and Kagan. It first held that "video games qualify for First Amendment protection": Justice Scalia then affirmed that, while states may pass laws to block obscene material from minors as previously decided in the 1968 Ginsberg v. New York
case, "speech about violence is not obscene," and California's statute was unlawful. The decision pointed to fairy tales like those of the Brothers Grimm
, which are regularly given to children to read, "contain no shortage of gore" that are also present in video games. The decision further compared video games to classical works like The Divine Comedy
, stating that "Even if we can see in them nothing of any possible value to society[...], they are as much entitled to the protection of free speech as the best of literature." Scalia's decision also stated that the current self-moderated industry standards like the ESRB are operated effectively to regulate the sale of more mature games to minors, and that "filling the remaining modest gap in concerned-parents' control can hardly be a compelling state interest" requiring a law to enforce. The Court's decision also determined that from the evidence, there was no "compelling" link between violent video games and its effects on children. The decision cited one medical report that asserted that cartoons like Looney Tunes
generate the same effects in children as in games like Sonic the Hedgehog or imagery of guns.
wrote a separate concurrence
supporting the majority decision, and was joined by Chief Justice John G. Roberts. Though Alito agreed with the constitutional application to the California law, believing that its "threshold requirement" that guides what material would be covered by the law was too broad, he questioned the potential double standard
that existed between violence and sexual content in regards to this threshold. Alito wrote that he was unsure that there was no connection between violent video games and effects on children, stating that "There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show," referencing the book Infinite Reality which highlights the psychological effects of virtual reality, and argued that the decision "would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem."
and Stephen Breyer
dissented, each authoring a separate dissent. Justice Thomas, in his dissent, considered that historically, the Founding Fathers "believed parents to have complete authority over their minor children and expected parents to direct the development of those children," and that the intent of the First Amendment "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians."
Breyer wrote separately, concerned that the majority's decision conflicts with previous rulings from Ginsberg and Miller. He contrasted the previous findings regulating sales of publications containing nudity to those of violent video games: "But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13 year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?" Breyer further argued that "This case is ultimately less about censorship than it is about education," believing that the Government has a vested interesting in allowing parents to make decisions for their child as to "raise future generations committed cooperatively to making our system of government work," and that "California's law imposes no more than a modest restriction on expression." Breyer also expressed concern that the self-regulation of the industry still allowed for 20% of minors to purchase mature video games on a national average, and as high as 50% in the case of one nationwide chain, based on the aforementioned 2011 Federal Trade Commission
study.
asserted that the decision "affirmed the constitutional rights of game developers." Other entertainment industries, such as the Motion Picture Association of America, also showed support for the Court's decision. Former U.S. Senator and current head of the Association Chris Dodd recognized that the motion picture industry has seen similar attempts to limit its freedom of expression, and that "We applaud the Supreme Court for recognizing the far-reaching First-Amendment implications posed by the California law."
Groups that supported the California law were critical of the decision. California State Senator Leland Yee was very critical of the decision, claiming that "It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children." Yee stated he would review the opinions and attempt to reintroduce a new bill within the constitutionality of the decision, and claimed it was "disappointing the court didn't understand just how violent these games are." James Steyer of Common Sense Media
also criticized the decision, citing that "If parents decide a violent game is okay for their kid, that's one thing, but millions of kids are not able to judge the impact of ultra-violence on their own." Andy Schlafly
, who had submitted a brief to the court on behalf of the Eagle Forum and Legal Defense Fund, heavily criticized the majority opinion, believing that "the court's latest disregard of parental rights is on a crash course with technological advances." Tim Winter of the Parents Television Council
asserted that the Court's decision "replaces the authority of parents with the economic interests of the video game industry." The Washington Post opined that the California law "did nothing to infringe on the rights of adults" while dealing with "reasonable limitations on minors’ access to extremely violent games that even the video game industry acknowledges are inappropriate," and that with the high bar for any future legislation, the onus is on the video game industry to maintain its self-policing of video game sales.
Analysts believed that while this was a major victory for the video game industry, the challenge is not yet over. Dan Offner, a partner for the video game industry analysis firm Loeb & Loeb believed that similar laws and regulations will be sought by State and Federal governments, as "the regulation of mature content with respect to minors as a hot button issue for the Federal Trade Commission and the various state governments." Other analysts cited that as more game content becomes available online as opposed to retail channels, the focus may shift more towards "privacy and security" of children and preventing children from amassing large fees from pay-to-use gaming services, pointing to a $3 million settlement that Playdom
had to pay for violating privacy of its younger users. Sean Bersell of the EMA noted that future debates over violent video games may involve public opinion in addition to new legislation, noting that "Retailers along with publishers and parents all have a role in keeping kids away from these games." Seth Schiesel of the New York Times proposed that the Court's decision should be a challenge to the industry to show that they can mature on the decision that video games are a form of art
, questioning the industry "Will you use it as cover to pump out schlock or will you rise to the opportunity and respectability that has been afforded you?" Schiesel also considered that games that are more interactive may help players to become more aware of the consequences of their actions.
’s PublicMind showed that a majority of American voters (57%) agreed that the states should have the “right to regulate the sale of video games [that are violent] in order to protect minors; the same way states regulate tobacco, alcohol and pornography.” On the other hand, 39% of voters agreed with the Court’s majority that “parents should make the decision” about what video games they purchase for their children, and what constitutes “too violent.” These voters agreed with the statement “states do not have the right to decide that some video games are too violent for [minors], any more than they have the right to decide what literature or fairy tales are too violent.” The poll was conducted before the Court released its decision on June 27, 2011.
Demographic breakouts demonstrated that men were more likely than women to agree that the supervision of minors’ video purchases should be left to parents, and not be regulated by the states. In addition, younger voters were far more likely than older voters to say the states should not have the right to decide what is “too violent for kids.”
Bruce Peabody, professor of political science at Fairleigh Dickinson University and editor of the book The Politics of Judicial Independence: Courts, Politics, and the Public., responded to the poll results and the Court’s decision by noting that "under Chief Justice Roberts, the Court has been especially protective of the First Amendment" but he also said "these results put the Court on a potential collision course with the public."
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case that struck down a California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
law enacted in 2005 that bans the sale of certain violent video games to children without parental supervision. In a 7-2 decision, the Court upheld the lower court decisions and revoked the law, ruling that video games were protected speech under the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
as other forms of media.
California Senator Leland Yee
Leland Yee
Leland Yee is a California State Senator in District 8 which represents the western half of San Francisco and most of San Mateo County. Prior to becoming state senator, Yee was a California State Assemblyman, Supervisor of San Francisco's Sunset District, and was a member and President of the San...
introduced the original law in 2005, believing a connection between violent video games and aggressive behavior in children, and sought to regulate the voluntary video game industry ratings review system, the Entertainment Software Rating Board
Entertainment Software Rating Board
The Entertainment Software Rating Board is a self-regulatory organization that assigns age and content ratings, enforces industry-adopted advertising guidelines, and ensures responsible online privacy principles for computer and video games as well as entertainment software in Canada, Mexico and...
. Though similar laws were passed in other States, they were challenged by video game industry groups like the Entertainment Software Association
Entertainment Software Association
The Entertainment Software Association is the trade association of the video game industry in the United States. It was formed in April 1994 as the Interactive Digital Software Association and renamed on July 16, 2003...
, and defeated in lower courts. The California law was similarly blocked and ruled unconstitutional in lower courts, but then-California Governor Arnold Schwarzenegger
Arnold Schwarzenegger
Arnold Alois Schwarzenegger is an Austrian-American former professional bodybuilder, actor, businessman, investor, and politician. Schwarzenegger served as the 38th Governor of California from 2003 until 2011....
continued to take the case to the Supreme Court in 2009, which the Court accepted. Oral arguments were heard in November 2010, with the decision announced in June 2011.
Though the ruling was seen as a victory for the video game industry to classify their products as protected works as with films, books, and television, both concurring and dissenting opinions from the Court suggested that the issue may need to be re-examined in future case law, considering the disparate community standards treatment of violence compared to pornography, and the changing nature of video games with continually improving technology. Some video game analysts have seen the Court's decision as a wake-up call for the industry to mature in light of the Court's opinions. Senator Yee and other state lawmakers have stated they will continue to seek a means to regulate video game sales to minors within the context of the Court's decision.
Background
Many video games, as early as 1976's Death RaceDeath Race (1976 game)
Death Race is a controversial arcade game, released by Exidy in 1976. While not the first violent video game to appear, it was the first video game to inspire a great deal of protest and controversy in the United States.-Overview:...
, incorporate some aspect of violence into the gameplay mechanic, such as killing an enemy with a weapon, using explosives to destroy a structure, or engaging in dangerous vehicle races. With modern technology, representations of such violence have become more realistic. This has led to concerns that minors that play such video games will become influenced by the violence, altering their real-life behavior. Academic studies have attempted to find a connection between violent video games and the rate of violence and crimes from those that play them; some have stated a connection exists, while others find no link between the matters. Incidents such as the Columbine High School massacre
Columbine High School massacre
The Columbine High School massacre occurred on Tuesday, April 20, 1999, at Columbine High School in Columbine, an unincorporated area of Jefferson County, Colorado, United States, near Denver and Littleton. Two senior students, Eric Harris and Dylan Klebold, embarked on a massacre, killing 12...
in 1999 have heightened concerns of a potential connection between video games and violent actions. As such, many concerned groups including politicians and parents have sought to enact regulatory controls of video games to prevent their sales to youth. Prior and during the Brown v. case, parties like the Entertainment Software Association
Entertainment Software Association
The Entertainment Software Association is the trade association of the video game industry in the United States. It was formed in April 1994 as the Interactive Digital Software Association and renamed on July 16, 2003...
(ESA) sought to overturn similar state laws that placed limits on the sales of violent video games to minors in Michigan and Illinois. The ESA won these cases, with the laws being found unconstitutional and overly restrictive of protected speech. These states did not further challenge the court rulings. The ESA similarly defeated a Louisiana bill in the 2006 Entertainment Software Association v. Foti
Entertainment Software Association v. Foti
Entertainment Software Association v. Foti is a lawsuit filed on June 16, 2006 claiming that a Louisiana law should be declared unconstitutional...
case that would have attempted to ban sales of violent video games from minors.
To counteract these increasing complaints and attempts at legislation, the video game industry in the United States created the Entertainment Software Rating Board
Entertainment Software Rating Board
The Entertainment Software Rating Board is a self-regulatory organization that assigns age and content ratings, enforces industry-adopted advertising guidelines, and ensures responsible online privacy principles for computer and video games as well as entertainment software in Canada, Mexico and...
(ESRB) in 1994. The ESRB, like the Motion Picture Association of America
Motion Picture Association of America
The Motion Picture Association of America, Inc. , originally the Motion Picture Producers and Distributors of America , was founded in 1922 and is designed to advance the business interests of its members...
's rating system, is a voluntary and self-regulated body that examines the content of video games as provided by the publisher before distribution, and given a rating describing the content within, generally classified from being all ages-appropriate to adult audiences only. Video game distributors are similar bound by voluntary compliance to check the age of the purchaser against the rating of the game to prevent the sale of mature titles to younger players. Most stores prevent the sale of unrated games, and as such, virtually every video game sold at retail in the United States is rated by the ESRB. Attempts have been made to mandate the ratings system; the Family Entertainment Protection Act
Family Entertainment Protection Act
The United States Family Entertainment Protection Act was a bill introduced by Senator Hillary Clinton , and co-sponsored by Senators Joe Lieberman , Tim Johnson and Evan Bayh on November 29, 2005...
, a 2005 bill introduced into the U.S. Congress by Senators Hillary Clinton, Joseph Lieberman, and Evan Bayh
Evan Bayh
Birch Evans "Evan" Bayh III is a lawyer, advisor and former Democratic politician who served as the junior U.S. Senator from Indiana from 1999 to 2011. He earlier served as the 46th Governor of Indiana from 1989 to 1997. Bayh is a current Fox News contributor as of March 14, 2011.Bayh first held...
, would have made ESRB participation mandatory with oversight by the Federal Trade Commission, and introduced fines for selling Mature or Adult-Only content to minors. The bill, however, did not clear the Senate. Though the ESRB met criticism in 2000-2005 for the ease of access of mature-rated games to minors, the Board has improved its efforts to enforce the ratings system at retailers. A 2011 report issued by the Federal Trade Commission
Federal Trade Commission
The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
found that the voluntary controls by the ESRB had the highest success rate of any other media industry, preventing sales of mature titles to minors 87% of the time. Similar content rating systems exist in other countries, including the British Board of Film Classification
British Board of Film Classification
The British Board of Film Classification , originally British Board of Film Censors, is a non-governmental organisation, funded by the film industry and responsible for the national classification of films within the United Kingdom...
, the Australian Classification Board
Australian Classification Board
The Australian Classification Board is a statutory classification body formed by the Australian Government which classifies films, video games and publications for exhibition, sale or hire in Australia since its establishment in 1970. The Australian Classification Board was originally incorporated...
, and Japan's Computer Entertainment Rating Organization
Computer Entertainment Rating Organization
The is a Japanese entertainment rating organization based in Tokyo. rating video game content in console games with levels of rating that informs the customer of the nature of the product and for what age group it is suitable...
.
The California law
In 2005, the California State LegislatureCalifornia State Legislature
The California State Legislature is the state legislature of the U.S. state of California. It is a bicameral body consisting of the lower house, the California State Assembly, with 80 members, and the upper house, the California State Senate, with 40 members...
passed AB 1179, sponsored by California State Senator Leland Yee
Leland Yee
Leland Yee is a California State Senator in District 8 which represents the western half of San Francisco and most of San Mateo County. Prior to becoming state senator, Yee was a California State Assemblyman, Supervisor of San Francisco's Sunset District, and was a member and President of the San...
, which banned the sale of violent video games to anyone under age 18 and required clear labeling beyond the existing ESRB rating system. The law would have a maximum $1000 fine for each infraction. The definition of "violent video game" used a variation of the Miller test
Miller test
The Miller test , is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.-History and details:The Miller test was developed in the...
, a three-pronged test used previously by the United States Supreme Court to define when speech is not protected under the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. The bill was signed into law by Gov. Schwarzenegger in October 2005. The law would have gone into effect in January 2006.
The law was a second attempt by Senator Yee to enact restrictions for video game sales to minors. Yee's background as a child psychologist led him to assert there was a connection between video games and violence and believed that the government had strong interest in restricting video game sales to minors as was already done for pornographic works. In 2004, Yee had drafted a law that would have required mature-rated video games to be stocked separately from other titles. Though the bill ultimately passed as CA Law AB 1793
California Assembly Bills 1792 & 1793
California Assembly Bills 1792 & 1793 were two bills introduced by Speaker pro Tempore of the Assembly Leland Yee . Commonly called the "ultraviolent video games bills" or simply "video game ban" bills, these two bills restricted sales of "ultraviolent" video games from minors under the age of 18...
, the bill's language was diluted at its passage, only requiring stores to display the ESRB ratings system and provide information to parents about it.
The District Court Opinion
Even before the California bill was signed into law, the ESA and the Video Software Dealers Association (VSDA), now known as the Entertainment Merchants AssociationEntertainment merchants association
The Entertainment Merchants Association is the not-for-profit international trade association dedicated to advancing the interests of the $32 billion home entertainment industry....
(EMA), were preparing a lawsuit to overturn the law, fearing that the "violent video game" definition would affect many titles that the ESRB has otherwise labeled appropriate for younger players, and threaten to harm the video game industry. The VSDA filed suit in the United States District Court for the Northern District of California
United States District Court for the Northern District of California
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San...
and was later joined by the ESA. The two groups succeeded in obtaining a preliminary injunction in December 2005 to block enforcement of the law during the case; U.S. District Judge Ronald M. Whyte
Ronald M. Whyte
Ronald M. Whyte is a United States federal judge in San Jose, California.Born in Pomona, California, Whyte earned an A.B. in Mathematics from Wesleyan University in Middletown, Connecticut in 1964, and a J.D. degree from the USC Gould School of Law in Los Angeles, California in 1967.Whyte was in...
cited in his preliminary decision: "The plaintiffs have shown at least that serious questions are raised concerning the States' ability to restrict minors' First Amendment rights in connection with exposure to violent video games, including the question of whether there is a causal connection between access to such games and psychological or other harm to children." In August 2007, Whyte ultimately ruled for the plaintiffs, holding that the law violated the First Amendment, and that there was an insufficient showing of proof that either video games differed from other media or that there was established causality between violent video games and violent behavior.
The Ninth Circuit Appeal
California Governor Arnold SchwarzeneggerArnold Schwarzenegger
Arnold Alois Schwarzenegger is an Austrian-American former professional bodybuilder, actor, businessman, investor, and politician. Schwarzenegger served as the 38th Governor of California from 2003 until 2011....
appealed the ruling in September 2007, stating that he would "vigorously defend this law" and that he and the people of California have "a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions." The Ninth Circuit Court of Appeals
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
affirmed Whyte's decision in 2009.
The Ninth Circuit considered the constitutionality of the law; given the timeframe of the law's passing relative to litigation, it was referred to as the "Act" in the court's opinion. The Ninth Circuit affirmed the District Court's Summary Judgment for the VSDA by holding:
- The Act is a presumptively invalid content-based restriction on speech, so it is subject to strict scrutiny and not the "variable obscenity" standard from Ginsberg v. New York.
- The Act violates rights protected by the First Amendment because the state has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exists a less-restrictive means that would further the State's expressed interest.
- The Act's labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information, but compels the carrying of the State's controversial Opinion.
The court first addressed the VSDA's argument that the entire Act should be invalidated based on the defendant's concession on appeal that the definition of "violent video game" in the Act is unconstitutionally broad. However, the statute had a severability clause so the court went through the severability test set forth in Hotel Employees & Rest. Employees Int'l Union v. Davis. The court held that the definition for "violent video game" is grammatically and functionally separable because, as an alternative definition of "violent video game," it can be removed from the Act without affecting the wording or function of the Act's other provisions. Further, the definitions are volitionally separable because those sections were not of critical importance to the passage of the Act and the legislative body would have adopted the Act had it foreseen the partial invalidation of the statute. These definition sections were only included to avoid the possibility that a court would rule the terms unconstitutionally vague; the court found that the legislature would still have enacted the statute without this definition section.
The court next went on to determine what level of scrutiny should be applied in reviewing the Act's prohibitions. The defendants insisted that the "variable obscenity" standard from Ginsberg v. New York should be used. However, the court held that the "variable obscenity" standard does not apply to violence. The Court in Ginsberg was careful to place substantive limits on its holding, and concern in Ginsberg regarded only "sex material," not violence. The court declined to extend the application of the "variable obscenity" standard to violence, so strict scrutiny was applied instead.
In applying the strict scrutiny standard, the court recognized that "content-based regulations are presumptively invalid," and to survive invalidation, the Act had to fulfill two qualifications:
- Restrictions "must be narrowly tailored to promote a compelling Government interest."
- "If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative."
The court invalidated the statute on both accounts. First, the court said that in considering its decision, the court limited the purpose of the Act to the actual harm to the brain of a child playing a violent video game. As a result, the state was required to show that "the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Here, the defendants failed to do so because all of the reports they relied on in making these claims were admittedly flawed. While the state is allowed to protect minors from actual psychological or neurological harm, it is not permitted to control minors' thoughts. Second, the court held that the defendants did not demonstrate the absence of less restrictive alternative means. In fact, video games already comply with a voluntary rating system that rates video games based on their topics and age appropriateness. This is a clear example of a less restrictive means. The court noted that the least restrictive means is not the same as the most effective means.
The court also evaluated the constitutionality of the Act's labeling provision, which requires that a label be affixed to the front of every package the state deems to be a "violent video game." Generally, "freedom of speech prohibits the government from telling people what they must say." However, the court has upheld compelled commercial speech where it is the inclusion of "purely factual and uncontroversial information" in advertising. However, the labeling requirement of "violent video game" is not factual information. The Act has not clearly and legally provided a way to determine if a video game is violent so the sticker does not convey factual information. Consequently the court found that the Act is unconstitutional.
Supreme Court appeal
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
to the Court in May 2009. The Supreme Court agreed to hear the case. The fact that the Court accepted this case was considered surprising, based on the previous case record for such violent video game laws that were unanimously overturned in other states. Analysts believe that because the Court agreed to hear this case, there are unanswered questions between the protection of free speech from the First Amendment, and the legal enforcement of protecting minors from unprotected free speech such as through restrictions on the sales of pornography to minors. Just a week prior to the acceptance of the centiorari, in United States v. Stevens
United States v. Stevens
United States v. Stevens, 559 U.S. ___, 130 S.Ct. 1577 was an April 20, 2010 decision by the Supreme Court of the United States, which ruled that the version of 18 U.S.C...
the Court overturned another law that sought restrictions on depictions of animal cruelty, which some analysts felt would reflect the Court's position to likely overturn the violent video game law.
The Entertainment Consumers Association (ECA) launched an online petition along with their amicus brief to provide the Supreme Court additional information. The Progress & Freedom Foundation and the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
together submitted an amicus brief citing social research that declared Super Mario Bros.
Super Mario Bros.
is a 1985 platform video game developed by Nintendo, published for the Nintendo Entertainment System as a sequel to the 1983 game Mario Bros. In Super Mario Bros., the player controls Mario as he travels through the Mushroom Kingdom in order to rescue Princess Toadstool from the antagonist...
to be a violent video game. It was compared to Mighty Mouse
Mighty Mouse
Mighty Mouse is an animated superhero mouse character created by the Terrytoons studio for 20th Century Fox.-History:The character was created by story man Izzy Klein as a super-powered housefly named Superfly. Studio head Paul Terry changed the character into a cartoon mouse instead...
and Road Runner
Wile E. Coyote and Road Runner
Wile E. Coyote and The Road Runner are a duo of cartoon characters from a series of Looney Tunes and Merrie Melodies cartoons. The characters were created by animation director Chuck Jones in 1948 for Warner Bros., while the template for their adventures was the work of writer Michael Maltese...
, cartoons that depict a similar form of violence with little negative reaction from the public. Video game developers Microsoft
Microsoft
Microsoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...
and Activision Blizzard
Activision Blizzard
Activision Blizzard, Inc., formerly Activision, Inc. is the American holding company for Activision and Blizzard Entertainment. The company is majority owned by French conglomerate Vivendi SA and was created through the merger of Activision and Vivendi Games, announced on December 2, 2007, in a...
supported the ESA effort. Industry associations for musical works, movies, and publishing, including the National Association of Broadcasters
National Association of Broadcasters
The National Association of Broadcasters is a trade association, workers union, and lobby group representing the interests of for-profit, over-the-air radio and television broadcasters in the United States...
, the Motion Picture Association of America
Motion Picture Association of America
The Motion Picture Association of America, Inc. , originally the Motion Picture Producers and Distributors of America , was founded in 1922 and is designed to advance the business interests of its members...
, Recording Industry Association of America
Recording Industry Association of America
The Recording Industry Association of America is a trade organization that represents the recording industry distributors in the United States...
, National Cable & Telecommunications Association
National Cable & Telecommunications Association
The National Cable & Telecommunications Association is the principal trade association for the U.S. cable TV industry, representing cable operators serving more than 90 percent of the nation’s cable households and more than 200 cable program networks, as well as equipment suppliers and providers...
, and the Future of Music Coalition
Future of Music Coalition
Future of Music Coalition is a U.S. 501 national non-profit organization specializing in education, research and advocacy for musicians with a focus on issues at the intersection of music technology, policy and law.- Background :...
, also submitted briefs to the court in favor of striking down the law, fearing that should the law found to be constitutional, their industries would also be affected. Associations for the protection of civil rights, including the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
, the National Coalition Against Censorship
National Coalition Against Censorship
The National Coalition Against Censorship , founded in 1974, is an alliance of 50 national non-profit organizations, including literary, artistic, religious, educational, professional, labor, and civil liberties groups...
, and the National Youth Rights Association
National Youth Rights Association
The National Youth Rights Association is the largest youth-led civil rights organization in the United States promoting youth rights, with approximately ten thousand members...
, submitted amicus briefs. Also filing amicus briefs against the State of California was a coalition of other states including Rhode Island, Arkansas, Georgia, Nebraska, North Dakota, Oklahoma, South Carolina, Utah and Washington, as well as Puerto Rico, which stated the law was unnecessary as no evidence linked video games to youth violence and the voluntary ESRB system was working well. Also submitting an amicus brief opposing the law was a coalition of 82 psychologists, criminologists, medical scientists and media researchers concerned that the State of California had misrepresented the science on video games.
The State of California was joined by eleven other States, including those that had passed laws later declared unconstitutional; the States, in an amicus brief, stated that they are "vitally interested in protecting the welfare of children and in helping parents raise them" but the District Court's decision restricts their authority to do so. Further supporting the State of California were the American Academy of Pediatrics
American Academy of Pediatrics
The American Academy of Pediatrics is the major professional association of pediatricians in the United States. The AAP was founded in 1930 by 35 pediatricians to address pediatric healthcare standards. It currently has 60,000 members in primary care and sub-specialist areas...
, the California Psychological Association, Common Sense Media
Common Sense Media
Common Sense Media , commonly known as CSM, is a San Francisco-based non-profit organization which serves as a guide for parents that has reviews for most media types, including books, movies, video games, music, and websites, and rates them in terms of violence, sex, and profanity. The website...
, and the Eagle Forum
Eagle Forum
Eagle Forum is a conservative interest group in the United States founded by Phyllis Schlafly in 1972 and is the parent organization that also includes the Eagle Forum Education and Legal Defense Fund and the Eagle Forum PAC. The Eagle Forum has been primarily focused on social issues; it describes...
.
Oral argument
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
s were held on November 2, 2010. To California's attorney, the Justices voiced concern on the distinction between video games and other commercial works such as films and comic books. Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
wondered if the law with its vague definition of "violence" could also be applied to Grimm's Fairy Tales
Grimm's Fairy Tales
Children's and Household Tales is a collection of German origin fairy tales first published in 1812 by Jacob and Wilhelm Grimm, the Brothers Grimm. The collection is commonly known today as Grimms' Fairy Tales .-Composition:...
. To the ESA and other trade groups, the Justices suggested that California and other states do have precedence to protect minors from certain forms of violence, though under narrower terms than the California law. Justice John G. Roberts Jr. argued that while companies can provide parental filters on such violent games, "any 13-year-old can bypass [them] in about five minutes." Several questions centered on the controversial game Postal 2
Postal 2
Postal 2 is a first-person shooter video game by Running with Scissors, and it is the sequel to the 1997 game Postal. Both are intentionally highly controversial due to high levels of violence and stereotyping. Unlike its predecessor, Postal 2 is played completely in first-person based on the...
, where the player can urinate on non-player characters and set them ablaze, among other violent acts. The Justices, in general, agreed that upholding California's law would require a "novel extension of First Amendment principles to expressions concerning violence."
Opinion
Ginsberg v. New York
Ginsberg v. New York was a 1968 Supreme Court of the United States decision. The Warren Court ruled that material that is not obscene may nonetheless be harmful for children, and its marketing may be regulated.-Background:...
case, "speech about violence is not obscene," and California's statute was unlawful. The decision pointed to fairy tales like those of the Brothers Grimm
Brothers Grimm
The Brothers Grimm , Jacob Grimm and Wilhelm Grimm , were German academics, linguists, cultural researchers, and authors who collected folklore and published several collections of it as Grimm's Fairy Tales, which became very popular...
, which are regularly given to children to read, "contain no shortage of gore" that are also present in video games. The decision further compared video games to classical works like The Divine Comedy
The Divine Comedy
The Divine Comedy is an epic poem written by Dante Alighieri between 1308 and his death in 1321. It is widely considered the preeminent work of Italian literature, and is seen as one of the greatest works of world literature...
, stating that "Even if we can see in them nothing of any possible value to society[...], they are as much entitled to the protection of free speech as the best of literature." Scalia's decision also stated that the current self-moderated industry standards like the ESRB are operated effectively to regulate the sale of more mature games to minors, and that "filling the remaining modest gap in concerned-parents' control can hardly be a compelling state interest" requiring a law to enforce. The Court's decision also determined that from the evidence, there was no "compelling" link between violent video games and its effects on children. The decision cited one medical report that asserted that cartoons like Looney Tunes
Looney Tunes
Looney Tunes is a Warner Bros. animated cartoon series. It preceded the Merrie Melodies series and was Warner Bros.'s first animated theatrical series. Since its first official release, 1930's Sinkin' in the Bathtub, the series has become a worldwide media franchise, spawning several television...
generate the same effects in children as in games like Sonic the Hedgehog or imagery of guns.
Alito's concurrence
Justice Samuel AlitoSamuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
wrote a separate concurrence
Concurrence
In Western jurisprudence, concurrence is the apparent need to prove the simultaneous occurrence of both actus reus and mens rea , to constitute a crime; except in crimes of strict liability...
supporting the majority decision, and was joined by Chief Justice John G. Roberts. Though Alito agreed with the constitutional application to the California law, believing that its "threshold requirement" that guides what material would be covered by the law was too broad, he questioned the potential double standard
Double standard
A double standard is the unjust application of different sets of principles for similar situations. The concept implies that a single set of principles encompassing all situations is the desirable ideal. The term has been used in print since at least 1895...
that existed between violence and sexual content in regards to this threshold. Alito wrote that he was unsure that there was no connection between violent video games and effects on children, stating that "There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show," referencing the book Infinite Reality which highlights the psychological effects of virtual reality, and argued that the decision "would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem."
Dissents
Justices Clarence ThomasClarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
and Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
dissented, each authoring a separate dissent. Justice Thomas, in his dissent, considered that historically, the Founding Fathers "believed parents to have complete authority over their minor children and expected parents to direct the development of those children," and that the intent of the First Amendment "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians."
Breyer wrote separately, concerned that the majority's decision conflicts with previous rulings from Ginsberg and Miller. He contrasted the previous findings regulating sales of publications containing nudity to those of violent video games: "But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13 year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?" Breyer further argued that "This case is ultimately less about censorship than it is about education," believing that the Government has a vested interesting in allowing parents to make decisions for their child as to "raise future generations committed cooperatively to making our system of government work," and that "California's law imposes no more than a modest restriction on expression." Breyer also expressed concern that the self-regulation of the industry still allowed for 20% of minors to purchase mature video games on a national average, and as high as 50% in the case of one nationwide chain, based on the aforementioned 2011 Federal Trade Commission
Federal Trade Commission
The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
study.
Reactions
The ruling was praised by the video game industry, who had expected the law to be ruled unconstitutional, but sought affirmation by the Court. ESA's CEO, Michael Gallagher, responded that "The Court declared forcefully that content-based restrictions on games are unconstitutional; and that parents, not government bureaucrats, have the right to decide what is appropriate for their children." Bo Anderson of the EMA stated that "there now can be no argument whether video games are entitled to the same protection as books, movies, music, and other expressive entertainment," while Electronic Arts' CEO John RiccitielloJohn Riccitiello
John Riccitiello is the CEO of Electronic Arts .He received his Bachelors of Science degree from the Haas School of Business at the University of California, Berkeley....
asserted that the decision "affirmed the constitutional rights of game developers." Other entertainment industries, such as the Motion Picture Association of America, also showed support for the Court's decision. Former U.S. Senator and current head of the Association Chris Dodd recognized that the motion picture industry has seen similar attempts to limit its freedom of expression, and that "We applaud the Supreme Court for recognizing the far-reaching First-Amendment implications posed by the California law."
Groups that supported the California law were critical of the decision. California State Senator Leland Yee was very critical of the decision, claiming that "It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children." Yee stated he would review the opinions and attempt to reintroduce a new bill within the constitutionality of the decision, and claimed it was "disappointing the court didn't understand just how violent these games are." James Steyer of Common Sense Media
Common Sense Media
Common Sense Media , commonly known as CSM, is a San Francisco-based non-profit organization which serves as a guide for parents that has reviews for most media types, including books, movies, video games, music, and websites, and rates them in terms of violence, sex, and profanity. The website...
also criticized the decision, citing that "If parents decide a violent game is okay for their kid, that's one thing, but millions of kids are not able to judge the impact of ultra-violence on their own." Andy Schlafly
Andrew Schlafly
Andrew Layton "Andy" Schlafly is an American lawyer, conservative political activist, teacher of homeschooling classes, and the founder and owner of wiki Conservapedia...
, who had submitted a brief to the court on behalf of the Eagle Forum and Legal Defense Fund, heavily criticized the majority opinion, believing that "the court's latest disregard of parental rights is on a crash course with technological advances." Tim Winter of the Parents Television Council
Parents Television Council
The Parents Television Council is a U.S. based advocacy group founded by conservative activist L. Brent Bozell III in 1995 using the National Legion of Decency as a model...
asserted that the Court's decision "replaces the authority of parents with the economic interests of the video game industry." The Washington Post opined that the California law "did nothing to infringe on the rights of adults" while dealing with "reasonable limitations on minors’ access to extremely violent games that even the video game industry acknowledges are inappropriate," and that with the high bar for any future legislation, the onus is on the video game industry to maintain its self-policing of video game sales.
Analysts believed that while this was a major victory for the video game industry, the challenge is not yet over. Dan Offner, a partner for the video game industry analysis firm Loeb & Loeb believed that similar laws and regulations will be sought by State and Federal governments, as "the regulation of mature content with respect to minors as a hot button issue for the Federal Trade Commission and the various state governments." Other analysts cited that as more game content becomes available online as opposed to retail channels, the focus may shift more towards "privacy and security" of children and preventing children from amassing large fees from pay-to-use gaming services, pointing to a $3 million settlement that Playdom
Playdom
Playdom is an online social network game developer popular on Facebook and on MySpace; it is currently the largest social game developer on MySpace and one of the larger ones on Facebook. The company was founded in the San Francisco Bay Area by University of California, Berkeley graduates Ling Xiao...
had to pay for violating privacy of its younger users. Sean Bersell of the EMA noted that future debates over violent video games may involve public opinion in addition to new legislation, noting that "Retailers along with publishers and parents all have a role in keeping kids away from these games." Seth Schiesel of the New York Times proposed that the Court's decision should be a challenge to the industry to show that they can mature on the decision that video games are a form of art
Art game
An art game or arthouse game is a video game that is designed in such a way as to emphasize art or whose structure is intended to produce some kind of reaction in its audience. Art games typically go out of their way to have a unique, unconventional look, often standing out for aesthetic beauty or...
, questioning the industry "Will you use it as cover to pump out schlock or will you rise to the opportunity and respectability that has been afforded you?" Schiesel also considered that games that are more interactive may help players to become more aware of the consequences of their actions.
Public opinion
A national telephone poll conducted in the second quarter of 2011 by Fairleigh Dickinson UniversityFairleigh Dickinson University
Fairleigh Dickinson University is a private university founded as a junior college in 1942. It now has several campuses located in New Jersey, Canada, and the United Kingdom.-Description:...
’s PublicMind showed that a majority of American voters (57%) agreed that the states should have the “right to regulate the sale of video games [that are violent] in order to protect minors; the same way states regulate tobacco, alcohol and pornography.” On the other hand, 39% of voters agreed with the Court’s majority that “parents should make the decision” about what video games they purchase for their children, and what constitutes “too violent.” These voters agreed with the statement “states do not have the right to decide that some video games are too violent for [minors], any more than they have the right to decide what literature or fairy tales are too violent.” The poll was conducted before the Court released its decision on June 27, 2011.
Demographic breakouts demonstrated that men were more likely than women to agree that the supervision of minors’ video purchases should be left to parents, and not be regulated by the states. In addition, younger voters were far more likely than older voters to say the states should not have the right to decide what is “too violent for kids.”
Bruce Peabody, professor of political science at Fairleigh Dickinson University and editor of the book The Politics of Judicial Independence: Courts, Politics, and the Public., responded to the poll results and the Court’s decision by noting that "under Chief Justice Roberts, the Court has been especially protective of the First Amendment" but he also said "these results put the Court on a potential collision course with the public."