Video Games On Trial: Part Two -- California's Arguments


Posted October 5, 2010 - By Jake Gaskill

California Files Reply Brief In Violent Video Game Supreme Court Case

In part one of our four-part feature on the upcoming Supreme Court of the United States case of Schwarzenegger v. Entertainment Merchants Associations/Entertainment Software Association we walked you through the contents of Assembly Bill No. 1179, the bill responsible for sparking the upcoming Supreme Court case in the first place. For part two, we’ll look at California’s arguments in defense of the bill and how those arguments attempt to address the Ninth Circuit court of appeals decision, which upheld the decision that found the Act to be unconstitutional.

When the Ninth Circuit upheld the district court’s decision that Assembly Bill 1179, aka the Act, was unconstitutional, it cited four main factors for the ruling, three of which California addressed in its appeal to the Supreme Court.

The first was that the same First Amendment restrictions that apply to sexually-explicit content, as established in Ginsberg v. New York (1968), cannot be applied to violent content, especially in the way California attempted to apply it. As the Ninth Circuit explained in its official decision:

“In essence, the State argues that the Court’s reasoning in Ginsberg that a state could prohibit the sale of sexually-explicit material to minors that it could not ban from distribution to adults should be extended to materials containing violence. This presents an invitation to re-consider the boundaries of the legal concept of ‘obscenity’ under the First Amendment.”

The court went on to say, “The State suggests that the justifications underlying Ginsberg should apply to the regulation of violent content as well as sexually explicit material. The assertion, however, fails because “Ginsberg is specifically rooted in the Court’s First Amendment obscenity jurisprudence, which relates to nonprotected sex-based expression—not violent content, which is presumably protected by the First Amendment,” and as such, the Ninth Circuit declined “the State’s entreaty to extend the reach of Ginsberg and thereby redefine the concept of obscenity under the First Amendment.”

California’s counter argument: “The First Amendment permits states to restrict the sale of offensively violent video games to minors”

In the first section of its Supreme Court filing, California argues that because minors lack the “capacity … to make a reasoned choice as to whether to consume specific speech,” and because “violent video games, like sexual images, can be harmful to minors and have little or no redeeming social value for them,” the restrictions put forth with regards to sexually explicit material should, in fact, be applicable to violent video games as well when it concerns minors.

The State continues this line of reasoning, arguing, “The susceptibility of minors to harmful effects of external influences, well beyond that of adults, justifies differentiations in treatment in the eyes of the law.”

Differentiating between the First Amendment rights of adults and minors lies at the heart of California’s reasoning here, and the State cites a number of court cases (FCC v. Pacifica Foundation, Erznoznik v. City of Jacksonville) to support why limiting minors’ access to violent video games is comparable to limiting their access to other potentially harmful or offensive material.
Supplementing California’s arguments regarding the limited First Amendment rights of minors is the familiar “Won’t someone please think of the children?!” defense. Because kids don’t have the mental capacity to made sound judgments, it is up to parents, aided by the State via legislation like the Act, to protect minors from harmful materials, such as violent video games.

Again, the State references precedents established in a variety of cases, such as the previously cited FCC v. Pacifica Foundation, which concerned George Carlin’s famous “Filthy Words” monologue about the seven words you can’t say on television, and a number of cases in which schools were shown to be in the right when banning “vulgar” books (Board of Education v. Pico, 1982) or limiting certain types of speech, like that which promotes drug use (Morse v. Frederick, 2007). The point California is making here is that the State should be just as free to “aid” parents by limiting kids’ access to potentially harmful material as schools are.

The conclusion California draws from this line of reasoning is as follows: “California Legislature should have the flexibility to limit children’s access to a narrow category of offensively violent video games that depict and even reward gruesome violence such as decapitations, torture, and mutilation.”


The second area where California was unable to convince the Ninth Circuit was with regards to the State’s failure to show a direct link between playing violent video games and actual psychological harm to minors. This was due largely to the fact that the studies cited by the State to support its “violent games cause violent behavior” argument were found to “suffer from significant, admitted flaws in methodology as they relate to the State’s claimed interest.” Because of this lack of compelling evidence, the Court determined that the restrictions proposed in the Act were not justifiable.

California’s counter argument: “The First Amendment does not demand proof of a direct causal link between exposure to violent video games and harm to minors.”

The State argued that the standard the Ninth Circuit applied when assessing the effect of violent video games on kids was too strict, and as a result, “the Ninth Circuit placed California in a situation where it could only justify a law prohibiting the sale of violent video games to minors through the use of a study that can never be performed.” The study being in reference to what would be required to prove a direct causal link between playing violent video games and exhibiting violent behavior.

California uses this point to draw a distinction between the precedents set by the Ninth Circuit and those set by the Supreme Court of the United States.

“Never has [SCOTUS] demanded proof of direct causation of harm to minors in order to justify a regulation on the speech they may consume absent parental guidance. However, the opinion of the court below does just that,” said California.

Despite the findings of the Ninth Circuit regarding the studies cited by California in its initial appeal, the State goes on to argue that said studies “established a correlation between playing violent video games and increased automatic aggressiveness, aggressive thoughts and behavior, antisocial behavior, and desensitization to violence in minors and adults,” and because correlation should be all that is needed in this instance, the State argues the Ninth Circuit’s decision should be reversed.


The final Ninth Circuit argument addressed by California involves the State’s inability to prove that that “there are no less restrictive alternatives that would further the Act.” In other words, the State failed to show that the Act would be by far the most effective method for preventing minors from gaining access to violent video games. The Court pointed to the efforts of the Entertainment Software Ratings Board and the fact that modern game consoles have parental controls built into them to refute the State’s claims, and, ultimately, reject them entirely.

California’s counter argument: “The Act is the least restrictive means of serving the State’s compelling interests.”

On the topic of the ESRB, the State points to a 2004 FTC report that  found that “69% of children were able to purchase M-rated games, and more than half (56%) of the youngest shoppers – 13-year-olds – were able to buy an M-rated game.” While a significant drop over previous years, the FTC concluded that “the numbers still fall short of what might be expected given the multi-year effort by the ESRB to encourage retailers to adopt restrictive sales policies.”

To further call into question the effectiveness of the ESRB, the State points out that game publishers aren’t required to submit their games to the ESRB to be rated, so “no amount of educational campaigning will impact the sale of [unrated] games to miniors.”

As for the Ninth Circuit’s assertion that the parental controls found on modern gaming consoles provide a viable alternative to the Act’s restrictions, California argues that “any child with a computer or gaming console connected to the Internet can easily search the World Wide Web for instructions on how to bypass the parental control [features].”

For these two reasons, the State concluded that “the Act, through the imposition of civil penalties, was the only effective means of ensuring that parents have the ability to involve themselves at the initial stage of the process.”


And that, they say, is that. And by “that” I mean “the essence of what California will be arguing before the Supreme Court in November." Be sure to tune in tomorrow for Part Three where we will walk through the arguments made on behalf of the other side of this landmark case, the Entertainment Merchant Association and the Entertainment Software Association.

Should the need arise, feel free to E-Mail me your tips, suggestions, and/or personal philosophies, or follow me on Twitter.

Video Games On Trial: Part Two -- California's Arguments


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