Video Games On Trial: Part Three -- The EMA And ESA's Arguments


Posted October 6, 2010 - By Jake Gaskill

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California Files Reply Brief In Violent Video Game Supreme Court Case

In part three of our on-going series examining the upcoming Supreme Court case Schwarzenegger v. Electronic Merchant Association/Entertainment Software Association, we will be looking at the arguments presented on behalf of the video games industry by the EMA and ESA (aka Respondents). If you need a refresher, be sure to check out Part One and Part Two to find out more about the bill that sparked this whole debate and California’s arguments in the case.

The EMA/ESA begin their brief with a mini history lesson of sorts that seeks to frame video games alongside other “wildly popular form[s] of expression enjoyed by millions of people” such as movies, comic books, rock music, and true-crime novels, all of which have, at one point or another, faced similar attacks to the ones being levied against video games today.

To supplement their arguments, the Respondents submitted a highlight reel of over two-and-a-half hours of gameplay from six games into the record to demonstrate the variety and complexity commonly found in modern games. The titles submitted were Medal of Honor: Frontline, God of War, Tom Clancy’s Rainbow Six 3, Jade Empire, Resident Evil 4, and Full Spectrum Warrior. The EMA/ESA also reference a number of other titles including The Sims, Red Dead Redemption, and Prince of Persia: The Sands of Time. This is particularly telling given that California limits its game references to an unspecifed reference to the wound-healing "Survival Viewer" in Metal Gear Solid 3: Snake Eater, and Postal 2, which the Respondents mention in their brief as well so as to reiterate the game’s satirical and intentionally provocative nature.

Before the Respondents jump into their official arguments, they provide some preliminary information regarding the Entertainment Software Ratings Board (ESRB) and its effectiveness in keeping M-rated games out of the hands of minors. In their brief, California argued the ESRB wasn’t effective enough and therefore justified governmental interference in order to help parents where the ESRB was apparently failing.

In their defense of the ESRB, Respondents cited a 2009 FTC study that declared “the video game industry outpaces the movie and music industries” in three key areas: “restricting target-marketing of mature-rated products to children, clearly and prominently disclosing rating information, and restricting children’s access to mature-rated products at retail.” In fact, 80 percent of the 17-year-olds who participated in the study were unable to buy M-rated games, compared to 72 percent who were turned away trying to buy tickets to an R-rated movie, and the 46 percent who weren’t able to buy R-rated DVDs.

This brings us to the Respondents primary arguments, which consist of four major points: two concerning the First Amendment protections that should be applied to video games and two concerning the legislative failings of the Act, aka the Assembly Bill at the heart of this debate.


Argument 1: “Video games, including those that depict violence, are a form of expression fully protected by the First Amendment.”

This initial argument sets forth the idea that not only are video games similar to literature, movies, and other forms of constitutionally protected forms of entertainment, in that some of them include depictions of violence, but that the State’s insistence that the interactive nature of video games adds to their purported negative influence on minors is inherently flawed. To that point, the Respondents assert, “the Government is not entitled to regulate speech on the ground that it is particularly effective at conveying its message.”

On the topic of violence, the Respondents cite United States v. Stevens (2010) to show that “depictions of violence have never been considered a category of unprotected expression.” Coupled with the idea that “depictions of violence have played a central and celebrated role in literature,” (i.e. The Odyssey, The Divine Comedy, War and Peace), the EMA/ESA contend that California’s attempts to classify violence as either obscene or as being “historically…regulated as the equivalent of obscenity” are “meritless.”

Argument 2: “The Court should reject the State’s unprecedented plea to carve out First Amendment exceptions for ‘offensively violent’ video games.”

One of the fundamental issues the EMA/ESA takes with California’s overall argument is its lack of specificity. “At times it seems to say that the government has a right to restrict any expression it finds ‘offensive’ for minors. At other times, the argument seems to be limited to ‘offensively violent’ expression. And at still other times, it seems to be limited to ‘offensively violent’ video games.”

The reason the Respondents take such issue with the State’s arguments is that it “has almost no stopping point because so many expressive works contain violent depictions or other content that someone could deem offensive for minors.” And allowing this kind of broad application would cause serious First Amendment issues, not just today, but in the future as well.

With regards to California’s argument that it should have the right to prevent minors from accessing “offensive” expression, the EMA/ESA cites Lorillard Tobacco Co. v. Reilly (2010), which found, “We have held consistently that speech ‘cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.’”

Whereas California paints minors as lacking the “capacity…to make a reasoned choice” in terms of what content they consume, the Respondents point to conclusions reached in Tinker v. Des Moines Indep. Cmty. School Dist. (1969), stating, “Minors are participants in the marketplace of ideas, and are ‘unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.”

The EMA/ESA reiterate here that “the Court has not freely allowed the government to censor speech it deems inappropriate for minors, instead relying on parents to control access in the first instance.” California clearly states in its arguments that it believes it is constitutionally permissible to limit minors’ access to “offensively violent material” because “the State has a vital interest in reinforcing parent’ authority to direct the upbringing of children in order to protect their physical and psychological welfare, as well as their ethical and moral development.”

However, as the EMA/ESA counters, “when government regulates expression in the name of assisting parents, it usurps their role and favors the preferences of some parents over those of others. That is simply another presumptively impermissible form of censorship.” In addition, as the Respondents later argue, California failed to demonstrate that parents are incapable of keeping violent games away from their kids and thus are in need of legislation to assist them. The EMA/ESA states that not only are “nearly all video games played by minors…purchased for them by their parents,” kids aren’t always trying to buy “violent” video games, nor are they doing so without their parent present. Even if they were trying to buy an M-rated game, “the sale most likely will not go through because of voluntary retailer enforcement of the ESRB rating system.”

A fair portion of California’s argument in defense of the Act is devoted to trying to have the same standards that apply to sexually explicit material apply to violent video games. But as the EMA/ESA point out, “California’s attempt to equate portrayals of violence with sexual materials ignores an important reality: violence, unlike explicit descriptions of sex, is a central feature of expression intended for minors”(e.g. Grimm’s Tales for Young and Old, Snow White, Harry Potter and the Half-Blood Prince, Lord of the Flies, and even movies such as Star Wars and The Lord of the Rings).

The Ninth Circuit rejected the various studies the State tried to use to “prove” a connection between playing violent video games and exhibiting violent behavior on the grounds that they “suffer from significant, admitted flaws in methodology as they relate to the State’s claimed interest.” The EMA/ESA draws a similar conclusion, stating that, “If evidence of this sort were sufficient to justify treating expression as unprotected, the First Amendment would mean very little.”

The EMA/ESA go on to address the various ways “California is replaying attacks that have been launched against new forms of media going back many decades.” The same arguments regarding the “realistic” quality of games have been used in similar ways to attempt to impose restrictions on comic books, movies and novels, and each time those arguments were rejected. In terms of video games, the “interactivity” and “realistic” depictions of violence are often used to argue that they are more likely to influence kids’ behavior. Yet as the EMA/ESA states, “The reality is that 67 percent of all American households now play video games. Since the emergence of graphically violent games 15 years ago, juvenile violent crime has declined precipitously.”

Argument 3: “The Act fails strict scrutiny”

There are three basic factors that need to be satisfied in order for the Act to pass strict scrutiny. It has to show a “compelling state interest, prove the Act actually serves that interest and is ‘necessary’ to do so, and show that the Act is narrowly tailored to serve that interest.”

As the EMA/ESA conclude, California was unable to prove violent video games make kids violent, and furthermore, the State, “does not have a compelling interest in shielding minors from constitutionally protected expression that it deems offensive.” Additionally, the Act would essentially make it illegal for a kid to buy Rainbow Six 3, yet that same kid would still be able to buy the Tom Clancy novel on which it is based, a situation that “underscores that California’s ultimate purpose in enacting the law was to target and punish a disfavored speaker, rather than achieve its asserted purpose.”

This leads into the next issue, which is that the Act “is not narrowly tailored” and so would extend its restrictions well beyond violent video games. Not only that, the Act makes no distinction between a “17-year-old and a pre-schooler, in contrast to the ESRB," which has a wide variety of age-specific ratings.

Like the EMA/ESA argued earlier, the Act isn’t the least restrictive way to keep violent video games away from minors. The ESRB has been shown to be effective in clearly labeling M-rated games, and parental controls on consoles let parents directly control the content available to their kids. Also, the suggested “18” label the Act would have required games to carry would actually confuse parents more as to the content of those games, and even obscure pertinent ESRB rating information.

The broader, and more serious, implication of the Act’s proposal of fining retailers $1,000 for selling minors M-rated games is the notion of self-censorship on behalf of not just retailers, but developers as well, since they would be less willing to include content that could potentially violate the Act and put them in legal danger.

Argument 4: “The Act is unconstitutionally vague”

To the EMA/ESA, California’s use of terms such as “killing, maiming, dismembering, or sexually assaulting an image of a human being,” are far too vague and “provide[s] little guidance to game creators and distributors.” Basically, because it is nearly impossible to apply these terms to depictions of violence in video games. Do zombies, aliens, or cartoonish characters qualify as “images of human beings”? The Respondents ask, “If the game allows the player to crush a super villain with a boulder, has a maiming occurred if the villain regenerates his strength?”

Whereas “sexual obscenity is a narrowly defined category that has accrued meaning over time…the meaning of ‘deviancy’ and ‘morbidity,’ for example, in the context of violent expression is entirely undefined.” The EMA/ESA argue that should violent video games be classified as “offensively violent” speech, and a new category is established beyond the First Amendment rights of minors, it could result in a “chilling effect” on speech in the future. If kids can be denied access to violent video games, what’s to stop a law from saying they should be denied access to certain books, movies, and other forms of expression too?


And that concludes the EMA and ESA's side of the case. Be sure to tune in on Friday as we look ahead to November 2, and discuss our predictions and expectations for this landmark case.

[image source: Encyclopedia Britannica]

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Video Games On Trial: Part Three -- The EMA And ESA's Arguments


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