The state of California on Friday filed its reply brief to the United States Supreme Court in the case of Schwarzenegger v. Entertainment Merchants Association/Entertainment Software Association, aka the case that will determine whether a California law prohibiting the sale of “violent” video games to minors is indeed unconstitutional.
In its reply, California takes aim at the “alarming picture of government censorship of both classic and contemporary art and literature” alleged put forth by the EMA and ESA, suggesting that the EMA/ESA’s arguments “[ignore] the level of extreme violence depicted in the narrow category of video games that is actually covered by the Act.” (“Act” here refers to the original bill passed by California that made it a fineable offense to sell “violent” video games to minors.)
To counter the EMA/ESA’s claims, the State frames its position according to an “established three prong test that carefully ensures that speech with serious literary, artistic, political, or scientific value for minors will not be regulated.” The first prong of this argument is that the Act “applies, first, only to violent gaming content that includes the killing, maiming, dismembering, or sexually assaulting of an image of a human being in a manner that a reasonable person would find appeals to a deviant or morbid interest of minors.”
Despite the EMA/ESA’s arguments regarding the potential problems with this definition of “violent gaming content” in their brief, California states bluntly that the categorization is “straightforward,” and that “a reasonable person can make this judgment through application of a common understanding and definition of the applicable terms.” The State doesn’t help themselves out here, much in the same way they didn’t help themselves out in its initial Supreme Court filing, because it still presumes that a generally accepted view of depictions of violence could be reached, and that’s presuming quite a bit.
The second prong can be applied only after the first one has been satisfied, and it states the Act “will apply to a game if the violent content, as defined, is patently offensive…to minors.” The State cites the inclusion of the terms, “killing, maiming, dismembering, or sexually assaulting an image of a human being” to demonstrate the “narrow” reach of the Act.
Again, this brings up the issue of trying to create a definition for violence that everyone can agree on, and this just seems rife with problems. I mean, even “killing” isn’t all that specific since Mario technically “kills” enemies when he hopes on their heads, so to suggest that a definition for what would be considered offensively violent versus violent could be reached and then applied in some kind of legislative capacity seems insurmountable.
So once the first two prongs of California’s argument have been satisfied, the third prong comes into play by specifying that the Act applies to games “where the patently offensive, deviant level of violence causes the game as a whole to lack serious literary, artistic, political, or scientific value for minors, and as such, “no constitutional principles are served by allowing minors to purchase this material without parental involvement.”
Surprisingly, California continues to include the “as a whole” designation when talking about violent games lacking artistic value. It seems like California is setting up an impossible burden for itself by suggesting that someone would be tasked with determining if an entire game was devoid of artistic value entirely based on the violent content found in said game.
To further focus its case, California concedes that the “important place in American culture that is occupied by expression depicting violence provides no basis for overturning California’s narrow prohibition on the commercial sale of offensively violent video games to minors.”
Check back tomorrow as we break down the specifics of California’s reply brief to see exactly where the State takes issue with EMA/ESA’s case.