This morning in Washington D.C., the U.S. Supreme Court heard opening oral arguments in the case of Schwarzenegger vs. The Entertainment Merchants Association and Entertainment Software Association, a case that could decide the legal status of video games.
The issue at hand is whether a California law that punishes retailers for selling violent games to children is constitutional. The Supreme Court's ruling could ultimately determine whether video games are considered "speech," and afforded the same protection under the First Amendment that movies, books, music and other art forms.
California Attorney General Zackery Morazzini opened the Supreme Court proceedings, and was quickly interrupted by Justice Anthony Scalia who questioned how the State distinguishes violence in video games from the violence found in other mediums.
“Some of the Grimm’s fairy tales are quite grim," Scalia said. "Are they okay? Are you going to ban them, too?” To which Morazzini responded, "Not at all.”
Justice Ginsburg echoed Scalia’s doubts, asking, “What's the difference? mean, if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books?...Why are video games special?”
The Justices showed concern over the vagueness of California’s law, which was to be expected given that the law’s lack of specificity was one of the major reasons the Ninth Circuit Court of Appeals declared the law unconstitutional back in 2009.
Justice Sonia Sotomayor called into question several studies presented by California that suggest a link between playing violent video games and an increate in violent behavior in minors. "One of the studies says...that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?"
Newly appointed Justice Elena Kagan asked Morazzini if he thought Mortal Kombat would be classified as “objectionable” under the State’s law, and Morazzimi said it would. Justice Kagan went on to say that many clerks who work for the court most likely played Ed Boon’s famously violent fighting game at some point growing up, reflecting the frequently lighthearted tone of the proceedings.
Justice Stephen Breyer questioned the EMA/ESA’s claims that California’s law violates the First Amendment by arguing that since the law doesn’t prevent parents from purchasing M-rated games for their kids, it’s not actually a 1st Amendment issue. However, Justice Breyer did go on to agree with the EMA/ESA, saying, "It's very hard to draw this line under traditional First Amendment standards."
Chief Justice John Roberts took issue with arguments that parental controls on consoles are capable of keeping minors from playing mature games, claiming that because kids can access videos online that show how to bypass controls, the controls themselves are insufficiently preventive. California argued this exactly point in their original brief.
“With the exception of Justice Breyer and Chief Justice Roberts, "said X-Play’s Adam Sessler, who was in attendance at the Supreme Court this morning, "the Justices seemed collectively skeptical of California’s arguments, and posed exactly the kinds of questions you would expect, and hope, they would. Most of the Justices, especially Scalia, seemed hard-pressed to understand why video games should be seen as exceptional.”
The State of California presented limited amounts of gameplay footage from Running With Scissor’s infamously offensive Postal 2, as well as read written descriptions of some of the game’s most offensive content. California focused almost exclusively on aspects of gaming that are far from the norm, such as torture or violence towards women and children. The EMA/ESA included over two-and-a-half hours of gameplay footage from a variety of games in their original Supreme Court filing.
The Supreme Court is expected to reach a decision in the case no later than June 2011, and maybe as early as March.
Stay tuned to G4tv.com as we’ll be bringing you more SCOTUS coverage throughout the day.