We just finished bringing you part 1 of the more noteworthy exchanges about video game law between California Attorney General Zackery Morazzini and the nine Justices of the Supreme Court from today’s oral arguments in the case of Schwarzenegger v. Entertainment Merchants Association/Entertainment Software Association. And now we’re going to highlight the breakout moments from Paul Smith’s, counsel for the EMA/ESA, presentation to the highest court in the land.
On the topic of games potentially being harmful for kids given the interactive nature of the medium, Chief Justice Roberts sought some clarity from Smith.
CHIEF JUSTICE ROBERTS: What about the distinction between books and movies may be that in these video games the child is not sitting there passively watching something; the child is doing the killing. The child is doing the maiming. And I suppose that might be understood to have a different impact on the child's moral development.
MR. SMITH: Well, Your Honor, it might. The State of California has not marshaled a shred of evidence to suggest it's true.
Smith elaborated on this point, using some of the study data California submitted to show the effects of violent gaming on kids, and while he definitely makes a good point, Justice Scalia was quick to point out the arguments logical limitations.
MR. SMITH: Well, I guess I can imagine a world in which expression could transform 75 percent of the people who experience it into murderers. That's clearly not the way the human mind works. Here the reality is quite the opposite. Dr. Anderson testified in the Illinois trial, which is in the record, that the vast majority of people playing the games will grow up and be just fine. And in fact, he acknowledged that the effects of these games are not one whit different from watching cartoons on television or reading violent passages in the Bible or looking at a picture of a gun.
JUSTICE SCALIA: You really don't want to argue the case on that ground. I gather you don't believe that the First Amendment reads, "Congress shall make no law abridging the freedom of speech except those that make sense."
Chief Justice Roberts tried to find some clarity with regards to what legislative limits the EMA/ESA believes are applicable to violent games, which lead to Smith raising one of the fundamental problems with any proposed anti-violent game laws.
CHIEF JUSTICE ROBERTS: So your position is that the First Amendment does not, cannot, no matter what type of law, whether this one is vague or not, that the State legislature cannot pass a law that says you may not sell to a 10-year-old a video in which they set schoolgirls on fire.
MR. SMITH: And the reason for that is there is no possible way, it's an insuperable problem, to use the English language to draw an exception to the Constitution, to the First Amendment, that would.
Justice Alito echoed Chief Justice Roberts' line of questioning, asking:
JUSTICE ALITO: Let me be clear about exactly what your argument is. Your argument is that there is nothing that a State can do to limit minors' access to the most violent, sadistic, graphic video game that can be developed. That's your argument -
MR. SMITH: My position is -
JUSTICE ALITO: Is it or isn't it?
MR. SMITH: My position is that strict scrutiny applies, and that given the facts in the record, given the fact that the -- the problem is already well controlled, the parents are empowered, and there are great and less alternatives out there.
On the topic of games existing far outside of the realm of consideration for the signers of the Constitution, Justice Alito couldn't help referencing a rather humorous blurb about the stylized violence-fest MadWorld.
JUSTICE ALITO: But we have here a new -- a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified. It is totally different from -- it's one thing to read a description of -- as one of -- one of these video games is promoted as saying, "What's black and white and red all over? Perhaps the answer could include disposing of your enemies in a meat grinder."
Justice Kagan showed off some keen gamer knowledge when she inquired about why video games should be thought of as something other than simple "games."
JUSTICE KAGAN: Mr. Smith, do you think all video games are speech in the first instance? Because you could look at these games and say they're the modern-day equivalent of Monopoly sets. They are games. They are things that people use to compete. You know, when you think about some of them -- the first video game was Pong. It was playing tennis on your TV. How is that speech at all?
Because "harm to children" is one of the cornerstones of California's case, it was only a matter of time before violent games were somehow equated with some other harmful activity, but...smoking?
CHIEF JUSTICE ROBERTS: So they can't say, example, all the -- all the highest rated videos have to be on the top shelf out of the reach of children. Can they do that?
MR. SMITH: I would think that that's probably not -
CHIEF JUSTICE ROBERTS: That's what they do with cigarettes or something, isn't it?
MR. SMITH: Except that cigarettes are not speech, Your Honor. This is fully protected speech.
CHIEF JUSTICE ROBERTS: I know that cigarettes are not speech, Mr. Smith. Cigarettes are something that we have determined are harmful to children. The question is, you say the record doesn't support the idea that these video games are harmful to children. Some of us may conclude that it does.
MR. SMITH: Well, truly the record doesn't support it. The record says that if -- even if you take the studies at face value, it is not one more whit less more harmful than watching television cartoons. That's what the record shows.
And finally, Justice Alito laid out a bit of an exaggerated take on why the California law is not only poorly designed but also unnecessary.
JUSTICE ALITO: And you say there is no problem because 16-year-olds in California never have $50 available to go buy a video game, and because they never have TVs in their room and their parents are always home watching what they -- they do with their video games, and the parents -- and the video games have features that allow parents to block access to -- to block the playing of violent video games, which can't be overcome by a computer-savvy California 16-year-old, that's why there is no problem, right?
MR. SMITH: I guess if what we are really going to do is judge the constitution of this law based on what 16- and 17-year-olds are getting and whether that would be harmful to them, I think the problem there is the line between 16 and 17 and 18 is so fine, that you are not going to be able to identify any real category of games that fits into that category.