By Marie-Andrée Weiss
The U.S. Supreme Court agreed this week to review next term the constitutionality of a California law prohibiting the sale of violent video games to minors, Schwarzenegger v. Video Software Dealers Association (08-1448).
This law was to take effect on January 1, 2006, as new California Civil Code §§ 1746-1746.5, but the Video Software Dealers Association and the Entertainment Software Association challenged it as violating the Free Speech Clause of the First Amendment, which is made applicable to the states through the Fourteenth Amendment.
A district court permanently enjoined enforcement of the law, and the State of California appealed. The Ninth Circuit affirmed the district court judgment, and the Supreme Court granted certiorari on April 26, 2010.
First question presented to the SCOTUS: Does the First Amendment bar a state from restricting the sale of violent video games to minors?
The first question that was presented to the Supreme Court is whether the First Amendment bars a state from restricting the sale of violent video games to minors.
The California law prohibits the sale of violent video games to minors if “a reasonable person, considering the game as a whole, would find [that it] appeals to a deviant or morbid interest of minors.”
This is not the first time that the Supreme Court must consider whether the definition by a state law of what constitutes material unprotected by the First Amendment, may vary according to the group to whom the material is directed. In Ginsberg v. New York, 390 U. S. 629 (1968), the Supreme Court held that a New York criminal obscenity statute could prohibit selling materials to minors even though these materials were not considered obscene for adults.
Variable obscenity standard
Obscene material, which is not protected by the First Amendment, is defined as whether, to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest of a person. This definition is similar to the wording of the California video game statute.
In Ginsberg, the Supreme Court applied a “variable” standard for obscenity. The State could bar selling to minors material defined as obscene on the basis of its appeal to minors (Ginsberg, at 631), because there is an important state interest in protecting the welfare of minors. The State of California argued in front of the Ninth Circuit that this variable standard should apply as well to the regulations of violent videos sold to minors.
Strict scrutiny standard
However, the Ninth Circuit refused to apply that variable standard, and applied instead the strict scrutiny standard, Video Software v. Schwarzenegger 556 F.3d 950, 2009. According to the Ninth Circuit, the California Act must be narrowly tailored to promote a compelling Government interest, because it is a content-based restriction. If a less restrictive alternative is available, the legislature must use that alternative, United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, (2000).
Should the depiction of violence become a new category of unprotected speech?
The governor of California argued in his petition for a writ of certiorari that the Ginsberg “variable obscenity standard” should apply to extremely violent material because such material “can be obscene as to minors, even without a sexual element.”
Obscenity is not protected by the First Amendment. However, violent video games, if devoid of sexual content, are a protected form of speech. For instance, the Eighth Circuit held that videos “contain[ing] violence but not depictions or descriptions of sexual conduct cannot be obscene,” Video Software Dealers Association v. Webster, 968 F.2d 684, 688 (1992).
In U.S. v. Stevens (08-769), the Supreme Court refused this month to add the depiction of animal cruelty to the list of the few categories of speech which may be disqualified as speech. Just as some video games merely portray violent acts, the federal statute which was held unconstitutional in Stevens only criminalized the portrayal of animal cruelty, not the actual acts of cruelty, which are indeed unlawful in all 50 states and in the District of Columbia.
The “exception clause”
The Government had argued in Stevens that the Supreme Court should use a balancing test, measuring the value of the speech against its societal costs, to determine whether such speech should be protected by the First Amendment. Indeed, the Government was seeking the total ban of depiction of animal cruelty, except if, under an “exception clause,” such depictions had “serious religious, political, scientific, educational, journalistic, historical or artistic value.”
While the Supreme Court had held in Miller v. California, 413 U.S. 15 (1973) that having a “serious” value shields depictions of sex from being considered obscene, the Supreme Court was careful in Stevens to explain that the mere determination of some material having “serious” value cannot be used “as a general precondition” to protect other types of speech as obscene speech, and thus such clause was not sufficient to narrowly tailor the statute.
The federal “exception clause” at stake in Stevens was similar to the wording of the California law, forbidding the sale of violent video games to minors only if such games lack “serious literary, artistic, political or scientific value for minors.” It is thus likely that the Supreme Court will also consider next year the California “exception clause” as being insufficient to narrowly tailor the statute.
Second question presented to the SCOTUS: Is the State required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors in order to prohibit the sale of violent games?
The second question presented to the Supreme Court is whether, if indeed the standard to apply is the strict scrutiny standard, the State must demonstrate a direct causation between violent video games and the resulting harm to minors.
California had passed the Act because it was concerned about the actual harm to the brain of the child playing video games. Protecting the well-being of minors is indeed a compelling interest, Sable Commc’ns of Cal., Inc., 492 U.S. 115, 126 (1989). However, in Turner Broadcasting System, Inc., 512 U.S. 622 (1994), the Supreme Court had held that, when seeking to restrict speech, the Government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Id., at 664.
The Ninth Circuit was not convinced by the evidence of harm presented by the State, as this research was based on correlation, not evidence of causation. Since the State failed to prove direct causation, it also failed to demonstrate the existence of a compelling Government interest.
The State cited Turner Broadcasting System in its petition, but argued that the Supreme Court had also held in this case that ”a court must accord substantial deference to the predictive judgments of Congress.” Id., at 665. Therefore, according to the petitioner, a state’s predictive judgments must be upheld so long as a court finds that “in formulating its judgments, [the state] has drawn reasonable inferences based on substantial evidence.” It is doubtful that the Supreme Court will be convinced by these arguments.
In conclusion, it is very unlikely, in spite of the changes ahead in the composition of the Supreme Court, that violent video games will no longer be protected as speech. Instead, parent warnings and voluntary rating systems will probably continue to be employed to protect minors from ill effects of violent games.