The videogame industry's a big business -- and sometimes, companies don't see eye-to-eye. And what happens when a dispute goes to court, and gamers get their grubby hands on fancy-sounding legal documents? Why, wild, inane, forum-fueled speculation, of course. That's where California-based corporate attorney and GameSpy freelancer Eric Neigher comes in. Objection! is your one-stop destination to learn what all that legalese means in plain English, straight from someone who knows the twisty-turny language of the law.
Intro
You might not have heard about this, but California is trying to ban the sale of violent videogames to minors. Completely. Like, you will get fined and maybe even go to jail if you do it -- doesn't matter if the box displays a rating or if the kid has ID or whatever.
Yup. The State passed a law, Civil Code Sections 1746-1746.5 (we'll call it "the Code" from here on out), making it a crime to sell games that the Code describes as "violent" (more on how it defines that standard in a second) to anyone under the age of 18, regardless of circumstances. This obviously kinda sucks for minors -- unless, of course, you believe that exposure to violent games is the scourge of our youth. But, either way, it really sucks for videogame manufacturers, retailers, and just about anyone who is afraid of being arrested for buying Doom II on Xbox Live.
Left-handed people are more likely to be violent offenders. It's science (no, we made that up).
As a result, a couple of groups representing the interests of videogame retailers -- the Entertainment Software Association and the Video Software Dealers Association -- sued the state (represented by Governor Arnold Schwarzenegger and Secretary of State Edmund Brown), claiming that the Code violates the First Amendment of the Constitution.
The case went back and forth in the District and Appellate courts, and now it's under consideration in the Supreme Court of the United States (SCOTUS), where the ultimate fate of the law will be decided. So, let's figure out what the hell is really going on here... and decide just how we, as gamers, would like the axe to fall.
Facts
First and foremost, you're gonna need some background information for all this to make sense. I'm going to assume you have the knowledge of the average, fairly educated American and know what the Constitution is, and understand what it's supposed to be doing (and you really ought to read the whole thing if you haven't already). I assume you know, for example, that the First Amendment to the Constitution prohibits (among other things) the state from restricting the freedom of speech -- a freedom by which all artistic expression (including videogame design) is protected.
The instruction manual to the USA. I know you're a gamer, and gamers don't read instruction manuals -- but please, make an exception in this case.
However, if you've been keeping up with these columns, you know that it's never as simple as just looking at the Constitution and finding the answer. We're going to need to look at the Code in some detail, and then we're going to have to look at some of the existing case law that both sides are saying SCOTUS should apply to determine whether or not the Code is constitutionally acceptable.
But I'm getting slightly ahead of myself here. It's important to establish one thing first: In the U.S., SCOTUS has a power called "judicial review." That means those nine dudes and dudettes get to decide whether or not a law conforms to the Constitution (they can't do this for any law, just ones that fit certain criteria... but that's for a whole other article). If the law conforms, everything's a-OK, and the police in your town start enforcing it. If it doesn't, SCOTUS strikes it down and the legislative body that created it has got to go back to the drawing board or give up trying to regulate that particular area.
No, you can't have your own law.
And that's what's going on here: The case is called Schwarzenegger v. Entertainment Software Association, and the question is whether or not the Code violates the First Amendment's prohibition on the state infringing the right of freedom of speech.
So, does it? Well, we're gonna need a bit more info yet, so bear with me. First off: What does the law actually say? Feel free to read up on it if you want the nitty-gritty details, but the gist is that retailers are subject to fines of up to $1,000 per game for each "violent" videogame they sell to a minor. More definitions, right? OK: A "minor" is somebody under 18 years of age. That's the easy one. "Violent" is a bit more challenging. The Code defines a violent videogame as: "one that depicts killing, maiming, dismembering, or sexually assaulting the image of a human being" (apparently it's OK to do it to images of aliens and animals -- don't take our Big Buck Hunter away, Governator!). Additionally, the game as a whole has to meet the following conditions to be banned from salability to minors:
- 1) A reasonable person would find that it appeals to a "deviant or morbid interest."
- 2) It is "patently offensive" to what community standards would say is appropriate for minors.
- 3) It lacks serious literary, artistic, political, or scientific value for minors.
Yeah, screw you, bear!
Before we move on to the actual analysis, you'll need to know a couple of other points. First, this law was already held to be unconstitutional by both the original trial court (the U.S. District Court) and the Ninth Circuit Court of Appeals (the two levels of courts below SCOTUS). Both lower courts agreed that the Code was attempting to create "a content-based regulation of protected speech." What the hell does that mean?
It's Con(stitutional) Law 101 time, folks. See, when it comes to judging whether or not a law or regulation is constitutional, the courts generally apply one of three standards of review, based on what sort of right is being regulated. For clarity's sake, I'm only going to talk about the one apposite standard of review in question here, and leave the other two for later.
So, when a law is regulating a fundamental right (that is, a right that inheres in all human beings everywhere and always, regardless of circumstances), that law can only be proper if it regulates the right in the least restrictive way possible and does so only because the state has a highly compelling interest in restricting the right. This type of review is known as "strict scrutiny," and it's applied in virtually all cases to any and all First Amendment-related laws.
Again, just to make the mumbo-jumbo here clear: The lower courts held that although the state did posit a compelling interest (protecting the lily white minds of our nation's kids) when it enacted the Code, it did not show a causal relationship between the provisions of the Code and that interest. In other words, the state didn't prove that stopping people from selling these violent games to kids would actually protect them. The courts also held that the state failed to demonstrate that these regulations were the least restrictive means by which it could achieve its goals, even if the causal relationship had existed.
Phew! Still with me on this? For the record, very, very few laws have ever survived a strict scrutiny analysis by the courts. Typically, once strict scrutiny is triggered for a regulation, that law is toast.