The video game 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 writer 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.
Introduction
By now, you've surely heard tell of the U.S. Supreme Court's (hereinafter SCOTUS) decision in the Brown v. EMA case: Selling violent video games to kids is protected speech. It's a victory for freedom of speech, and for the games industry as a whole, to be sure -- but the decision has some larger implications for all of us as Americans (and if you're not American, it might have an indirect effect on your courts' mindsets too, so don't think you're unaffected), and I want to discuss some of those with you. I'm also going to take a little time to break down not only the majority opinion, but also the consenting opinion and the two dissents. So just sit back, relax, and prepare to be LAWYERED UP!
Facts
So, just for those of you that have missed my two other articles on this subject, and are also living under a rock being sat on by a camel in the Saudi desert in the middle of a never-ending sandstorm, the state of California, back in 2007, passed a law saying that certain video games (those with extremely violent content and no "artistic merit") could not be sold to minors. Stores that sold such games to minors (and which games would be tagged with this imprimatur was up in the air) would incur fines, possibly to the tune of $1,000 per instance.
Both the U.S. District Court (the lower court) and the 9th Circuit Court of Appeals (the middle court) said that the California law was unconstitutional, and Justice Antonin Scalia -- writing for the majority of the SCOTUS -- agreed with them. Three other justices joined his opinion, while two (Chief Justice Roberts and Justice Alito) wrote what's called a "concurrence," and two others (Justice Thomas and Justice Breyer) each wrote their own dissenting opinions. In case you don't know, when justices "concur" with the majority, it means they agree with the ruling, but for different or more robust reasons than the majority gives. Those justices that concur get their votes counted with the majority, which in this particular case means that the total score was 7-2 against the California law's constitutionality. I'll get to what the concurrences and dissents were about in a second, but I figured you'd want to know what the concept means in the first place.
Good news: This is still totally fine!
So, before we get into the whys and wherefores, it's worth discussing what this means for California (and for the country at large). The ruling effectively means that the status quo ante is going to be in place: Game retailers cannot be held criminally liable for selling violent games to kids, even knowingly. The ESRB will still be the primary determining factor in rating games, and stores still have only a voluntary responsibility to carry ESRB-rated games and abide by their rules. The market itself will handle enforcement, just as it has done before the California law was passed. Essentially, nothing changes.
Analysis
So, now that everything's back to normal for us gamers, let's take a look at why the judges did what they did -- and what the larger implications might be for free-speech regulation and video game laws in general.
If you recall from previous Objection! installments, California had argued that violent video games need to be regulated because studies show that they cause psychological harm to children, and because they're "obscene" (obscenity regulations having been previously allowed by SCOTUS). Justice Scalia said that neither of these two things was sufficiently true with regard to violent video games. The evidence, he said, was rather scant and generalized, and the obscenity relation didn't hold water. According to Justice Scalia, this is because obscenity -- in the context SCOTUS defined in the earlier case -- refers only to pornographic/nudity-type stuff, not to violence. His reasoning was that the U.S. has had a long history of regulating, either by community standards or by actual laws, nudity and porn and the exposure of such to children, but has not had a similar history with regard to depictions of violence. He compared instances of graphic violence in the Bible and in Dante's Inferno (neither, perhaps, books intended directly for children), and asked: Since communities certainly have no qualms about letting those go through unregulated, why should video games -- simply a different medium -- not enjoy the same free-speech protections?