An important test of a 2005 California law that prohibits the sale of violent video games to minors was reviewed by the Supreme Court on Tuesday, November 2.
The law based in part on the definitions of pornography in past legal cases, explains that a violent video game is one in which “the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being,” in a manner which is “especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.” The vendor selling the game could be subject to a $1,000 fine.
The law never took effect because lower courts found it violated free-expression rights. In a 2009 ruling, a federal appeals court in San Francisco said that there was no proof video games caused violent behavior, or that the games affected minors differently from adults.
In the Supreme Court hearing Paul M. Smith, Esquire, arguing on behalf of respondents, agreed with the lower courts’ ruling. “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,” said Smith. “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.”
The justices pointed out that there was a new medium, which meant the rules had to be interpreted to apply the rule of law to games for the first time. Smith made the point that every generation thinks there’s a new medium that is unique, stating:
…we have a history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling, our children are all going to be turned into criminals. It started with the crime novels of the late 19th century, which produced this raft of legislation which was never enforced. It started with comic books and movies in the 1950s. There were hearings across the street in the 1950s where social scientists came in and intoned to the Senate that half the juvenile delinquency in this country was being caused by reading comic books, and there was enormous pressure on the industry. They self-censored. We had television. We have rock lyrics. We have the Internet.
Justice Kagan was confused by how video games could even be a part of free speech. Of particular interest to role-players is Mr. Smith’s explanation:
The games that we are talking about have narrative, events that are occurring, characters, and plot. That is exactly what the State has set out to regulate here. It says if these events occur here — there is violence, one person is hurting another person — it has to be a human being who is the victim — and is doing it in a way that they find offensive in some way, we are going to regulate it…the events in a video game — what happens in the plot is a combination of what the game gives you and what the player adds to it. There is a creative aspect coming at it from the other side. It’s often referred to as a dialogue between the player and the game. I would submit that both are completely protected by the First Amendment. The child is helping to make the plot, determine what happens in the events that appear on the screen, just as an actor helps to portray what happens in a play. You are acting out certain elements of the play and you are contributing to the events that occur and adding a creative element of your own. That’s what makes them different and in many ways wonderful.
In essence, the Supreme Court is reviewing what happens when players role-play acts that are considered evil: heinous, cruel, or depraved.
Justice Sotomayor questioned what an “image of a human being” is defined as. She used the example of a Vulcan being maimed and tortured. Mr. Zackery P. Morazzini, Esquire, Supervising Deputy Attorney General, Sacramento, California, responded that Vulcans wouldn’t be covered because Vulcans aren’t “human beings.” Sotomayor went after Morazzini, explaining that in-game avatars can be tweaked to not look human and easily skirt the law.
In role-playing game parlance, this essentially means that a game depicting raping a human would be subject to the fine but a game depicting the rape of an elf would not. The California law’s distinction, which Sotomayor correctly pointed out, is apparently the difference in the shape of the victim’s ears.
This may all be moot of course. Video game sales are increasingly online and the California law is concerned with in-store sales. The legal challenge became outdated by the time it was brought to court, and the judicial system is having difficulty keeping up. When Justice Kagan mentioned Mortal Kombat (incorrectly spelled “Combat” in the transcript), Justice Scalia interjected, “I don’t know what she’s talking about.”