The representative from the state of California, Mr. Zack Morazzini, presented his group's argument first, starting off his presentation with an allusion to the Supreme Court case of Ginsberg v. New York -- as we learned he would yesterday in our interview with ESA general counsel Kenneth Doroshow. However, it didn't take long for the Justices to begin picking the state's argument apart.
Justice Scalia chimed in during the presentation, asking Morazzini to define exactly what a "deviant violent video game" is, playfully adding "Some of the Grimm's fairy tales are quite grim, to tell you the truth," later adding, "are you going to ban them too?"
From there, Justices Ginsberg and Roberts began questioning Morazzini as to why the law only covers video games, and not all forms of media featuring "patently offensive violence."
You are asking us to create a -- a whole new prohibition which the American people never -- never ratified when they ratified the First Amendment."- Justice Kennedy
"The California legislature was presented with substantial evidence that demonstrates that the interactive nature of violent -- of violent video games where the minor or the young adult is the aggressor, is the -- is the individual acting out this -- this obscene level of violence, if you will, is especially harmful to minors," Morazzini responded.
The Justices didn't seem particularly responsive to the studies Morazzini went on to cite, with Justice Sotomayor stating, "One of the studies, the Anderson study, says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video," adding, "so can the legislature now, because it has that study, say we can outlaw Bugs Bunny?"
Justice Kagan later returned to Justice Scalia's original query, asking Morazzini to define exactly what the law means by "deviant violence," to which counsel responded, "Well, Your Honor, I think a jury could be instructed with expert testimony, with video clips of game play, and to judge for themselves whether ..."
Justice Scalia interrupted, stating he wasn't concerned with juries, but rather, how the decision would affect developers, publishers and retailers, to which Morazzini responded, "I am convinced that the video game industry will know what to do. They rate their video games every day on the basis of violence. They rate them for the intensity of the violence."
Morazzini moved on to defining excessive violence as obscenity, as it is defined in terms of sexual content -- which is not protected under the First Amendment. The Justices also took umbrage with this.
"You are asking us to create a -- a whole new prohibition which the American people never -- never
ratified when they ratified the First Amendment," Justice Kennedy said. "They knew they were -- you know, obscenity was -- was bad, but -- what's next after violence? Drinking? Smoking? Movies that show smoking can't be shown to children? Does -- will that affect them? Of course, I suppose it will."
"You are asking us to go into an entirely new area where there is no consensus, no judicial opinions. And this is -- and this indicates to me the statute might be vague," Justice Kennedy said.
"My position is that there is not a violence exception to the First Amendment for minors and there should not be."- ESA counsel Paul Smith
Entertainment Software Association counsel Paul Smith then took the floor to present the argument for the EMA, and began picking apart the obscurity of the terms set forth by the California legislation.
"California, as we have heard today, does not seriously contend that it can satisfy the usual First Amendment standards that apply to such a law," Smith said. "Instead it's asking this Court to grant it a new free pass, a brand-new Ginsberg-like exception to the First Amendment that would deny constitutional protection to some ill-defined subset of expressive works, and I submit not just video games, but necessarily movies, books and any other expressive work that describes or portrays violence in a way that some court somewhere, some day, would decide is deviant and offensive."
The Justices then questioned Smith on the parallels between this case and Ginsberg v. New York, as introduced by the California representative's argument. Smith responded that in the latter case, the decision was reached after considering science on both sides of the argument, as well as the common sense of what constitutes sexual obscenity.
"Why isn't it common sense to say that if a parent wants his 13-year-old child to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence upon small children and women and do this for an hour or so," Justice Breyer inquired, "why isn't it common sense to say a State has the right to say, parent, if you want that for your 13-year-old, you go buy it yourself, which I think is what they are saying?"
Breyer also stated concerns that the American Psychological Association, the American Pediatric Association and others have thrown their weight behind California, adding "If I can say could a legislature have enough evidence to think there is harm, the answer is yes."
Smith moved his argument over to the unnecessary nature of the law, citing the number of defenses parents and the industry have as a whole to prevent minors from playing too-mature games, such as ESRB ratings, parental control settings and the fact that games, at their current price, are a tad too expensive for your average minor.
"You are away from the common sense," Justice Breyer interrupted. "What common sense is there in having a state of the law that a State can forbid and says to the parent that the child, the 13-year-old, cannot go in and buy a picture of a naked woman, but the 13-year-old child can go in and buy one of these video games as I have described? I have tried to take as bad a one as I could think of, gratuitous torture of children. Okay. Now, you can't buy a naked woman, but you can go and buy that, you say to the 13-year-old. Now, what sense is there to that?"
"We do have a new medium here, Your Honor, but 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."- Paul Smith
Smith defended his position, stating violence has always been a part of the media consumed by our nation's youth. "We do not -- the difference is we do not make films for children in which explicit sex happens," Smith explained. "We do make films for children in which graphic violence happens."
Chief Justice Roberts questioned his argument, citing some of the more graphic gameplay sequences of Postal 2
. "So is it your position that the First Amendment could not prohibit the sale to minors of the video game that I just described," Chief Justice Roberts added.
"My position is that there is not a violence exception to the First Amendment for minors and there should not be," Smith replied.
The court again pressed Smith on whether the state could produce any scientific evidence to support a First Amendment exception for violent video games, to which he responded, "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."
The Justices were a little hesitant to accept the argument that the First Amendment protections should be unquestionable, with Justice Alito saying, "we have here a new -- a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified."
Smith responded to this worry, saying, "We do have a new medium here, Your Honor, but 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."
The Justices also questioned Smith on the narrative factor of games -- whether they should be considered First Amendment protected speech because they possess narrative which sets them apart from "Monopoly." Smith agreed with this position wholeheartedly.
"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," Smith said. "That's what makes them different and in many ways wonderful."