US Supreme Court appears split on California game law

[UPDATE] Hearing arguments, several justices appear sympathetic to law's intent, but say it may be too vague on First Amendment grounds.

This morning, the US Supreme Court heard oral arguments in Schwarzenegger v. EMA, the case that will decide whether a California law banning the sale of "ultraviolent" video games is constitutional. The one-hour session saw the justices of the nine-member panel express sympathy for the intent of the law, but also voice concerns about whether it violates the First Amendment.

The US Supreme Court today heard arguments about California's controversial game law.

According to a transcript of the hearing, California Deputy Attorney General Zackery Morazzini argued the case before the Court, equating ultraviolent games to sexually explicit material, which states are allowed to restrict the sale of. Justice Antonin Scalia, one of the more conservative members of the court, responded with skepticism, pointing out that many children's stories have violent undertones.

"Some of the Grimm's Fairy Tales are quite grim, to tell you the truth" he said. "Are they OK? Are you going to ban them, too? … What's next after violence? Drinking? Smoking? … Are we to sit day by day to decide what else will be made an exception from the First Amendment? Why is this particular exception OK, but the other ones that I just suggested are not OK?"

Justice Ruth Bader Ginsburg, part of the court's liberal wing, echoed her colleague's questioning tone, saying, "What's the difference? I mean, if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books?"

However, Chief Justice John Roberts took issue with the content of Postal 2. "We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they'll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down," he said. "I'm reading from the district court description: Pour gasoline over them, set them on fire, and urinate on them. We do not have a tradition in this country. We protect children from that. We don't actively expose them to that."

As the law's author, California State Senator Leland Yee (D-San Francisco), explained to GameSpot last week, the law at the center of the debate would criminalize sales of games the state deems "ultraviolent." The sale of those games to minors would be punishable by a $1,000 fine under the law. The games would also need to bear special two-inch by two-inch warning labels.

A decision in the case of Schwarzenegger v. EMA is expected by the end of June 2011, when the court recesses for the summer. Entertainment Consumers Association vice president and general counsel Jennifer Mercurio told GameSpot a ruling is most likely to come between March and June.

Whatever the outcome, the legal fight that led to the Supreme Court has been long and hard-fought. Shortly after California Assembly Bill 1179 was signed into law by Governor Arnold Schwarzenegger in 2005, it was challenged in court before it could take effect. In 2007, the circuit court judge who struck down the law as unconstitutional admitted he was "sympathetic to what the legislature sought to do." Last year, an appellate court judge backed up the original ruling.

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Discussion

297 comments
12tone
12tone

@Vegeta-sama -If it's M18+(as opposed to AO) it won't matter if there's full frontal nudity or extreme violence, or fully nude extreme violence. 18-year-olds(Adults) will be able to purchase those games. And developers will be able to make them, even if this law passes. And if the $1000 fine is in place it will keep merchants honest. Besides, the bill keeps minimum-wage game store jockeys off the hook for paying the fine. It's in the bill.

12tone
12tone

@cheater2000- Labeling games M18+ instead of AO would provide for the same net outcome, i.e. eighteen-year-olds (Adults) being able to purchase a game, with none of the stigma associated with an AO rating. It's semantic. And to keep it on topic, I'd still like the law to pass. It's not about the 1st amendment.

cheater87
cheater87

@Vegeta-sama an adult rating is an adult rating if they won't allow one rating why would they allow the other?

JOKER677
JOKER677

nobody cares it will probably help with keepin kids off live and psn anyway

wiouds
wiouds

Great those that do not play games get to pick what games are allowed and what are not.

pontif6
pontif6

poor usa one more law to take away your freedom....(Can we say communist) Its F#%^ing video games people!!!!!!!!!

Vegeta-sama
Vegeta-sama

Cheater I think an M18 lable would be appropriat... it would be extreme violence but lack any kind of true porn... AO would have to be something that had actual porn... and I don't mean a side shot of a tit

Vegeta-sama
Vegeta-sama

no AO is 18 and up... M is 17 and up...if there wasn't a stigma towards AO rated games then more companies would move up to that notch... but most places wont even carry AO rated games

cheater87
cheater87

@ Wogrim If the ESRB slapped AO on these games they would be censored like Manhunt 2 and The Punisher were and banned form sale.

cheater87
cheater87

@ Shadow_Fire41 M is 17 and up AO is 18 and up.

Shadow_Fire41
Shadow_Fire41

my bad, M is 17 and up. anyway, there goes millions of tax dollars down the drain..........again........Arnold isn't exactly helping the economy here.

Shadow_Fire41
Shadow_Fire41

@cheater2000 2 things 1. AO is 21 and up, M is the one that is 18 and up (not insulting you or anything, im somewhat OCD about that sort of thing) 2. because alot of parents these days are idiots (not all, just alot)

dcrabiddog
dcrabiddog

this is going to seem harsh, i want to terminate the terminator from office and power. maybe his wife could do us all a favor and hold a pillow over his face while he sleeps. this is all about control. he is of nazi descent after all it is just his nature. he would protect us from ourselves oh great one where has you gross cigar smoke been all my life. i hate these rich people who think money equals smarts. hell even comon retards like me can read a scientific report this jackass hass an opinion and thinks it's o.k. to make a law. ohhh and watch out if it don't go his way, now he must punish all who disagree. for the children for the children. most children i grew up wioth were teaching eachother the f word and trying to cop there first feel by the age of eight. who are these people kidding? kids are rotten! i was you were we all were accept for the kids we were torturing, they grow up to go into office to protect the children. bleh! gag me with a childhood issue!

cheater87
cheater87

@ 12tone They have an 18 and up rating its called AO (Adults Only) and its banned from stores and consoles to keep a family friendly image why would they allow an M18 rating if AO is not allowed?

cheater87
cheater87

@ gamerpipe That is a great example. Here in the US 18 and up rated media are deemed as porn and here porn is seen as vile and just about all stores don't stock it in order to have a family friendly Christian image. Same would happen with 18+ rated games. Banned from sale and banned from adults since no store would sell them.

MrHatnClogs
MrHatnClogs

I think this stereotype of videogamers being violent is way wrong, it's up to the parents not the government to monitor their kids. Now if you'll excuse me I'm gonna try and get an overkill at my local mall *cocks gun*

gamerpipe
gamerpipe

@DontEatCream I agree with you, also most boosters now are screeching kids. but you know what's wrong with the law? such law in the US will make game titles more childish, COD will be about killing bears for example. because game makers want to sell to larger audience, by having a law, means less customers. and since many US game stores try to appear as family folks . yes lol, they don't sell adult titles and probably won't sell what deemed not for children by this law. ever wonder why many games rated ESRB 17, while in the rest of the world 18+? that's why.

Wogrim
Wogrim

I don't get it. I thought they can't sell M-rated games to kids anyways, like how you have to be 16 (I think?) to go see a rated R movie. It should be the ESRB slapping the Adults Only rating on these "ultra-violent" games though since parents seem to ignore the M rating (every 12-year-old in the world plays a Gears/CoD/Halo/etc).

StArDr1fTeR
StArDr1fTeR

You know, if we just did not have stupid parents this wouldn't be an issue at all. Parents... know what you are buying your kids and actually pay attention. Stop blaming the game industry. Everything has a rating. I say, slap the big 2X2" warning label on the game and end it there. If the game is that bad, just have the employee at the counter warn the buyer of its content, and make sure they want the purchase. It would be like buying porn, cigarettes or alcohol.

starduke
starduke

Since when is it the governments job to decide whether or not the my kids will play Postal 2? Would I let them play it? No. I don't even like it, and have no interest in playing it. But I don't need some law to tell me that it might not be a good game for kids. It is M-rated.

starduke
starduke

@Klofle Yes, but nothing actually dies in Pokemon, they just get KOed. There's no maiming, either. Btw, it's starduke.

robertgkarcher1
robertgkarcher1

@guile295 You've heard of sarcasm right? . . I think your parent would be to blame not Arnold those movies are rated R so as a kid it was up to your parents to decide if they wanted you to watch it .. Arnold has got to be the most hypocritical POS ever. Uh, I'm pretty sure Predator and Commando had all kinds of gory violence and guess what, I was but an innocent little lad when I saw them. Why wasn't there a law to protect me? No wonder I turned out so screwed up! Ah HA! So that's where that little voice in my head comes from!

handofthedragon
handofthedragon

why is this STILL an issue, if the curcuit courts all ruled that this law was UNCONSTITUTIONAL,why in the world would the supreme courts even see this case. And i wonder if M$,SONY and Nintendo are supporting this case?

juliano001
juliano001

First video games, then violent movies, then drinking and smoking, then just one gal in a lifetime, then without red meat forever. Zombie land. Isnt this country great ? If you dont want to see ultraviolent content, just dont buy it. An actual horror movie damage sensible kids a f. ton more than grand theft auto. I severely dislike politicians without agenda. They grab the first thing they see before them and start a cynical crusade.

HaloPimp978
HaloPimp978

It's the parents responsibility, not the ESA they just give out the ratings like rated M is ages 17+ is it really that hard to read the rating on the back of a game box. I have a feeling us gamers will win. Apparently the politicians have nothing better to do there are more important issues to worry about like the economy and the war.

ILOVETACOS101
ILOVETACOS101

What's the point for this law? No matter what, parents will go out and buy violent games for their kids, plus what about rated R movies? I went and saw Paranormal Activity2 in theaters and there was some fat kid in the front row by himself. I know 2nd graders that play Grand Theft Auto, it's wrong, but it's the parents responsibility for there children. It's impossible to keep uber bad games from kids unless you were to monitor every house, so why waste the time to bring this to the supreme court. A-men

pogswarts
pogswarts

I had to lol at the part about Grimm's stories being grim; he forgot to add completely hilarious at the same time.

dtujd2
dtujd2

@12tone: I agree with you and your logic and I also enjoy civilized debate with people who can articulate their thoughts. I think the thing is that the ESRB would probably be ok with coming up with an expanded rating system. I have never heard them state otherwise. And, I doubt retailers, developers, or publishers would have an issue with the M18+ rating, or whatever it's called. It is the concept of making it illegal, combined with a $1,000 penalty, that has what is called a chilling effect on the industry and, by extension, on the 1st Amendment and the freedom of folks to visually express their ideas and thoughts through games. I think the industry could police itself quite well even with an M18+ rating. And, I get that games are much more interactive than anything else out there entertainment wise. But, to put games in a category so different from any other entertainment medium...I think that's going into some dangerous territory there because it opens the door for potential abuse and excessive censorship.

Vengeful_Angel
Vengeful_Angel

Quezakolt, I concur, there are more important issues. Unfortunately, more people prefer to raise concern about bits of data on a disc. As for society, it is not consistent as it should be. Many people are quick to point fingers at one half of an issue, meanwhile play ignorant on the second half.

flawless75
flawless75

THIS LAW WILL NOT PASS!!! THIS LAW IS ****ING CRAZY, IF YOU ARE 17 I THINK YOU SHOULD BE ABLE TO BUY A ULTRA VIOLENT GAME, I MEAN COME ON VIDEO GAMES ARE FICTION!!!!!

12tone
12tone

@dtujd2- Well presented. I appreciate the opportunity to engage in civilized debate, and your thoughts are well presented. I also appreciate your ability to abstract 'what-if' scenarios from a given set of circumstances. Allow me to respond in kind. What if this law is passed and/or the ESRB changes M 17+, to M 18+? Further what if the newly labeled M18+ rating applies to all titles which are deemed ultra-violent? Ostensibly, the newly minted/ redefined M 18+ would carry all of the prohibition as and AO rating, but none of the stigma. This mechanism could allow for the continued development/distribution of games with adult themes or content, and would align with the legal(?) definition of adulthood.

Quezakolt
Quezakolt

Seriously, the big problem in this is that news media - tv news, radio, newspapers, news websites have content that is described in disturbing, explicit ways. That content is "real", not fiction. When I can hear everyday on tv descriptions of rapes and murders, and after that I watch a TV Show which they put a warning before it, and that the content of the TV show is way tamer than the repetitive, mind-bending and sanity-affecting news media, I can't help but shrug. Yes there is a thing as going too far, but seriously there is a whole society-debate that needs to be done with much larger issues.

dtujd2
dtujd2

@12tone: I don;t know if I had a stake, per se, but I see your point. I think what concerns many 1st Amendment advocates here is the ripple effect this could have on the 1st Amendment. True, there is nothing in the law that prohibits game developers from making an ultraviolent game (and I think we all agree that no one knows what that term is supposed to mean). But, let's follow this to a logical conclusion. If it is illegal for a retailer to sell one of these games with an "18" sticker on it to minors, it is possible that retailers will shy away from selling any game with such a label on it for fear of a $1,000 penalty. Now, you have created a classification of games that have a similar stigma as an AO game. In turn, developers begin to change the way they make the games, or they way they express their ideas, or the type of stories they are telling because if it gets dinged with an 18 label, no one will carry the game. The publishers need to make money so they start pressuring the developers to "tone it down" or to compromise their visions and ideas. This scenario is a very, very real possibility in my opinion. In any case, that is where I see the 1st Amendment being involved here.

Yajarobi
Yajarobi

what game can I pee on my victims burning corpse? I want to play that game

pidow
pidow

Common sense should prevail, why not band booze, it does more harm that good?, but it will never happen, theirs a fine line between protecting ones rights on one hand and allowing it abuse on the other. Booze, has cause more destruction of families, caused more loss of life, than any video game could EVER cause. Parents with unstable children should not be allowed to purchase video games period. The monitoring of one children rest on the parents, not government, government is incapable of dealing with matters such as this....hell they can not balance a budget(California), so why should they be allowed to govern peoples entertainment. If a child is mature enough, than let him/her play the game period.

12tone
12tone

@dtujd2- No offense taken. I read your blog two months ago. You had the same position then as you do now. In addition, if I remember correctly, you also had a personal stake in whether or not the law passed. Something along the lines of opening a gaming boutique? One those grounds if you were a SC Justice you'd be expected to recuse yourself from this case because of a conflict of interest, right? I also read the bill. It ensures that developers and publishers can make games as they see fit. (That is not a violation of the 1st Amendment.) It's no different than movies, cigarettes, or booze. Manufacturers can manufacture, adults can purchase.

Darth_Ultima
Darth_Ultima

@KotickIsGenius If you are really concerned with the morality of our youth then maybe you should be more concerned that parents do there job to raise their children and pay attention to what there children are doing then making the government do their job for them. In my experience the current voluntary system works. I am almost thirty and I get my ID checked when I buy M-rated games. The only way kids get violent video games is if the parents buy it for them. Under this bill that is still going to happen. This bill will do nothing to change that. Maybe you should also be concerned about who will be deciding what needs to be censored and what doesn't and the fact that that process is going to use tax dollars for an unnecessary wasteful government censorship agency, so this bill is a waste of government resources. In addition there is no proof positive link that M-rated games cause kids to become violent. The current studies only prove that it causes increased aggression. Well so does football. Any competitive activity increases aggression. That's what competition is all about. You going to ban football too. In conclusion this bill is a waste of tax dollars and is unnecessary. I support keeping young children from playing M rated games but I believe that is the parents job and not the governments. I also wholeheartedly opposed any form of government censorship. This bill creates a slippery slope and sets a bad precedent.

VenkmanPHD
VenkmanPHD

In my dead honest opinion I think we should expose children to as much "ultra-violence" as early and as often as possible. While we are at it, throw in sex, drugs, and anything else society has deemed "Inappropriate for children." And yes, I'm DEAD serious. I was never censored from anything, and I intend to do the very same to my children because if anything, it urged me to understand more about these kind of things at an earlier stage of life. As we all know, children learn things much faster than if they were older. The ONLY, and I repeat this ONLY difference is that the parent has to get off their lazy ***es and teach the kid what is right and wrong.

Saint_Francis
Saint_Francis

Certain portions of politics and religion aren't any better than ultra-violent video games. A simple search in history will reveal extreme levels of violence in politics and religion aimed at self preservation and control. Why don't we ban those as a society or at the very least shield minors against those establishments before their brains aren't mature enough to know what they're being forced into. I believe any video game made for an adult audience should be treated as such at the point of sale. They shouldn't be sold to minors. Minors will still become exposed to them, as they will pornography, but that become another issue as the developers and retailers did their due diligence. Where are the parents in all this?

PHOENlXZERO
PHOENlXZERO

Okay, reading some of those other points, I can't decide whether you're just clueless or a troll.... Maybe both, Jack is that you???

zerospecterpunk
zerospecterpunk

I have decided that I'm going to kill a bunch of people because I learned about it in my history classes.

Sorkvir
Sorkvir

[This message was deleted at the request of the original poster]

berto64
berto64

there split,seriously,i would think that it would be a one day thing,but this is gettin awkward,and its so amusing,but lets just wait untill 2011,untill then well lets just enjoy ourselves

dagrimmreepa
dagrimmreepa

This is such BS and a result of parents not knowing how to control their children. No one forces them to play Postal 2 (Cat-Silencers FTW, btw), and these kids live with their parents, is it really so hard to take some initiative and make a few house rules? By the way, I've been playing games like Quake since I was 7, I turned out alright, I can honestly say that I have never beaten a schoolgirl to death with a shovel and then urinated on her. Anyone with any brains would know that a hammer works better; it's got more mass in a single point, making for a more focused and vicious blow.

y0ur_grandma
y0ur_grandma

Ok, let's let the parents make sure what games they get, keep the government out of our business. This law is useless.

Graumonk
Graumonk

@KotickIsGenius You mean... the military, which tends to aim 99.9% of it's recruitment ads at teenagers (and parents of teenagers) would advertise at places that teenage boys tend to go? Or in the magazines they tend to read? That's about as shocking as a Budweiser commercial during a NFL game or a Toys R Us commercial during the Saturday morning cartoons.

Vengeful_Angel
Vengeful_Angel

Kotick, this is news to me. And just how many recruitment ads are not in magazines? :/

KotickIsGenius
KotickIsGenius

@Darth_Ultima Not sure where Kotick stands on this, but he is in the business of selling games ...so yeah , I could see why he would be against it. I'm more interested and concerned in the morality of our younger generation.