Judges Say The Funniest Things

Last night saw the first hearings in the case known as Schwarzenegger vs EMA, which concerns the Governator's attempt to bring about a US-wide ban on the sale of violent video games to minors. Which sounds eminently reasonable, save for the fact that the US already has the ESRB ratings system, which anyone with even an eighth of a brain uses and enforces effectively. This law would remove all parental responsibility concerning what games their kids can play, and instead make it a criminal offence for retailers to sell adult-rated games to under 18s - as well as effectively putting the judgment as to which games contain "deviant violence" in the capricious hands of state authorities.

While the case for the defence has been that this contravenes First Amendment rights regarding freedom of speech, the real problem is that notoriously conservative mega-chains like Walmart would likely refuse to stock adult-rated games at all (considering them pretty much up there with hardcore porn), which means sales will plummet and publishers will focus efforts on family-friendly stuff instead. Much as it's enormously important to ensure kids don't have easy access to games with violent or saucy content, we really don't want our choice of games to diminish sharply as a result. Fortunately, California's arguments appear to be vague, contradictory and poorly thought-out, which a number of US Supreme Court judges quickly caught onto...

Clearly not taking attorney general Zackery Morazzini's confused statements entirely seriously, several of the Justices elected to do a little improvised comedy instead. The full court record is embedded at the bottom, but here's a few highlights:

Justice Scalia: What’s a deviant violent video games? As opposed to what? A normal violent video game?
Morazzini: Yes, your honor. Deviant would be departing from established norms.
Justice Scalia: There are established norms of violence? … Some of the Grimm’s fairy tales are quite grim, to tell you the truth.
Morazzini: Agreed, your honor. But the level of violence ….
Justice Scalia: Are they okay? Are you going to ban them too?
Morazzini: Not at all, your honor.

Justice Ginsburg: 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? Grimm’s fairy tales? Why are video games special? Or does your principle extend to all deviant, violent material in whatever form?
Morazzini: No, your honor. That’s why I believe California incorporated the three prongs of the Miller standard (for identifying porn in legal cases). So it’s not just deviant violence. It’s not just patently offensive violence. It’s violence that meets all three of the terms set forth in … 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.

Justice Kagan: Well, do you actually have studies that show that video games are more harmful to minors than movies are?
Morazzini: Well, in the record, your honor, I believe it’s the Gentile and Gentile study regarding violent video games as exemplary teachers.
Justice Kagan: Suppose a new study suggested that movies were just as violent. Then, presumably, California could regulate movies just as it could regulate video games?

Justice Sotomayor: 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. So can the legislature now, because it has that study, outlaw Bugs Bunny?
Morazzini: No.

Justice Scalia: That same argument could have been made when movies first came out. They could have said, oh, we’ve had violence in Grimm’s fairy tales, but we’ve never had it live on the screen. I mean, every time there’s a new technology, you can make that argument.

Justice Sotomayor: Could you get rid of rap music? Have you heard some of the lyrics of some of the rap music, some of the original violent songs that have been sung about killing people and other violence directed to them?

Justice Ginsburg: Part of this statute requires labeling these video games in big numbers "18." So it's 18 and California doesn't make any distinctions between 17-year-olds and 4-year-olds.

Justice Scalia: I’m concerned about the producer of the games who has to know what he has to do in order to comply with the law. And you’re telling me a jury can — of course, a jury can make up its mind, I’m sure. But a law that has criminal penalties has to be clear. And how is the manufacturer to know whether a particular violent game is covered or not? Does he convene his own jury and try it before — you know I really wouldn’t know what to do as a manufacturer.
Morazzini: 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.

Justice Kennedy: It seems to me all or at least the great majority of the questions today are designed to probe whether or not the statute is vague. And you say the beauty of the statute is that it utilizes the categories that have been used in the obscenity area, and that there’s an obvious parallel there. The problem is that for generations there has been a societal consensus about sexual material.

Justice Scalia: I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment. …What’s next after violence? Drinking? Movies that show drinking? Smoking?

Justice Breyer: This court has held in one instance that courts can regulate fighting words. We regulate fighting words? Don’t we?
Morazzini: Absolutely.
Justice Breyer: Because they provoke violence.

Justice Scalia: You should consider creating such a one (advisory office). You might call it the California Office of Censorship. It would judge each of these video games one by one. That would be very nice.
Morazzini: Your honor, we ask juries to judge sexual material and its appropriateness for minors as well. … California is not acting as a censor. It is telling manufacturers and distributors to look at your material and to judge for yourself.

Justice Kagan: Do you think Mortal Kombat is prohibited by this statute?
Morazzini: I believe it is a candidate. But I haven’t played the game and been exposed to it sufficiently to judge for myself.
Justice Kagan: I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing [it].
Justice Scalia: I don't know what she's talking about.

Justice Kagan: Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?
Morazzini: No, it wouldn’t, because the act is only directed towards the range of options that are able to be inflicted on a human being.
Justice Sotomayer: So if the video producer says this is not a human being, it's an android computer simulated person, then all they have to do is put a little artificial feature on the creature and they could sell the video game?
Morazzini: Under the act, yes, because California's concern, I think this is one of the reasons that sex and violence are so similar, these are base physical acts we are talking about, Justice Sotomayor. So limiting, narrowing our law here in California, there in California to violence = violent depictions against human beings.
Justice Sotomayer: So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven't been maimed and killed forever. Just temporarily.

ZING. Many times over.

Unfortunately, Chief Justice Roberts was hung up on Postal 2, a notoriously violent/dumb game from 2003, which he seemed to believe was endemic in games in general:

Chief Justice Roberts: We do not have a tradition in this country of telling children they should watch people actively hitting school girls over the head with a shovel so they’ll beg for mercy, being merciless and decapitating them, shooting people in the leg so they fall down, pour gasoline over them, set them on fire and urinate on them. We protect children from that.

So while the hearing looks to be pretty positive for the games industry (and games players), there's still a risk that poor understanding and lousy research on the matter could cause a problem. We won't find out for a some time what the decision is - possibly not until June.

Here's the full document, if you fancy getting the complete picture: