The oral arguments in the Supreme Court case deciding the fate of a California law that would punish stores selling certain content to children were heard today, and the transcripts are now available online. It sounds like it was a lively day in court, with the Justices grilling both sides.
All in all, it did not go smoothly for the state of California. While there were some arguments about why the states could in fact keep violent games from children, there were more troubling questions raised about how to define deviant violence, why games should be legislated and Bugs Bunny should not, and the danger of all forms of media coming under government scrutiny.
Zackary Morazzini, the supervising deputy attorney general of California, argued that the government should, in fact, have a say in what violent media can be sold to minors. The issue is games that are not just violent, but feature deviant violence. He was then asked if there are any kind of established norms for violence. Of course none exist. He was also asked if fairy tales should be banned, as they also have high levels of violence.
"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?" Justice Ruth Bader Ginsberg asked. "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 argued that studies show violent video games are harmful to children. Justice Sonia Sotomayor pointed to a study in evidence that showed Bugs Bunny cartoons had the same effect as violent video games and asked if California should ban those as well. Would California begin censoring movies and music if similar studies could be found showing that the media is harmful to children?
The vulcan defense
And then there was this surreal exchange:
JUSTICE SOTOMAYOR: Would a video game that portrayed a Vulcan, as opposed to a human being, maimed and tortured, would that be covered by the act?
MR. MORAZZINI: No, it wouldn't, Your Honor, because the act is only directed towards the range of options that are able to be inflicted on a human being.
JUSTICE SOTOMAYOR: 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?
MR. 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 12 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.
So let's say we have the image of a person being brutally raped in a game. That could lead to huge fines if the game was sold to a minor in California. Slap pointy ears on the character and call it an Elf? Fair game.
The problem is that the law has no strong, clear definition or explanation of what content would be in violation, and could lead to penalties for the person selling it. The Court tried multiple times to get Morazzini to put the law in common language or to explain clearly how he would define deviant content, and he was unable to. He did suggest that for every case a jury should be formed that would judge each piece of content.
"I'm not concerned about the jury judging," Justice Antonin Scalia replied. "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... 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?" That's the rub—they wouldn't. The content would be judged post-release, after a lawyer raises a complaint, and then, according to Marrazini, the content itself would be put on a sort of trial.
After being asked if California has a panel that judges violence and gives guidance on whether or not it is deviant, Marrazini said it does not. "You should consider creating such a one. You might call it the California office of censorship. It would judge each of these [games] one by one. That would be very nice," Justice Scalia countered.
The other side of the coin
"Let me be clear about exactly what your argument is. Your argument is that there is nothing that a State can do to limit minors' access to the most violent, sadistic, graphic video game that can be developed. That's your argument," Justice Samuel Alito asked lawyer Paul Smith, who argued against the law. After a little bit of hemming and hawing, Smith agreed.
"Mr. Smith, how can you say that? There is plenty of proof children are going into stores and buying these games despite the voluntary rating system, despite the voluntary retailer restraint by some. There is still proof out there, and an abundance of it, that kids are buying the games," Justice Sotomayor responded. In other words, this seems to be a problem that the State can address legally, which is a major point in favor of the California's gaming law.
In another interesting exchange, Justice Ginsberg brought up the FCC's finding that as a governmental organization it could define violence the same way it had sex. "What they did was they spent several years trying to come up with a definition that would allow anybody to figure out which violent TV shows have to be put into this violent adult category and which don't, and they eventually punted and said, we have no idea how to do that," Smith responded. "Congress asked us to do it; we cannot do it; and they punted it back to Congress to try to come up with a definition."
The final report?
The transcript makes for absolutely fascinating reading, and it's worth going over in detail to see how heavily both sides were grilled; the justices made excellent points on both sides of the debate.
What's clear is that no one had a clear definition of deviance, making application of the law problematic, and California's counsel didn't seem to have much of an idea of how that definition would ever be created. The idea of putting artistic expression on trial with experts, video, and a jury is clearly absurd; how much taxpayer money would be spent with people sitting down and judging whether or not certain kinds of violent acts are deviant? Who pays for the content's defense?
The Justices also seemed concerned that California would begin legislating other forms of expression, such as film and music. By Marrazini's own arguments, all it would take would be a few studies showing them to be harmful to children, and then movies would also be put on trial.
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