Yesterday the Supreme Court heard opening oral arguments in the case of Schwarzenegger v. The Entertainment Merchants Association and Entertainment Software Association, a case that could decide the legal status of video games.

The California law at issue would levy fines against retailers who rent or sell video games depicting “especially heinous, cruel, or depraved violence, such as torture” to anyone under eighteen. The law was first introduced in 2005, though it never went into effect and was ruled unconstitutional in a federal district court in August 2007, and at the appellate level in February 2008.

2197531739_2e7d1231e0The lower courts threw out the law, finding no evidence establishing that games are any more harmful than violent television, movies, Internet sites or other speech-related exposures. The courts have blocked the law by saying it violates the strict scrutiny standard that allows few exceptions to the freedom of speech.

California argues that the standard with which video games are  judged should be closer to that for pornography, which it is legal to bar from minors. California contends that there is a double standard in protecting kids from sexual imagery but not violence.

Interestingly, the public appears to support at least some restrictions on violent video games. Gallup survey results show that “a clear majority of Americans see parents as having the most responsibility for deciding whether violent video games ought to be purchased or rented by children, but a smaller majority also approve a government ban,” reported Gene Policinski, Vice President and Executive Director of the First Amendment Center.

In the end, however, it is the opinion of the Court that matters. The Justices’ questioning of California Attorney General Zackery Morazzini indicated that they are skeptical of the law. Justice Scalia questioned how the state distinguishes violence in video games from violence in other mediums, suggesting that under  California’s reasoning Grimm’s Fairy Tales could be banned. Justice Ginsberg expressed similar doubts, asking why video games are different from movies or comic books.

The Court also expressed concern over the vagueness of the statute as well as the scientific evidence behind it. Justice Sotomayor called into question several studies presented by California that suggest a link between video games and an increase in violent behavior.

Other justices appeared more sympathetic to California’s case. Chief Justice Roberts took issue with arguments put forth by EMA and ESA suggesting that parental controls are capable of keeping minors from playing mature games. Justice Breyer questioned the claims that California’s law violates the First Amendment, arguing that since the law does not prevent parents from purchasing violent video games for their kids, there is no First Amendment Issue.

Even after this extensive back and forth, however, it is unclear how familiar the Court actually is with video games. California presented limited amounts of gameplay footage from the extremely violent Postal 2, and read written descriptions of some of the game’s most offensive content. The EMA and ESA included over two-and-a-half hours of gameplay footage from a  variety of games in their original Supreme Court filing.

The Court is expected to reach a decision in the case no later than June 2011, and maybe as early as March.

Jeremy Francis

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