JEFFREY BROWN: The case is Schwarzenegger vs. Entertainment Merchants Association. The issue is whether California can ban the sale of violent video games to minors. Marcia Coyle of “The National Law Journal” was, of course, in the courtroom and joins us now. Welcome back.
MARCIA COYLE, “The National Law Journal”: Thanks, Jeff.
JEFFREY BROWN: OK. So, start with some background on this California law.
MARCIA COYLE: Well, the law was enacted in 2005. And it bans the sale or rental of violent video games to anyone under the age of 18. And it defines violent video games as involving killing, maiming, dismembering, and the — sexually assaulting the image of a human being.
The law never took effect, Jeff, because, shortly after it was enacted, the video game industry brought a challenge in federal court. The federal courts found that the law violated the First Amendment.
JEFFREY BROWN: All right, so that means California is appealing, bringing the case to the Supreme Court. So, its lawyer went first today.
MARCIA COYLE: Right.
JEFFREY BROWN: What’s — what’s the argument? What did he say?
MARCIA COYLE: Well, the lawyer for California is a state attorney. Zackery Morazzini. And he told the court that the law has two purposes, two goals. It’s to help parents protect minors from accessing violent video games. And, secondly, he said it’s to protect minors from the harmful effect of using violent video games.
He immediately encountered a blizzard of questions from the justices, who asked, basically, how do you define a violent video game, and, if the court would carve out an exception under the First Amendment protection for violent video games, where do you stop? What about violent books, violent movies? Justice Scalia immediately said…
JEFFREY BROWN: Violent fairy tales and all, right?
MARCIA COYLE: Right. He said Grimm fairy tales are often violent. Justice Sotomayor said, what about rap music? The lyrics are very violent. She even said cartoons like “Bugs Bunny” have been — some have said have a violent impact on children.
JEFFREY BROWN: It’s interesting. They’re talking about, how do you define violence, even though you gave — the law has — it does try to define it. But they’re saying, they’re questioning whether that is too vague.
MARCIA COYLE: That’s right. Exactly. In fact, the state’s attorney said the way to sort of cabin this is to apply the standard that the court has approved for prohibiting the sale of sexually explicit material to minors. Is it patently offensive by community standards? Does it lack any serious literary or political or scientific value? Does it appeal to the morbid interest of minors?
JEFFREY BROWN: And to be clear here, California faces a very high bar, right, because it’s asking essentially for an exception to the First Amendment.
MARCIA COYLE: Exactly. And Justice Kennedy in particular told this attorney that there is today a social consensus about what is sexually offensive material. And there have been many court decisions about that. But there’s no consensus, no court decisions on what constitutes a violent video game. And that, he said, indicates to him that this law is vague.
And that’s very problematic for a law that imposes criminal penalties and fines.
JEFFREY BROWN: All right, so then the lawyer for the video game industry spoke, but he too ran into some pushback.
MARCIA COYLE: He had a tough bench as well. This was Paul Smith of Jenner & Block, a noted First Amendment lawyer. He said there is really no problem, no compelling problem here that the law is trying to address. He said there’s not a shred of evidence that has been produced that conclusively shows a link between using violent video games and aggressive behavior later in life.
JEFFREY BROWN: It’s funny. They were dueling over studies, right?
MARCIA COYLE: And there are dueling over studies.
JEFFREY BROWN: On both sides.
MARCIA COYLE: That’s right. Exactly.
JEFFREY BROWN: Yes. Yes.
MARCIA COYLE: There are dueling studies. But Chief Justice Roberts, for example, he said, well, what about this distinction between books and video games? A child isn’t sitting passively there with a video game. That child is doing the killing, the maiming, the sexually assaulting.
And Mr. Smith said, well, listen, the law right — that, right now, there are plenty of tools for parents to use. There are ratings by the industry. Parents can have parental controls on these games. And they’re effective, he said.
JEFFREY BROWN: I’m curious here, as a father — and I know you – we both have children of a certain age who might use video games.
MARCIA COYLE: Yes. Yes. Yes.
JEFFREY BROWN: Did the justices in their questions and comments show evidence that they are very familiar with these kinds of games?
MARCIA COYLE: Not really, to be honest with you.
MARCIA COYLE: And they didn’t totally buy — some of them didn’t totally buy Mr. Smith’s argument that there is no problem here.
In fact, when I came out of the arguments, it seemed to me that there were a number of justices who felt, particularly Justices Alito and Breyer, who felt that there is a problem, there is a causal connection.
On the other hand, there were a number of justices who also felt that the law is vague and sweeps too broadly.
JEFFREY BROWN: But, as you said, the history here is that this is such a high bar, because the court has — has not allowed these kinds of laws in the
MARCIA COYLE: No.
JEFFREY BROWN: And some other states have tried, right?
MARCIA COYLE: That’s right. There have been about six states and several cities and municipalities that have similar laws. And they have all been struck down. The case has attracted a lot of attention. There were 32 what we call amicus briefs filed, but the overwhelming number of them support the video game industry.
JEFFREY BROWN: Including, we should note, many news — prominent news organizations, right?
MARCIA COYLE: Right, even the Reporters Committee for Freedom of the Press. Some diverse allies, the Chamber of Commerce, the American Civil Liberties Union, they all support the video game industry here.
JEFFREY BROWN: All right, decision to come in some months, I guess.
MARCIA COYLE: Some months, yes.
JEFFREY BROWN: All right. Marcia Coyle of “The National Law Journal,” thanks again.
MARCIA COYLE: My pleasure, Jeff.