In the eyes of the law, Mortal Kombat and the Divine Comedy are equal

Yesterday was a landmark day for the videogames industry. In a 7-2 vote, the Supreme Court struck down the 2005 California law that would make selling violent videogames to minors a criminal offense, effectively putting videogames on the same level as pornography.

If you are unfamiliar with the 2005 law and its progress through the judicial system, you can read a recap here. With the decision of the Brown v. Entertainment Merchant’s Association (formerly Schwarzenegger v. Entertainment Merchants Association), the Supreme Court put out a 92-page ruling, outlining the faults with the law and the opinions of each of the Justices. Those opposing the law were Justices Scalia, Kennedy, Ginsburg, Sotomayor, Roberts and Kagan. Justices Thomas and Bryer supported it.

“Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium,” said the ruling.

Justice Scalia, who delivered the court’s ruling, said, “Like the protected books, plays, and movies that preceded them, video games communicate ideas -- and even social messages -- through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection.”

Justice Scalia also noted that the law overrides the rights of guardians who think their children are intelligent and mature enough to handle violent material.

“And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.”

The ruling also stated that studies attempting to show a link between violent videogames and aggressive, violent behavior in children are no more conclusive than studies from other types of media.

“Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint.”

While many reports are claiming this decision allows the videogame industry to freely cater and illicit violent material to minors, it’s important to remember that this ruling does nothing but keep the status quo. The Entertainment Software Ratings Board (ESRB) currently rates all videogames and is the best among all other types of media at keeping violent material out of the hands of children.

The Supreme Court agrees, “California also cannot show that the Act’s restrictions meet the alleged substantial need of parents who wish to restrict their children’s access to violent videos. The video-game industry’s voluntary rating system already accomplishes that to a large extent.”

Justice Alito, who was one of the seven to oppose the law, expressed his own concerns about violent videogames and their regulation.

“Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in 'kind' from reading a description of violence in a work of literature. The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.”

Justice Scalia, in response to Justice Alito’s accusation that violent videogames, “is not different in ‘kind’,” also brings up the argument of Mortal Kombat and the "Divine Comedy," pointing out that while one may be more beneficial to consume, their societal values are no different constitutionally.

“Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny... Even if we can see in them ‘nothing of any possible value to society..., they are as much entitled to the protection of free speech as the best of literature.’”

Justice Thomas, who was one of the dissenters, argued that when the US Founding Fathers created the First Amendment, they did not intend free speech for children.

“The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents.”

“'The freedom of speech,' as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians. Therefore, I cannot agree that the statute at issue is facially unconstitutional under the First Amendment.”

Justice Breyer, who also dissented, argued that the ESRB is not doing enough to restrict the sale of titles rated M to those 17 and under.

“The majority points to a voluntary alternative: The industry tries to prevent those under 17 from buying extremely violent games by labeling those games with an “M” (Mature) and encouraging retailers to restrict their sales to those 17 and older. But this voluntary system has serious enforcement gaps. ...As of the FTC’s most recent update to Congress, 20 percent of those under 17 are still able to buy M-rated video games, and, breaking down sales by store, one finds that this number rises to nearly 50 percent in the case of one large national chain.”

The FTC report that Justice Breyer references shows that the regulations and policies of the ESRB produce an average 80% denial rate on the sale of M-rated games. This far exceeds the movie and music industry, of note the music industry had an average 28% denial rate for music with a Parental Advisory Label (PAL).