On the morning of November 2nd—while the intense game of politics began to play out during the mid-term elections—the politics of games witnessed a landmark event when the Supreme Court heard arguments concerning Schwarzenegger v. Entertainment Merchants Association, a case concerning a California law from 2005 that would criminalize the sale of “deviant, violent video games” to minors.
Essentially, the state of California seeks to treat violent video games in a similar fashion to pornography where the sale of such material to minors was outlawed in Ginsberg v. New York in 1968. While the California law does not seek to prohibit the sale of all violent video games to minors it embraces the wording of the Miller Test, upheld by the Supreme Court in 1973, which tests speech for obscenity. Similar to the Miller Test, the California law would define an obscene, violent video game as that which
(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole, would
find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the
community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary,
artistic, political, or scientific value for minors.
(B) Enables the player to virtually inflict serious injury upon
images of human beings or characters with substantially human
characteristics in a manner which is especially heinous, cruel, or
depraved in that it involves torture or serious physical abuse to the
Against California, the Entertainment Merchants Association (read: the video games industry) argued that video games are a form of free speech protected by the First Amendment of the Constitution. They argued that while pornographic and sexual material has a history of regulation, extending such regulations to the category of violence does not have a strong, historical precedent, potentially causing a slippery slope where legal regulation of violence might be extended to prohibiting minors from reading famous literature, listening to rap music, etc., (hence the reason that the video game industry is backed by other media industries in this case).
The arguments presented before the Supreme Court addressed a number of issues. For example, can statutes concerning sexuality be repurposed to regulate violence? What is the difference between committing graphically violent acts against representations of humans and non-human entities such as monsters, beasts, and even robots that look like humans? Can the courts actually mark a distinct, legal line between egregious violence and violence that is acceptable for minors to consume? (At one point the petitioners claimed that Moral Kombat might be a “candidate” for review under this law, to which Justice Kagan replied that probably all the Justices’ law clerks played that game as adolescents). Indeed, there are a number of interesting issues that arose in the proceedings, and I encourage you to read through the transcript or the excellent summary and coverage provided by the video game blog Kotaku.
Whatever the outcome of the court’s decision—which will not be handed down until next year—the fact that the Supreme Court chose to hear this case at all signifies the ascendant cultural importance of video games in the eyes of the public. It also signifies that the court intuits a difference between the video game medium and other media such as film or literature. From the court’s perspective (and probably from many of ours as well) this difference lies in the notion of interactivity, that when minors (or adults) interact with video games they are actually performing simulated actions instead of merely reading about them or watching them. Does such a difference mean that video games potentially have a stronger impact on the moral development of minors? Does such a difference mean that video games must be more stringently regulated than prior media forms? Whatever your beliefs, since “the heart of the AIMS line of inquiry is interaction” (as Glenn Platt wrote in a post a year ago), the Supreme Court case reminds us that the ethics and politics of interaction should be part of our inquiry. If the highest court in the nation is deliberating on these issues perhaps we should take the opportunity to do so as well.
Image Source: Kotaku