WASHINGTON, D.C. — Several strands of First Amendment jurisprudence converged during Tuesday morning’s oral argument in Schwarzenegger v. Entertainment Merchants Association.
The California state law at issue bans the sale or rental of “violent” video games to minors, defining “violent” games with the help of a three-part framework delineated by the Supreme Court in its landmark obscenity case, Miller v. California. In other words, the law attempts to expand the standards applicable to sexual content to also include violent content.
The 9th U.S. Circuit Court of Appeals struck down the California law on First Amendment grounds, and dozens of media and free-speech groups, including the Student Press Law Center, filed friend-of-the-court briefs urging the Supreme Court to affirm the ruling.
As with the case of United States v. Stevens last term, the Court generally appeared uncomfortable allowing legislatures to carve out new categories of unprotected speech, even if they purport to comply with the Miller obscenity standard. A majority of the Court seemed to suggest that a wholesale ban was unnecessarily strong medicine, with several of the justices posing hypotheticals to test the extent of the prohibition.
Justice Sonia Sotomayor wondered whether violent Bugs Bunny cartoons were within the ambit of the statute. She later asked Deputy State Attorney General Zackery P. Morazzini whether games that portrayed the maiming of Star Trek Vulcans would be covered. Morazzini said they would not. Justice Elena Kagan said it was likely that many of her law clerks grew up playing the violent game “Mortal Kombat,” the implication being that they seem to have grown up fine.
The justices searched for possible less-restrictive alternatives to a complete ban, suggesting parental control devices or putting the games on the top shelf might suffice to further California’s goals.
Several of the justices, particularly Justice Anthony Kennedy, expressed concern that the law might be overly vague. Vagueness doctrine in the First Amendment context requires that restrictions on speech be sufficiently clear such that a reasonable speaker knows what is prohibited and what is not. Otherwise, a vague restriction might chill valuable speech which lies just outside fringe of the prohibited range.
Justice Ruth Bader Ginsburg suggested that California might overcome the vagueness problem by creating a system in which a game manufacturer could get an advisory opinion as to whether a particular game comported with the law. Justice Antonin Scalia facetiously agreed, and suggested the state might call it the “California Office of Censorship.”
The argument was not entirely one-sided. Justice Stephen Breyer started his analysis with the premise that states can prohibit minors from viewing “girlie” magazines due to the possibility that such material, though not technically obscene, would nonetheless be harmful to minors. It is “common sense,” he reasoned, that because violent video games are more harmful than “girlie magazines,” a state can curtail minors’ access to the games as well. Rather than Bugs Bunny hypotheticals, Breyer alluded to games depicting the gratuitous torture of babies, wondering if there was no limit to the violent content the First Amendment would safeguard.
Chief Justice John Roberts also appeared sympathetic to the notion of preventing 10-year-olds from games involving schoolgirls being set ablaze. He insinuated that less-restrictive alternatives are inadequate, as “any 13-year-old can bypass parental controls in about 5 minutes.”
If the tilt of the justices’ questioning is an indication of how they will vote, the dozens of gamers and other opponents of the California law who were protesting outside the steps of the Court appear likely to get their way. It does not appear that a majority of justices are willing to blindly defer to the instinctive paternalistic urges of a legislative body.
— By Adam Schulman, SPLC legal fellow