UPDATE: Supreme Court Seems to Favor Games Industry

Order of the highest, most awesome court. Justice Scalia FTW!

It looks like the Supreme Court is a bunch of gamers at heart. At the end of Tuesday’s hearing for Schwarzenneger vs. EMA, which concerns First Amendment protection for video games, the judges picked away at Attorney General Zackery Morazzini’s ill-constructed arguments.

Claiming that some games are examples of “deviant violence,” Morazzini struggled to define what exactly the term meant. He contended that any depiction of a human being mamed, tortured, or sexually assaulted in a video game would apply.

Below is the transcript for part of the hearing. Kudos to Rock, Paper, Shotgun for getting this out on the web.


Justice Scalia: What’s a deviant violent video games? As opposed to what? A normal violent video game?
Morazzini: Yes, your honor. Deviant would be departing from established norms.
Justice Scalia: There are established norms of violence? … Some of the Grimm’s fairy tales are quite grim, to tell you the truth.
Morazzini: Agreed, your honor. But the level of violence ….
Justice Scalia: Are they okay? Are you going to ban them too?
Morazzini: Not at all, your honor.

Justice Ginsburg: What’s the difference? I mean, if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm’s fairy tales? Why are video games special? Or does your principle extend to all deviant, violent material in whatever form?
Morazzini: No, your honor. That’s why I believe California incorporated the three prongs of the Miller standard (for identifying porn in legal cases). So it’s not just deviant violence. It’s not just patently offensive violence. It’s violence that meets all three of the terms set forth in … The California legislature was presented with substantial evidence that demonstrates that the interactive nature of violent — of violent video games where the minor or the young adult is the aggressor, is the — is the individual acting out this — this obscene level of violence.

Justice Kagan: Well, do you actually have studies that show that video games are more harmful to minors than movies are?
Morazzini: Well, in the record, your honor, I believe it’s the Gentile and Gentile study regarding violent video games as exemplary teachers.
Justice Kagan: Suppose a new study suggested that movies were just as violent. Then, presumably, California could regulate movies just as it could regulate video games?

Justice Sotomayor: One of the studies, the Anderson study, says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that study, outlaw Bugs Bunny?
Morazzini: No.

Justice Scalia: That same argument could have been made when movies first came out. They could have said, oh, we’ve had violence in Grimm’s fairy tales, but we’ve never had it live on the screen. I mean, every time there’s a new technology, you can make that argument.

Justice Sotomayor: Could you get rid of rap music? Have you heard some of the lyrics of some of the rap music, some of the original violent songs that have been sung about killing people and other violence directed to them?

Justice Ginsburg: Part of this statute requires labeling these video games in big numbers “18.” So it’s 18 and California doesn’t make any distinctions between 17-year-olds and 4-year-olds.

Justice Scalia: I’m concerned about the producer of the games who has to know what he has to do in order to comply with the law. And you’re telling me a jury can — of course, a jury can make up its mind, I’m sure. But a law that has criminal penalties has to be clear. And how is the manufacturer to know whether a particular violent game is covered or not? Does he convene his own jury and try it before — you know I really wouldn’t know what to do as a manufacturer.
Morazzini: I am convinced that the video game industry will know what to do. They rate their video games every day on the basis of violence. They rate them for the intensity of the violence.

Justice Kennedy: It seems to me all or at least the great majority of the questions today are designed to probe whether or not the statute is vague. And you say the beauty of the statute is that it utilizes the categories that have been used in the obscenity area, and that there’s an obvious parallel there. The problem is that for generations there has been a societal consensus about sexual material.

Justice Scalia: I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment. …What’s next after violence? Drinking? Movies that show drinking? Smoking?

Justice Breyer: This court has held in one instance that courts can regulate fighting words. We regulate fighting words? Don’t we?
Morazzini: Absolutely.
Justice Breyer: Because they provoke violence.

Justice Scalia: You should consider creating such a one (advisory office). You might call it the California Office of Censorship. It would judge each of these video games one by one. That would be very nice.
Morazzini: Your honor, we ask juries to judge sexual material and its appropriateness for minors as well. … California is not acting as a censor. It is telling manufacturers and distributors to look at your material and to judge for yourself.

Justice Kagan: Do you think Mortal Kombat is prohibited by this statute?
Morazzini: I believe it is a candidate. But I haven’t played the game and been exposed to it sufficiently to judge for myself.
Justice Kagan: I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing [it].
Justice Scalia: I don’t know what she’s talking about.

Justice Kagan: Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?

Morazzini: No, it wouldn’t, because the act is only directed towards the range of options that are able to be inflicted on a human being.
Justice Sotomayer: So if the video producer says this is not a human being, it’s an android computer simulated person, then all they have to do is put a little artificial feature on the creature and they could sell the video game?
Morazzini: Under the act, yes, because California’s concern, I think this is one of the reasons that sex and violence are so similar, these are base physical acts we are talking about, Justice Sotomayor. So limiting, narrowing our law here in California, there in California to violence = violent depictions against human beings.
Justice Sotomayer: So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.


It sounds like game over for Morazzini’s defense. Thanks to the Supreme Court, video games will march forward as deserving artifacts of artistic culture.


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