“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?” asked Supreme Court Justice Ruth Bader Ginsburg in response to California Lawyer Zackery P. Morazzini’s argument for banning the sale of violent video games to minors.
That question was dropped moments into Morazzini’s time before the US Supreme Court on Tuesday, where oral arguments in the case ‘Arnold Schwarzenegger v. EMA [Entertainment Merchants Association] are being considered.
Why, you ask, do I bring this up in a column devoted to discussing technology and television? After all, those uninterested in games wouldn’t usually give a case about video games and minors a second thought. However, this is a landmark case with consequences that could extend far beyond the video game industry, and could very well have a significant impact on movies, television, and other entertainment mediums.
Long story short, the State of California is seeking to make the sale of ‘deviant violent’ video games to minors a crime, attached to a $1000 fine for each occurrence. While on the surface it may seem like nothing, prohibiting the distribution of expressive works collides with free speech rights of the First Amendment of the Constitution (Yes, in the United States). In effect, California is seeking to create an exception in the First Amendment for violent games, similarly to how explicit sexual material is restricted from minors.
Therein lies the problem. Defining what’s sexually explicit is generally simple, and almost universally agreed upon. Violence, on the other hand, cannot be so easily defined. Every day there are parents who tell their 9-year old kids they can’t watch Bugs Bunny cartoons because they’re too violent, while other parents let their 7 year-old children partake in Bugs and Daffy, Power Rangers, and X-Men. Who is to say Bugs Bunny is okay violence, but Power Rangers isn’t? Furthermore, how can deviant violence be determined across such a broad age group. Surely Bugs Bunny isn’t too violent for a 16 year old.
To quote Justice Ginsburg again: “But California doesn’t do that. California has in big letters “18.” So it’s not is it okay for a 7-year-old, is it okay for a 12-year-old. 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.”
From the cartoon, show, movie, or game creator’s standpoint, how can create a show, cartoon, or game when it’s impossible to determine if their expression will be determined as deviant violence or okay violence by some random panel until after its finished? It’s mind numbing when you go to actually compare “violent’ expressions in gaming. Why are Fable and Fallout okay, but Mortal Kombat isn’t? I can choose to inflict violence on people in either game, yet only Mortal Kombat is being considered as a potential candidate for this law.
Justice Scalia raised this excellent point on this topic. “I’m not concerned about the jury judging. 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 are telling me, well 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?”
In effect, this would make it near impossible to create violent games intended for a mature audience. If it crosses some moving target of violence and becomes a crime to sell this game to minors with stiff penalties, retailers would most likely choose to not sell it at all. Furthermore, an exception for ‘violence’ in the free speech rights of those in the US could very well change what and how entertainment is created. That affects the US, but everyone else in the world who enjoys the content we create or tries to create content for this market.
I could sit and poke holes in nearly every argument Morazzini made regarding video games all day, starting with pointing out he’s admitted to never playing any of the games he’s using as examples, but that’s not the point. If such an exception to the First Amendment were to be made for the sale of violent video games, there’s nothing stopping every someone for seeking similar restrictions movies, TV, comics, and more. For example, this could lead easily lead to forcing broadcasters to air television shows deemed too violent until 10PM, like the Power Rangers, CSI:, and nearly every cartoon I watched growing up. Just imagine how that would affect the ratings for those programs.
If you have time, read the full transcript from the courtroom. It’s not only fascinating (and potentially relevant to the entire media industry), but has some seriously awesome arguments made by the Justices.
Satisfy your inner geek while fueling your TV addiction… TV Tech Fix is a column by Matt Whitlock, editor of the TechLore.com Consumer Electronics Community (plus several other gadget-focused community websites), and lover of both technology and TV. In this column, he’ll cover a wide variety of tech topics aimed squarely at the TV addicts of the world – from tips and tricks to help you better your TV experience, to gear recommendations, to the impact technology is having on the TV shows we love.