Supreme Court

Video Games and the Supreme Court

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SCOTUSblog's Lyle Denniston offers a lengthy and highly detailed preview of next week's oral arguments in the case of Schwarzenegger v. Entertainment Merchants Association, which centers on a California law banning the sale or rental of "violent" video games to children under 18:

The Court may already have signaled that it does see a problem with violent video games and their potential impact on children, simply by taking on the California appeal when there was no split in the lower courts on the issue.  If that perception exists and if it represents a majority view, the argument between the two sides over whether the scientific data now available proves the point (or does not prove it at all) may have little effect.  The Justices may be prepared to move on to the harder question of what to do about it….

On the other hand, the Court has demonstrated that it finds virtue in caution when confronting the social effects of new media.  Perhaps there is a member of the Court who actually plays a video game (or knows well someone who does), but the chances are that the Justices are not closely familiar with what is available now in the universe of such games.  The briefs on the side of the trade associations make a major effort to acquaint the Justices with the enormous diversity that does exist in that marketplace of ideas.  If that effort succeeds, it could well raise cautionary flags about the difficulty in crafting a definition of video violence that would not seriously curtail this mode of expression — not just for children, but for adults as well.

Read the whole thing here. Jacob Sullum discusses the case here. Reason talks video games here.

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  1. Video Games and the Supreme Court

    They go together like horse and carriage!

  2. I can only imagine the biased ignorance that will be on display for this one.

    Of course you have to laugh when the Supreme Court gets involved in small time parenting. Well, until it’s time to punch yourself in the eye because of how retarded anti-game groups get over video games.

    Violence in movies, songs, books = OK
    Violence in historical documents, television and film footage = OK
    Images of actual people who’ve been physically harmed by war, other violence = OK
    Fictional violence manipulated via game controller = downfall of American society

    1. I don’t see this as being a big deal. There are lots of things that minors can’t buy directly. R rated movies, pron, for example. I don’t know if that’s state law or just a semi-voluntary position adopted by theaters. I don’t see why video games should be viewed differently. As it is, law or no law, Target and WalMart won’t sell M or AO games to kids. My point is, if they can regulate porn to minors, why not violence? After all, a kid could still ask mom ‘n dad for it, right?

  3. Surely the Fathers could not have foreseen Leisure Suit Larry when they wrote the First Amendment.

    1. Don’t forget to wear the condom with the prostitute!

      1. But is she wearing her reflective vest?

      2. “OH! YOU WANT LUBBERS? HA HA HA HA!!”

    2. Did you know Leisure Suit Larry was based on Arthur Laffer of the laffer curve fame?

  4. the argument between the two sides over whether the scientific data now available proves the point (or does not prove it at all) may have little effect.

    Of course, it should have even less relevance, unless the Court concludes that video games have no expressive content and are thus not covered by the 1A.

    That would be monumentally stupid, so I give it about even odds.

    1. I’d say the odds are 5-4.

  5. I don’t see how this is a federal case. This is a state law restricting the sale of a product to a minor. I guess I’m not seeing any chilling affects on creation of media for adults.

    1. Agreed. If they can restrict some beverages (alcohol) and not others from minors, surely they can restrict some video games and not others. Is the issue at hand the level of violence? Who rates the games? Even Ms. Pac-Man contains death. That’s gotta be it, right? Besides, it’s not like shitty mom won’t still buy them for her kids while Mother’s Little Helper takes away her pain.

      1. The ESRB rates games as a self-regulatory organization. Developers submit the most extreme displays of violence and sex in their game, complete a questionnaire about the more questionable content, and get their rating. That’s when they’ll alter a game (GTA:San Andreas and the infamous Hot Coffee minigame, or Fallout 3 renaming morphine to med-x) to receive a mature rating as opposed to the doomed AO rating.

    2. I’m not seeing any chilling affects on creation of media for adults.

      If a major retailer was to stop carrying mature titles for fear of legal repercussions, developers would likely respond by releasing less mature titles and more teen titles.

      Games rated AO (adults only) are nearly non-existent (I’ve never seen one and am an avid gamer) because major retailers like Gamestop, EB, Best Buy, and Wal-Mart will not carry them. No one is going to develop a game that they can’t sell.

      Of course to get an AO rating would require some pr0n like content, not just tetas, so maybe it would be too creepy to be part of the team developing an AO title, or that there is too limited a market to sell to any way.

      1. Wouldn’t take all that much. The violence-filled Grand Theft Auto : San Andreas was moved from an M rating to AO because of pixelated sex — with absolutely no nudity.

        1. True, and I mentioned Hot Coffee above. Which is also weird because the God of War series has sex minigames in them, and they’re still rated M.

      2. Wouldn’t take all that much. The violence-filled Grand Theft Auto : San Andreas was moved from an M rating to AO because of pixelated sex — with absolutely no nudity.

        1. Stupid double-post. Stupid server!

      3. Games rated AO (adults only) are nearly non-existent

        But is that only because of how the people applying the ratings are doing so?

        I.e., some of these things maybe should be rated AO, but are rated M instead, because rating them AO will limit their potential audience.

        I’ve seen the “coarsening of society” in my lifetime, in terms of what a lot of people think is ok or not objectionable for younger and younger people to be exposed to.

        Examples – what you can say and show on regular TV. It wasn’t all that long ago when you couldn’t get away with saying “ass” or “bitch” or “tits” and yet these days I’ve heard all of those on regular TV.

        And of course the gratuitous references to sex, sex, sex, all the time.

        Things that today are rated PG-13 would have been rated R when I was an adolescent or teen.

        Just kinda wondering out loud here.

        1. Funny, I’d think just the opposite. I thought it was well known that movies in the 1970s had more nudity than movies today. Not long ago I watched the original Clash of the Titans with my son (PG, 1981?) and it had a bit of nudity in it. It occurred to me how unlikely even brief flashes of nudity would be in a modern PG movie.

          Also, to my knowledge there are no musical acts today that have the explicit sexual descriptions common in records by 2 Live Crew and their ilk when I was in high school in the late 1980s/early 1990s.

          I think you may be right that profanity is more acceptable today in public, but I do not think I have otherwise seen a coarsening of American culture in my lifetime.

          1. Airplane was rated PG and they had simulated fellatio of a blow-up Otto, some gratuitous titty shots, a woman sleeping with a horse, drug use…..shit, I gotta go fire up the DVD now.

            Oh, and I remember the next 2Live album. Wasn’t it called “Banned in the USA.”? I distinctly remember a court case where it was banned but eventually overturned on appeal.

            1. As anyone’s kid ever asked when it was the right day to quit sniffing glue?

              Florida had a problem with 2livecrew. They were arrested for doing adult themeish stuff, in a nightclub of all places.

              1. That first word should be Has.

          2. You’re just not listening to right music. The sex is just as common, but since the PMRC stickers, nobody gives a shit. It also doesn’t get airplay, so it’s less noticeable.

            Of course, 2 Live Crew never got any airplay back in the day, either. They would have faded into obscurity much quicker without the lawsuits and banning. Someday people will realize that making a big deal over crappy music just sells more copies. Marilyn Manson and ICP are the current exemplars of this phenomenon. Both acts would have sold 23 albums and gone back to minimum wage at a fast food joint without all the uproar.

        2. Examples – what you can say and show on regular TV. It wasn’t all that long ago when you couldn’t get away with saying “ass” or “bitch” or “tits” and yet these days I’ve heard all of those on regular TV.

          Yet you won’t see anyone smoking a cigarette on TV these days.

          1. So Mad Men fake smoking?

  6. People shouldn’t be allowed to do anything without explicit approval from the government.

    1. Bad mock-Tony. He’d be way less direct when stating that.

    2. written approval from the gov’t… and the NFL.

    3. That was turrrrrible.

      1. referring to your Tony spoof, that is

        again, turrrrrible

        1. Round mound of rebound says what?

          1. Throw it down, Big Man!

  7. Football is a violent sport. Does that mean that football games will be banned for kids?

  8. I guess I’m not seeing any chilling affects on creation of media for adults.

    Nor does a chilling effect need to be demonstrated under the 1A.

    It doesn’t say “Congress shall make no law that might have a chilling effect on free speech or a free press”, you know.

    1. “”It doesn’t say “Congress shall make no law that might have a chilling effect on free speech or a free press”, you know.””

      No it doesn’t. It also doesn’t mention harm.

    2. Congress didn’t make this law. That would make it a 10th amendment issue unless it violates incorporation under the due process part of the 14th amendment. I don’t see this law rising to that level.

      1. The First Amendment has been considered incorporated for quite some time.

  9. We have to conduct a mock case based on Schwarzenegger v. Entertainment Merchants Association for my college Polisci class…

    Those of us who chose to be Justices have to pick a specific one we’d like to pretend to be…any suggestions? Who is the most libertarian judge currently sitting on the court? Scalia, for all his talk about being a strict constructionist, seems to be a cheerleader for big government.

    1. Who is the most libertarian judge currently sitting on the court?

      On free speech issues, it’s generally Kennedy, Thomas, and Ginsburg.

      1. And on commercial free speech, it’s generally Thomas first, then Kennedy.

        See Thomas’s concurrence in 44 Liquormart vs. Rhode Island.

        JUSTICE THOMAS concluded that in cases such as this, in which the government’s asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace, the Central Hudson balancing test should not be applied. Rather, such an “interest” is per se illegitimate, cf., e.g., Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 768 -770, and can no more justify regulation of “commercial” speech than it can justify regulation of “noncommercial” speech.

      2. When was the last time these three voted the same way on a case? Just curious.

        BTW, I’d probably go with Thomas as most libertarian.

        1. Aside from unanimous cases, I can think of Arthur Anderson LLP v. Carlisle. Justice Scalia wrote the majority opinion, joined by Justices Kennedy, Thomas, Gisburg, Breyer, and Alito. Justice Souter dissented, joined by Justice Stevens and Chief Justice Roberts.

    2. Judge Dredd.

  10. On a related note, should I be playing Fallout: New Vegas? Did it turn out to be any good?

    1. “Buggy but fun” seems to be the general consensus.

    2. Don’t have it yet, but the word on the ‘tubes is that the the gameplay and story are so good that they manage to make putting up with the technical glitches worthwhile.

      1. Or, yeah, buggy but fun.

    3. The gameplay, quest stories, and FO trademark awesome weird occurrences ARE so good that it’s worth putting up with the glitchiness/bugginess.

      My biggest beefs are that:
      – loading times on the Strip and in certain locations are just too damn long
      – mapping issues for NPCs (getting stuck in walls and rocks, possibly quest ruining)

      So far I’ve had one crash in about 60 hours of gaming. I’ve had one quest get screwed (where I had to load an old save file) because the quest giver got stuck in a freakin’ wall. Other than that I’ve been pretty lucky. If you’ve played Oblivion or FO3 you will know exactly what kind of shit happens with this game engine.

      Save often and make use of many save slots (you can have up to 100) and you’ll be OK.

    4. I’m having fun with it. It’s definitely an Obsidian game, not a Bethesda one (for better or for worse — personally, I’m more of a fan of Obsidian’s design and story sensibilities). There’s an absolute shit-ton of stuff to do, it’s a little more mature (in both the sense of explicit and thoughtful), and the world and characters feel more plausible and less over-the-top and cheesy (sort of the Batman Begins to FO3’s Batman and Robin, although that’s probably overstating the quality difference).

      The challenge factor is upped quite a bit, especially if you play in hardcore. There’s much less handholding in keeping you from running across things that are way out of your league — just head due north from the starting town and ignore the warning signs to figure out what I mean.

      Plus, if you were a fan of FO1 and FO2, it returns to a lot the stuff from those games since it’s right next door.

  11. I honestly don’t see why the so-called “science” is relevant here.

    Let’s say it could, in fact, be documented that playing video games would make people more likely to approve of certain types of violence.

    So what?

    Last time I checked, it was perfectly legal to think the thought “I really think I should be allowed to shoot space aliens dead.” That being the case, how could it possibly be illegal to craft a communication that would make people more likely to think that?

    1. Didn’t you hear? They’re working on mind control beams for your XBox or PS.

      1. Ed Nigma strikes back?

  12. Ratings of any sort on art is nanny-ism at its worst.

  13. I only play Minecraft….

    http://www.minecraft.net/

    So i don’t see how this will effect my game playing.

    all that violent stuff and sex should not be in games anyway

    1. No idea why no one responded to this.

      I make a terrible self troll.

  14. the only people who worry about vidya violence are people who have little to no experience actually playing vidya games.

    Seeing sex or murder in a movie has a much more profound effect on me than in a vidya game. Maybe ’cause in the vidya I’m thinking “B Button! B BUTTON!”

  15. Whenever I hear someone arguing that violent games make people violent (or violent movies, or whatever), I think, “Here is a person who thinks he is getting secret telepathic messages from his TV telling him to kill.”

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