By Professor F. Jay Dougherty
The Supreme Court heard oral argument today in the case of Schwarzenegger v. Entertainment Merchants Ass'n. This case is a facial challenge to California's recent attempt to regulate minors' access to certain "violent videogames". In U.S. law, certain sexual material--obscenity--is excluded from other "speech" protected from government regulation by the First Amendment. The Supreme Court has, however, permitted laws that limit a minor's access to certain sexual material that would not be "obscene" as to an adult, and that don't unduly restrict an adult's access to such material. But historically, violent material has been viewed as fully protected speech, and "obscenity" has been carefully limited to sexual material. The rare instances where violent speech can be unlawful involve speech that is intended to and likely to cause imminent unlawful behavior. That rationale is not the core justification for the California statute in this case. Rather, the argument is that violent material will cause psychological harm to minors. Hence, in this case, California asked the Court to treat violence for the first time much like obscenity--permit states to limit minors' access to material, even if that material would clearly be protected unregulable speech as to an adult.
The lower courts have refused to do that in this case (and in other cases challenging similar laws in other states). The Ninth Circuit refused to extend to violent videogames the rules applicable to obscenity regulation, and, applying the "strict scrutiny" required as to content-based regulations of speech (which the state law would be), found that scrutiny not satisfied. First, there was no credible evidence that violent media causes psychological harm to anyone, including children. Since protecting against such harm was the only "compelling government interest" the state could assert, the law failed strict scrutiny. Even if one assumed the state did prove such a compelling interest, the statute failed the second part of the strict scrutiny test; namely that the law be "narrowly tailored" to effectuate that interest and there are no less restrictive alternatives. The current industry rating system, the availability of parental controls on modern gaming systems, and enhancing education of parents and retailers about that system would achieve the goal in a less restrictive manner, according to the Ninth Circuit.
In the Supreme Court oral argument, the Justices challenged both sides on a number of bases. They noted many areas of vagueness in the statute (one basis on which facial First Amendment challenges are often successful). How clear is the definition of violent videogames? How would the statute deal with differences between what might be sufficiently offensive as to a 17-year old versus a 7-year old? Much literature traditionally aimed at minors has included violence. What about Grimm's fairy tales or Bugs Bunny cartoons? If this law is acceptable, what stops state regulation of films or music with violent imagery? Justice Scalia and some others expressed concern that, even if a jury might be able to decide, a producer of videogames would have difficulty predicting ex ante what would be illegal. Justice Kennedy pointed out that beyond the vagueness, the real issue is whether traditional regulation limited to sexual material should be extended to an "entirely new area, where there is no consensus, no judicial opinions..." Justice Scalia noted that it was "always understood that the freedom of speech did not include obscenity" but not exclude portrayals of violence from the "speech" protected by the First Amendment. California's attorney tried to distinguish videogames from other types of media by claiming the active role of the player makes videogames particularly harmful. When asked about parental controls and the "V-chip", California's attorney argued that they are easily circumvented by minors.
The Justices were also hard on counsel for the videogame industry. Justice Roberts seemed to attack the lack of evidence (or at least the equivocal evidence) of harm caused to children by violent videogames. As in the case where the Court permitted limitation of access by minors to sexual material, Roberts seemed to argue that it was just "common sense" that harm could result and that parents should be able to have a legal right to limit their children's access to violent material. Justice Breyer argued that the legislature could have enough evidence to think there was harm to children from violent games and that parents are often not in a position to control what their children play. However, Justice Scalia observed that the price of videogames might make it unlikely a young person could afford to buy one without a parent's knowledge (on rebuttal, California's attorney pointed out that children might be able to afford to rent such games). Justice Breyer asked what "common sense" did it make to say a child couldn't buy a picture of a naked woman, but could buy a game with graphic torture. The videogame industry attorney again argued that sex has been traditionally regulated, but not violence. Justice Roberts and Justice Alito seemed to distinguish modern "graphic", "active" violence from traditional violence to which children were exposed in the past, suggesting that there is no "tradition" of treating modern forms of violence as protected speech. The videogame industry attorney pointed out that historically, other types of "new media" were also attacked but ultimately found to be protected speech. Ultimately, several Justices pressed the videogame attorney to say that at this point there was nothing a state could constitutionally do to regulate violent videogames, because such a regulation could not survive strict scrutiny. Several Justices seemed to disagree -- rejecting the efficacy of existing controls and the ability of parents to control their children's access. They seemed to explore analogies to the regulation of other harmful material or conduct--drinking, driving, for example (which, the videogame industry's lawyer pointed out do not involve limiting expressive material)--and other possible regulatory schemes, such as putting legal force behind the industry's voluntary ratings system. Some Justices also explored the more basic question of whether videogames are protected "speech" at all, noting that some simple games are lacking in expressive content. But the videogame attorney pointed out that the kinds of videogames subject to regulation were precisely those with narrative content.
This is a highly complex and emotionally charged dispute. Based on the oral argument, it is hard to predict what the Justices will do. They seemed open to the possibility of permitting regulation of minors' access to at least some modern videogames involving active participation in violent imagery by the user. Although it seems unlikely they will permit including merely violent content into a category like obscenity, i.e., not "speech" at all, it seems likely that they will affirm the unconstitutionality of the California statute, but open the door to the possibility of a more narrowly drawn statute that might satisfy strict scrutiny, perhaps permitting limits on minor's access, claiming that the regulation is aimed at non-expressive harm to a child's psychological health, with only secondary effects on availability of what some of them view as relatively low value speech. But even this would be a major erosion of modern free speech jurisprudence, based on inconclusive, at best, evidence of harm. To permit limitation of offensive speech based on mere "common sense" risks putting the Court on a dangerous highway to limitation of expression and ideas--we do not need the First Amendment to protect inoffensive speech. It might be "common sense" to some conservative Justices to limit access to other media and other content as well, permitting criminal sanctions to impose their view of "common sense" on, for example, violent TV or films.