“Violence Sells Video Games to Children”

April 29, 2010

Schwarzenegger v. Entertainment Merchants Association

Case to watch: the Supreme Court has granted certiorari in Schwarzenegger v. Entertainment Merchants Association, a clash between First Amendment free speech rights and protecting minors from violent content in video games.  The California governor originally passed this law in 2005, which prohibits the sale of violent video games to minors under 18 “where a reasonable person would find that the violent content appeals to a deviant or morbid interest of minors, is patently offensive to prevailing community standards as to what is suitable for minors, and causes the game as a whole to lack serious literary, artistic, political, or scientific value for minors.”

Prior to the law taking effect, Judge Ronald Whyte of the Northern District of California blocked its enforcement.  The Ninth Circuit decision (Kozinski, Thomas and Callahan), available here, affirmed the district court injunction.  Applying strict scrutiny, the law violated First Amendment rights as a presumptively invalid content-based restriction on speech.  The court dismissed the argument that the “variable obscenity” standard, and not strict scrutiny, should apply; just because this case deals with minors, it does not qualify for such treatment, as the obscenity standard has historically been used when dealing with sex-based content, not violence in video games.

Although it is clear from SCOTUS precedent that a compelling interest exists in protecting the physical and psychological well-being of minors, California was unable to establish evidence that video games have a negative psychological effect on minors.  Petitioners cited examples of companies like Nintendo, quoted as saying “violence sells video games to children,” who purposefully market damaging violent content to the younger sect.  Some research links aggressive behavior to playing violent video games, but the Ninth Circuit did not find it convincing. [1]

The original author of the California statute, Senator Yee, filed an Amicus Brief with the California Psychological Association et al.  Yee, who has a doctorate in Developmental Psychology, argues against the application of strict scrutiny.  He cites to more recent studies than those referenced in the Ninth Circuit opinion, which “suggest very strongly” a connection between violence in video games and aggressive thought and behavior, antisocial and delinquent behavior, poor academic performance, desensitization to violence and reduced brain activity.  However, instead of taking on the Ninth Circuit’s criticism of some studies, Yee references them without addressing these concerns.  The brief leaves it up to the Supreme Court to decide whether it is truly “commonsense,” as Yee claims, that the studies reveal a link between violent video games and the psychological well-being of minors.

The Court’s most recent speech decision in U.S. v. Stevens will factor into the outcome for young gamers across the country.   The First Amendment trumped over a federal law, outlawing expressions of animal cruelty.  Violent depictions of animal cruelty were not outside the protections of free speech, and the law as written was so broad that it could potentially apply to situations not involving any type of animal cruelty or illegal behavior.  Even though this protection of speech seems ominous for petitioners, they have (at least) one important factor to set this case apart: applying the law to those under 18.  Evidence of any negative psychological impact on children will be a huge discussion point for the Justices.

The case will be heard in the Court’s next term, starting October 4th.  Stay tuned….

[1] Heavy reliance is placed on Dr. Craig Anderson’s 2004 analysis of the effect of violent video games on minors.  Although his findings link the violence to increase in aggressive behavior, numerous disclaimers within Anderson’s own research about the inferences that he has drawn were enough to give the Ninth Circuit pause.  Not enough children were tested, and not enough information was available.

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  1. […] and on appeal Judges Kozinski, Thomas and Callahan upheld the injunction (previous discussion here).  Applying strict scrutiny, the Supreme Court ruled that the law violates the First Amendment and […]

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