Rules of the Game: Schwarzenegger v. EMA

Rules of the Game is an ongoing series analyzing legal issues surrounding the video game industry. In this first installment, our legal expert, Nicholas Sylvain, examines the upcoming Supreme Court case challenging the constitutionality of California’s recent video-game legislation.

Let me confess a shameful secret that I left out of my introductory post.

I’m a lawyer.

Though my professional expertise has been in the areas of criminal law and domestic relations, I still have the reading and writing skills that got me through law school. However, since my legal writing these days is meant both for lawyers and “parties” (that’s people in lawyer-speak), I try and serve both audiences with equal facility. I intend to bring my legal background and my passion as a gamer to the 800-pound gorilla on the legal and gaming scene, Schwarzenegger v. Entertainment Merchants Association — otherwise known as the case about the California game law.

Since the case was accepted by the United States Supreme Court, most of the enthusiast press coverage has made a big deal about the possibility of the entire gaming industry having to change its ways if this law is upheld and generally making a big noise about how gamers should speak up for their hobby. None of this is wrong, exactly, but I don’t think it does the subject justice, if you will pardon the pun. If gamers are to understand what is going on, they need a good grounding on the basics of the law and legal arguments. Once equipped, gamers can then decide how best to fight.

It does not get more basic than realizing that this case revolves around a specific law, enacted by the legislature of the state of California in 2005. Assembly Bill No. 1179, as summarized by the state of California in its petition to the United States Supreme Court, does the following:

… Prohibit[s] 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.

At this point, it is worth noting that these words are not chosen at random, but instead are deliberately crafted to mirror the constitutional restrictions on sexually explicit, obscene materials. Since these restrictions are not directly a part of this law, I will cover them in a future article which covers the legal arguments before the Supreme Court.

The politicians in the California legislature claim that this law is necessary because of the potential harm to minors. California alleges that exposing minors to violence in video games, including “sexual and heinous violence,” causes psychological harm, which includes greater feelings of aggression and exhibiting violent antisocial or aggressive behavior. I’m a little confused by the findings in AB 1179, but California also appears to believe that these sorts of games actually can cause brain damage.

(Go ahead, make up your own joke about brain damaged legislators and insert it here. It would be the appropriate thing to do!)

The law then defines a number of terms, which help to sketch out just what sort of a “violent video game” is covered. Essentially, a “violent video game” is one that allows the player to inflict serious physical harm on humans (or beings with “substantially human characteristics”) in a manner that is especially heinous, cruel, or depraved. (Open season on non-human aliens and animals! Huzzah!) To qualify killing as especially heinous, cruel, or depraved, it must also involve torture or “serious physical abuse.”

The definitions go on at length, but there is a lot of overlap between the separately defined words and they seem to add more bulk than clarity (perhaps to make the law read more impressively?). The key definition is for “serious physical abuse,” which in its simplest form means significant harm that includes a “substantial risk of death, unconsciousness [or] extreme physical pain.” It could be that my brain is being a little slow as I write this late at night, but what killing is not going to involve one or more of these factors? However, I would not be surprised if this was a feature, and not a bug of this law. Read on!

In reading through the definitions, what strikes me is the false sense of precision. The definitions go on at length and certainly sound quite impressive at times, but the upshot seems to be a law that is much broader than the rhetoric of the proponents seems to imply. Keep in mind that this is a criminal statute, which will deter and cause people to change their behavior even if they only think there is a possibility that they will be affected. While it is possible that subsequent case law would find a way to interpret this statute that does not wreak havoc on our hobby, I wouldn’t exactly want to be putting a large wager on that likelihood.

Finally, the whole point of this law is the imposition of criminal sanctions on people who violate its provisions. Rather than a normal criminal penalty, which establishes a level of felony or misdemeanor and associated potential for jail or prison, this statue simply authorizes a court to assess a fine of up to $1,000. Curiously, exempted from the penalty are store clerks (but not managers) and an adult relative (but only a parent, grandparent, guardian, aunt or uncle). I can understand the political reasons for these exemptions, but at first glance it tends to undercut the arguments of the law for its existence. Aren’t violent video games a corrosive threat to tender young minds, according to the state of California? So why should mom, dad, or a crazy aunt or uncle be allowed to give young skulls full of mush a violent video game?

Regardless, now you have the basic facts about the law. In future installments, I plan to touch on the legal arguments made before the Supreme Court, the significance of the Supreme Court taking up the case, and at some point in the fall, the oral arguments made before the assembled Justices. Oral argument will be our first chance to read the judicial tea leaves and try and detect where this case might be going. Ultimately, at some point before the end of June 2011, we will have a decision that is almost guaranteed to be lengthy and complicated, and I’ll do my best to break it down for you. Stay tuned until next time.