Day one analysis of California vs. the video game industry

apple samsung patent brief support supreme court building1In 2005, the state of California passed a law prohibiting the sale of violent videos games to anyone under the age of 18. Since then, the constitutionality of this law has been the source of argument, and today that debate is coming to a head.

Courts have consistently denied the legal standing of barring violent video game sales, and the law has never taken effect. Now, the issue has made its way to the Supreme Court, where it will finally be decided whether or not it stands.

And so far, opinion is divided, though seemingly leaning in favor of video game developers and their First Amendment rights. California vs. the Entertainment Merchants Association (EMA) and Entertainment Software Association is clearly not an open and shut case, with Supreme Court Justices openly and contentiously disagreeing.

California Attorney General Zackery Morazzini led the way today, claiming minors must be legally protected from the “deviant level of violence that is presented in a certain category of video games.” The game Postal 2 was specifically cited as an example of one needing government regulation.

Chief Justice John Roberts took Morazzini’s side, arguing the law is necessary because of how easy it is to evade parental controls. Also notably defending the yet-ineffective California law were Justices Steven Breyer and Samuel Alito, Jr.

There was no going easy on video game industry lawyer Paul M. Smith. After what The New York Times described as a “barrage of hostile questions,” Smith reasoned that regardless of any personal opinion regarding what is excessive violence, it is purely unconstitutional to rule this law into effect.

But not all of the Supreme Court’s appointees went on the offensive against the video game industry. Justice Antonin Scalia promptly questioned Morazzini whether or not Grimm’s Fairy Tales should be censored – mildly surprising coming from one of the Court’s most conservative members. Scalia is staunchly opposed to government regulation of video games and often voiced his opinion in court today, likening the situation to a “new prohibition.”

Justice Elena Kagan also notably posed the question, “You think Mortal Kombat is prohibited by this statute? It is an iconic game which I am sure half the clerks who work for us spent considerable time in their adolescence playing.” Morazzini answered that yes, perhaps it should be kept out of minors’ hands.

Add to the gaming industry’s defense Justices Ruth Bader Ginsberg and Sonia Sotomayor, who questioned why video games – why this type of regulation wasn’t going to extended to other elements of pop culture. The prosecution’s response is that video games in particular are able to more aptly mold young minds – an idea that researchers do not unanimously support.

California will continue to argue for the law to be upheld, protesting that selling violent video games to minors can be likened to selling pornography to children. There was talk of editing the law to be less strict, of finding a compromise between the state and the industry.

To further cloud where public opinion lies on this issue, a Gallup poll today revealed that the majority of people believe it is foremost a parental responsibility to protect children from excessively violent video games — but that two thirds also believe the government should regulate games. Even so, the fierce defense of the video gaming industry’s First Amendment rights by influential members of the Supreme Court is a good sign of things to come.

Any solution is far off, however, as a decision isn’t expected until June.


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