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Transcript in Supreme Court Violent Video Games Case Released

Today, the Supreme Court heard oral arguments on whether or not to uphold a proposed 2005 California law that would make it illegal to sell or rent excessively violent video games to minors. The transcript in the case Schwarzenegger vs. EMA/Entertainment Software Association has been released and makes for an interesting read.

Here are some of the highlights:

- Almost immediately, Justice Antonin Scalia asked the attorney representing the state of California, Zackery Morazzini, what the difference was between a deviantly violent video game and a normally violent video game. He also mentioned the Brothers Grimm, whose fairytales are also pretty violent, and asked if the state would seek to ban those as well.

- The heart of the matter seemed to be the question: Why video games? Why, above all other forms of violent media, are they being singled out by the state of California? Morazzini said that the California legislature had been presented with substantial evidence that the interactive nature of violent video games, where the minor or the young adult is the aggressor, is especially harmful to minors. This lead to newly appointed Justice Elena Kagan asking if a similar study was released suggesting that movies were just as violent, would California seek to regulate them as well? Morazzini danced around the issue, stating that only a narrow category of material would be covered by the law.

- The state of California insists that it doesn't want to act as a censor. Rather, it wants to "erect a barrier in between a retail sales clerk and a minor with regard to violent material" and to make parents more involved in the decision-making process.

- The attorney representing the EMA/ESA, Paul Smith, argued that California is asking the Supreme Court to "grant it a new free pass, a brand-new Ginsberg-like exception to the First Amendment that would deny constitutional protection to some ill-defined subset of expressive works...not just video games, but necessarily movies, books and any other expressive work that describes or portrays violence in a way that some court somewhere, some day, would decide is deviant and offensive."

- Justice Samuel Alito says that because video games are a new medium they present "a question that could not have been specifically contemplated at the time when the First Amendment was adopted." To which Smith replied, "We do have a new medium here, Your Honor, but we have a history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling, our children are all going to be turned into criminals. It started with the crime novels of the late 19th century, which produced this raft of legislation which was never enforced. It started with comic books and movies in the 1950s. There were hearings across the street in the 1950s where social scientists came in and intoned to the Senate that half the juvenile delinquency in this country was being caused by reading comic books, and there was enormous pressure on the industry. They [self-censored]. We had television. We have rock lyrics. We have the Internet."

- The differences between a narrative and non-narrative video game were discussed, and whether or not the law would regulate narrative or simply the violent acts themselves. "The events in a video game -- what happens in the plot is a combination of what the game gives you and what the player adds to it," said Smith. "There is a creative aspect coming at it from the other side. It's often referred to as a dialogue between the player and the game. I would submit that both are completely protected by the First Amendment."

- Smith goes on to say that California has "not shown any problem, let alone a compelling problem, requiring regulation here in a world where parents are fully empowered already to make these calls, where crime, including violent crimes, since the introduction of these games has been plummeting in this country, down 50 percent since the day Doom first went on the market 15 years ago; in a world where parents are fully aware of what's going on in their homes and aware of the ratings system and can use all the other tools that [the gaming industry has] talked about." Smith also argues that the law California wants to impose will conflict with the ESRB ratings that are already on the packaging of every video game sold, ratings that parents use every day to make judgments on whether or not a game is appropriate for their children.

- When Justice Sonia Sotomayor asks if a game portraying a Vulcan being maimed and tortured would be covered by the law, attorney Morazzini says no, because the law is only directed towards the range of options that are able to be inflicted on a human being. (Spock doesn't count? He's half human!)

Having read through the entire transcript, it appears that the Supreme Court is siding with the video games industry. However, we won't know for sure until an official ruling is made.

You can read the full 72-page transcript here.

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Stefanie Fogel
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