Thoughts on Oral Arguments in Schwarzenegger v. EMA Video Game Case

by on November 4, 2010 · 0 comments

I’m still digesting the transcript from Tuesday’s Supreme Court oral arguments in the important First Amendment video game case, Schwarzenegger v. EMA. [Full transcript is here.]  I thought I would post just a couple of quick thoughts here. [Reminder: here is the amicus brief that Berin Szoka and I filed in the case, and here is some analysis of the case by Larry Downes.]

On Defining “Deviant Violence”

Much of the discussion during oral arguments was preoccupied with defining the contours of the term “deviant violence.”  I was pleased to see the Justices asking some sharp questions about the interpretation of that term for regulatory purposes. In particular, I enjoyed Justice Scalia’s remarks and questions to California Deputy Attorney General Zackery Morazzini, who argued the case on behalf of the state. Scalia said:

I am not just concerned with the vagueness. I am concerned with the vagueness, but I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create…  a whole new prohibition which the American people never — never ratified when they ratified the First Amendment.  They knew they were — you know, obscenity was — was bad, but — what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children? Does — will that affect them? Of course, I suppose it will.  But is — is that — are — are we to sit day by day to decide what else will be made an exception from the First Amendment? Why — why is this particular exception okay, but the other ones that I just suggested are not okay? (p. 15-16)

Indeed, that’s what is at stake in this case: The beginning of a new class of exceptions to the First Amendment based upon concerns about children’s exposure to depictions of “excessive” or “deviant” violence.”  Once you open up this can of worms, the sky is likely the limit in terms of how far governments might go to regulate speech in the name of “protecting children.”

If a majority of the Justices choose to side with the State of California and open the floodgates to a new era of speech regulation, I very much looking forward to seeing how they reconcile that with their decision last term in the controversial case of United States v. Stevens. In Stevens, the Court struck down a federal law that criminalized the creation or sale of videos showing animal cruelty. The law that the Court overturned was particularly concerned with “crush videos,” which, according to the Court, “feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish.” As I pointed out in this earlier essay, it would seem rather peculiar that the Court would allow the dissemination of videos of real kittens having their heads crushed by naked women in high heels, which kids might be able to see on the Internet, but then hold here in the Schwarzenegger case that allowing a minor to buy an M-rated video game with depictions of violence is verboten.  Hard to find the logic in that!

But the Court is going to have an even harder time reconciling regulation of depictions of violence with obscenity law and then delineating the boundaries of what governments can and cannot censor or control the sale of.  At least with obscenity, we have one bright-line test: Is sexual penetration shown?  Of course, things get pretty pretty murky after that.  Regardless, what is the equivalent test for violence in video games, movies, or television? Is it decapitation or exploding heads?  What if it’s a zombie head?  What if it’s just a ear that gets blown off a zombie’s head? What if you beat the zombie over the head with a baseball bat to kill him but his head never comes off? Or, as Justice Sotomayor asked, “what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.” (p. 58)

You get the point: A lot of line-drawing is going to need to be done if the Court goes down this path.

On Juries & “Community Standards”

So, let’s drill a little deeper into the line-drawing issue and the enforcement of such regulatory ordinances. During oral arguments, there was an interesting exchange regarding how the State of California, or any other local government, might go about enforcing more speech-limiting ordinances on this front. Justice Ginsburg asked Assistant AG  Morazzini: “does California have any kind of an advisory opinion, an office that will view these videos and say, yes, this belongs in this, what did you call it, deviant violence, and this one is just violent but not deviant? Is there — is there any kind of opinion that the — that the seller can get to know which games can be sold to minors and which ones can’t?”  A terrific question and one followed up by Justice Scalia, who joked (I think): “You should consider creating such a one. You might call it the California office of censorship. It would judge each of these videos one by one.”

In response, Mr. Morazzini defaulted to the old obscenity playbook and argued that:

California’s not doing that here. The standard is quite similar to that in the sexual material realm. California is not acting as a censor. It is telling manufacturers and distributors to look at your material and to judge for yourselves whether or not the level of violent content meets the prongs of this definition. (p. 24)

Thus, Mr. Morazzini wants to dismiss the entire inquiry with the retort: “we ask juries to judge sexual material and its appropriateness for minors as well.”  But that doesn’t necessarily make such regulation any less offensive in the eyes of the First Amendment.  If the state empowers juries to censor, well, it’s still censorship. It’s just censorship with a slightly more democratic face!

Of course, in the field of First Amendment jurisprudence, this is all filed under the banner of “community standards” regulation. As Mr. Morazzini suggests, these is, indeed, a history of it in this country when it comes to obscenity law, although its increasingly rare.  Regardless, I have argued that the time has come to think differently about the appropriateness of “community standards” regulation.  Here’s how I put it in some remarks I made at the Oxford University Internet Institute last year:

It is my hope and belief that we are now in a position to more fully empower parents such that government regulation of content and communications will be increasingly unnecessary. In the past, it was thought to be too difficult for families to enforce their own “household standard” for acceptable content. Thus, many believed government needed to step in and create a baseline “community standard” for the entire citizenry.  Unfortunately, those “community standards” were quite amorphous and sometimes completely arbitrary when enforced through regulatory edicts.  Worse yet, those regulatory standards treated all households as if they had the same tastes or values—which is clearly not the case in most pluralistic societies.

If it is the case that families now have the ability to effectively tailor media consumption and communications choices to their own preferences—that is, to craft their own “household standard”—then the regulatory equation can and should change.  Regulation can no longer be premised on the supposed helplessness of households to deal with content flows if families have been empowered and educated to make content determinations for themselves.  Luckily, that is the world we increasingly live in today. Parents have more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.

Going forward, our goal should be to ensure that parents or guardians have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Optimally, those tools and methods would give them the ability to not only block objectionable materials, but also to more easily find content they feel is appropriate for their families. In my work, I refer to this as the “household empowerment vision.”

What we have with the Schwarzenegger case is the perfect test case for which direction the Court wants to take us.  Will the Court hold on to the past and the old vision of “community standards” regulation that the State of California wants to extend?  Or will the Court recognize that that standard was really a second-best surrogate for more direct parental and household-based standards of control?  The latter position is the one more consistent with a free, diverse society.  As I argued in my old book on Parental Controls & Online Child Protection:

Decisions about acceptable media content are extraordinarily personal; no two people or families will have the same set of values, especially in a nation as diverse as ours. Consequently, it would be optimal if public policy decisions in this field took into account the extraordinary diversity of citizen and household tastes and left the ultimate decision about acceptable content to them. That’s especially the case in light of the fact that most U.S. households are made up entirely of adults.

The ideal state of affairs, therefore, would be a nation of fully empowered parents who have the ability to perfectly tailor their family’s media consumption habits to their specific values and preferences. Specifically, parents or guardians would have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Importantly, those tools and methods would give them the ability to not only block  objectionable materials, but also to more easily find content they feel is appropriate for their families.

On The Role of Parental Controls in First Amendment Jurisprudence

Finally, let’s talk about those parental controls for a moment and the role they play in debates over First Amendment jurisprudence.  At one point during the oral arguments on Tuesday, Chief Justice Roberts interrupted video game industry lawyer Paul M. Smith of Jenner & Block to say that, “any 13-year-old can bypass parental controls in about 5 minutes.”  In response, Mr. Smith correctly noted that “That is one element of about five different elements” and cited a couple of other things such as the information conveyed by the video game’s excellent ratings system, as well as household-level controls / restrictions and the “power of the purse” that parents can exercise when junior asks for $50-$60 bucks to buy one of these games.

What Mr. Smith was getting at here is that today we have access to what I have called “a mosaic of parental control tools and methods” and what is really essential for First Amendment jurisprudence is that the Court not pin everything on just one of those tool or method.  Yes, some kids can evade parental controls, ignore household rules, steal money from Mom or Dad’s wallet to buy a game, etc.  But the combination of these many layers of control constitute what the court has repeatedly called “the less restrictive means” of dealing with these concerns compared to the sweeping nature of government content controls.

Importantly, we should recall what the Supreme Court said about the less restrictive means test in its 2000 decision in U.S. v. Playboy Entertainment Group (2000), which echoed its earlier holding in Reno v. ACLU.  Specifically, in the Playboy case, the Court held that:

[T]argeted blocking [by parents] enables the government to support parental authority without affecting the First Amendment interests of speakers and willing listeners — listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt. Simply put, targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests.

Moreover, the Court held that:

It is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.

This is an extraordinarily high bar the Supreme Court has set for policymakers wishing to regulate modern media content.  As constitutional law scholar Geoffrey R. Stone of the University of Chicago School of Law has noted:

The bottom line, then, is that even in dealing with material that is “obscene for minors,” the government cannot directly regulate such material… Rather, it must focus on empowering parents and other adults to block out such material at their own discretion, by ensuring that content-neutral means exist that enable individuals to exclude constitutionally protected material they themselves want to exclude. Any more direct regulation of such material would unnecessarily impair the First Amendment rights of adults.

This is why parental control tools and methods are more important than ever before. The courts have largely foreclosed government censorship and placed responsibility over what enters the home squarely in the hands of parents.  But will the Supreme Court reverse this jurisprudential trend with its decision in the Schwarzenegger v. EMA decision?  I hope not.  If they do, it will undo about 15 years of really excellent case law on this front.

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