Lead Industry Lawyer Lays Out Arguments For Supreme Court Violent Games Case

The lead counsel for the video game industry in the fight against California’s proposed violent video game restrictions gave a preview of the types of arguments he will make when the case is argued before the Supreme Court next month. Speaking at a Gamasutra-attended intellectual property forum at Chicago-Kent University last week, Jenner and Block LLP Partner Paul M. Smith said that treating violent content like sexual content, as the state wants to, runs up against the current state of American culture. “Violence is considered a perfectly appropriate and normal part of what we give our kids to see starting from a very young age,” Smith argued. “Star Wars, Lord of the Rings, Harry Potter, there's lots and lots of violence in all of those things.” Trying to write a definition of violence that accepts things like Lord of the Rings but restricts more extreme violence for minors causes constitutionally unacceptable vagueness problems, Smith said. “That’s different in a very fundamental way, I think, from sex, where there’s not a lot of sexually explicit things that are targeted at the kid-friendly side of the world that you have to carve out,” he said. There are additional vagueness problems introduced by a clause in California’s law that limits restrictions to games that “as a whole ... lack serious literary, artistic, political, or scientific value for minors.” Smith said such a standard is impossible to enforce uniformly. Who’s to say, Smith asked, “that a video game about D-Day where everybody is being shot at constantly... would have value, but a game about car theft in L.A. doesn’t have value? ... Is it because you can be an American soldier killing Nazis in the D-Day game but you’re a ‘bad guy’ in the Grand Theft Auto game? ... How do you decide which of those games has redeeming value?” Furthermore, Smith said specifically restricting content that includes “maiming or killing an image of a human being,” as California’s law does, just doesn’t make sense in a video game context. “Think about in a video game, trying to figure out what an image of a human being is when there are characters that are the living dead or aliens that look like they’re green or they turn into a car then back into a lion,” Smith suggested. “How do you apply that definition?” Smith warned that any new exception to the First Amendment for exposing minors to violent content would be impossible to contain to just the gaming medium. “It's going to be extended to movies, to the internet, to television, all of which are out there with no limit at all on what they can contain. So that is something that would be an extremely bold, revolutionary move by the court.” As for the scientific evidence that playing violent games is actively harmful to minors’ development, Smith argued the studies presented by the state are too weak to stand up against the 87 researchers who signed on with the industry’s claim that “this is all hogwash.” “There is a group of psychologists out there who have made their careers trying to prove that there’s something wrong with video games, but their studies ... find these tiny little effects of maybe three percent more likely that you would be an aggressive school kid with violent video games,” he said. “But they don’t consider the possibility that the violent, more aggressive kids might like the more violent games, so they have all these methodological problems,” he continued. Smith also noted that the reality of the game industry’s ratings system enforcement provides a good answer to concerned parents who might support the state’s efforts. “There are FTC surveys that suggest the video game rating system is much more strenuously enforced than movie ratings or the sale of DVDs, where 60 percent of the time kids can buy R-rated DVDs,” he said. The Supreme Court will hear arguments in Schwarzenegger vs. Entertainment Merchants Association on November 2nd. The law being argued has been subject to an injunction preventing its enforcement since it was signed by Governor Schwarzenegger in 2004. Similar laws passed by eight other states and two cities have all been struck down by state or federal courts. The game industry has garnered formal support from ten U.S. Attorneys General and many other media groups in its arguments, while California has attracted friend of the court briefs from eleven states and many media advocacy groups.