The playable, eponymous character of the PlayStation 3 and Xbox 360 game Naughty Bear (above) murders fellow teddy bears with a variety of weapons, including an axe, in the T-rated game.
Despite being a big fan of Phoenix Wright: Ace Attorney, I’m admittedly not an expert on the justice system.
This doesn’t mean, however, that I didn’t take notice of an important U.S. Supreme Court hearing last week.
On Nov. 2, the Supreme Court heard the case of Schwarzenegger v. Entertainment Merchants Association. Don’t know it? Let’s get you caught up.
Back in 2005, California state Sen. Leland Yee picked up the mantle as the new champion against video games. A child psychologist, he claimed that violent games could cause children harm unlike any other medium. He eventually wrote up a bill, signed into law by Gov. Arnold Schwarzenegger, that would fine retailers up to $1,000 for selling games considered violent to children under 18.
The video-game industry sued, and the U.S. District Court for the Northern District of California and the 9th U.S. Circuit Court of Appeals both sided in its favor, finding the law unconstitutional because it violated the First and 14th amendments.
Now the Supreme Court has heard the case, and its decision will lead either to the death of this law or a surprise comeback for the legislation.
Let me say that I absolutely think the sale of games should be regulated in some form. Like movies and music, some games contain content that is inappropriate for children. I think the Entertainment Software Rating Board’s system does this job quite well, but the California law takes it a step further. If the Supreme Court finds the law constitutional, “violent” video games will only be sold to adults — think of it like going into the back of a video store to purchase pornography. It’s the same idea.
In fact, Chief Justice John Roberts alluded to that idea during the hearing.
“Could you have a law that says the State has to put … video games in a particular area of the video store? … [A]nd minors are not allowed in that area?” he asked.
Yee has put Postal 2 in the spotlight for its gratuitous violence — he is correct in that regard. If you look the game up on YouTube, you’ll see some footage that can be described as “heinous, cruel or depraved,” as the law states. I couldn’t give you a good reason for a game like that to be made. It’s positively disgusting. But the First Amendment, for better or for worse, grants developers the right to make these games without penalty.
During the hearing, Justice Sonia Sotomayor pointed out, “To me, it’s not entertaining, but that’s not the point. To some it may well be.”
But Postal 2 is a high bar to set for game violence. If we take apart the descriptions of this law, it could apply to many games.
Part of the law defines what makes a game violent and therefore illegal for children to purchase. The first is that a “reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.”
Secondly, the material must be “patently offensive to prevailing standards in the community as to what is suitable for minors.”
Lastly, the content must cause “the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”
These three measures are extremely unclear. What is considered of “morbid interest” to one may not be the same for another. How is “minor” defined? The ESRB system clearly breaks up the age groups into “Early Childhood,” “Everyone,” “Everyone 10+,” “Teen,” “Mature” and “Adults Only” (which most retailers don’t carry). During the hearing, California Deputy Attorney General Zackery Morazzini argued that games should be classified for minors “as a class” — either younger than 18 or 18 and older.
Another part of the law is more clear, stating that the game “enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.”
Well, that clears things up. The subject has to be human. What about last summer’s critically panned Naughty Bear? Players beat up and kill other anthropomorphized teddy bears (another concept that I don’t see particular value in). They aren’t human, so it would pass the bill’s scrutiny.
Which gets to my point — we can’t pick which games are violent based on these terms. Is it OK to ensure games are only sold to appropriate audiences? Absolutely.
But if you’re going to stray from the ESRB rating system, you better have a clear-cut way of deciding exactly what should be restricted from getting into the hands of minors.
And these games already aren’t supposed to be sold to kids. M-rated games can only be sold to those 17 or older. How do kids get them?
Oftentimes, their parents buy them. If a fourth-grader is playing Naughty Bear, his or her parent has the responsibility to notice not only the rating but also the bear wielding a machete on the front of the box.
Although the law has already lost in lower courts and the law is in blatant disregard of developers’ First Amendment rights, it doesn’t mean it’s a waste of time for the Supreme Court to hear the case.
“We have here a new … medium that cannot possibly have been envisioned at the time when the First Amendment was ratified,” Justice Samuel Alito said. Indeed, a case on video games is not only groundbreaking but may also decide the fate of the future and legal content of interactive media.
I fear that this case will further isolate video games from other arts — books, movies, television, theater and music — all of which can contain material that isn’t suitable for children. The attack on video games is a blow to the credibility of a growing and creative industry.
There are games that are violent for the sake of violence (once again, we have movies and books like this, too). I don’t support those titles. But for every game like Postal 2, there are games that tell stories with intricate plots and themes, making artistic statements.
Yes, violence may be one vehicle of driving a plot along, but it shouldn’t be the only one.
The Supreme Court has until the end of June to make its final decision on this case, so it could be hotly debated for a long time. I hope the court spends that time carefully considering this issue and the effects it will have on the industry, not to mention First Amendment rights, for years to come.
But I want to make this clear: The California law is subjective. There is no clear way to decide which games can be banned from sale to minors. And the law is redundant because there is already a system in place for ensuring games are not sold to inappropriate audiences.
The existing system is a good one. Rather than making a fuss and stifling the video-game industry’s creativity, let’s improve the ESRB rating system to make it easier for parents to protect their children.
The law should be found unconstitutional. Some games feature violence, and some games go overboard. But developers and publishers put hard work into their art, and regardless of your personal belief in their appropriateness for a certain age range, they have a constitutional right to produce and sell their games.
Now if you’ll excuse me, I’ll go back to shouting “Objection!” into my Nintendo DS until the decision has been made. My Ace Attorney defendant isn’t representing himself, you know.
afreedman@umdbk.com
