Video games on trial

As many gamers are aware, the Supreme Court of the United States will start hearing oral arguments in the case of Schwarzenegger v. Entertainment Merchants Associations/Entertainment Software Association on November 2. At issue is the constitutionality of a 2005 law prohibiting the sale or rental of violent video games to minors.

The EMA and ESA appealed the law after it was signed by California Governor Arnold Schwarzenegger, which eventually led to a permanent injunction being issued to block the law from taking effect. The state of California then challenged the injunction in the Ninth Circuit Court of Appeals in late 2007, and in 2009, the court ruled the law was unconstitutional, prompting Governor Schwarzenegger and Attorney General Jerry Brown to take the case to the Supreme Court.

In part one of our five-part feature on the upcoming Supreme Court case, we will examine the contents of Assembly Bill No. 1179, aka the Act, to see, not only how it defined violent video games, but what it proposed be done to keep them out of the hands of minors.


The bill in question was drawn up by then California Assemblyman, and now Democratic State Senator, Leland Yee. Yee has been a longtime opponent of violence in media, especially video games, and made a name for himself by sparking the now infamous “Hot Coffee” incident involving a hidden sex mini-game in Grand Theft Auto: San Andreas.

As you'd expect, Yee submitted an amicus curiae brief (read: a brief filed arguing for a party involved in a case) in support of California in its upcoming Supreme Court case. In his brief, Yee made it quite clear that his position on and perception of video games hasn’t changed:

“These violent video games…can contain up to 800 hours of footage with the most atrocious content often reserved for the highest levels and can be accessed only by advanced players after hours upon hours of progressive mastery.”

Understanding where Yee is coming from is helpful when looking at the Act at the center of this whole debate. As stated in Assembly Bill No. 1179, the proposed legislation “would require violent video games to be labeled…and would prohibit the sale or rental of those violent video games, as defined, to minors. The bill would provide that a person who violates the act shall be liable in an amount of up to $1,000 for each violation.”

The classification of “violent video game” causes quite a few problems when you try to determine which games it should apply to and which ones it should not. However, to California, a “violent video game” is defined as one in which “the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being.”

There are three additional elements that factor into this definition of violent video games, and these elements become especially important when it comes to arguments relating to how the First Amendment applies to video games as a whole. When California is talking about violence being depicted in video games, it is judging it based on whether:

1. A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
2. It is patently offensive to prevailing standards in the community as to what is suitable for minors.
3. It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

The Act goes on to define video game violence as that which, “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.”

Unsurprisingly, the Act further describes terms like “heinous” and “depraved” as portrayals of violence that “involve additional acts of torture or serious physical abuse of the victim as set apart from other killings” and that demonstrate that the player “relishes the virtual killing or shows indifference to the suffering of the victim,” respectively.
The other definitions laid out in the Act are as follows:

* “Cruel” - The player intends to virtually inflict a high degree of pain by torture or serious physical abuse of the victim in addition to killing the victim.
* “Serious physical abuse” - A significant or considerable amount of injury or damage to the victim’s body which involves a substantial risk of death, unconsciousness, extreme physical pain, substantial disfigurement, or substantial impairment of the function of a bodily member, organ, or mental faculty. Serious physical abuse, unlike torture, does not require that the victim be conscious of the abuse at the time it is inflicted. However, the player must specifically intend the abuse apart from the killing.
* “Torture” - Mental as well as physical abuse of the victim. In either case, the virtual victim must be conscious of the abuse at the time it is inflicted; and the player must specifically intend to virtually inflict severe mental or physical pain or suffering upon the victim, apart from killing the victim.

When taken as a whole, these specifications are designed to differentiate between simple virtual killing and that which includes “infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victim’s body, and helplessness of the victim.”

From there, the Act goes on to propose that it would be illegal to sell a violent video game to a minor (unless it’s sold to the minor by his/her parent, grandparent, aunt, uncle, or legal guardian). The Act goes a step further and requires “violent video games” to be “labeled with a solid white ‘18’ outlined in black” on the front cover, presumably in addition to the ESRB rating label that all games currently carry. Should a retailer be found selling “violent video games” to a minor, they could be fined up to $1,000, or less depending on what the court decides.

And there you have it: The reason why the Supreme Court of the United States will soon, for the first time, address what Constitutional protections should be afforded to video games. Tomorrow, in Part Two of our series, we’ll look at the arguments presented by the state of California to the Supreme Court. Pro tip: If you found yourself clenching your fists reading about the Act and its portrayal of violence in video games, you might want to bite down on a piece of wood before you check out our examination of California's case.


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