Justices probe impact of Calif. law banning sales to minors

Supreme Court justices grilled both sides of the vidgame violence issue Tuesday as the high court heard oral arguments on the challenge to California’s ban on sales of such games to minors. Justices ultimately seemed skeptical of the constitutionality of the law enacted in 2005.

The members of the court seemed concerned about the First Amendment impact of siding with California in the case, Schwarzenegger vs. Entertainment Merchants Assn.

However, some justices also noted that the videogame industry seems to shrug off findings of groups such as the American Psychological Assn. and the American Pediatric Assn. that violent games do have a negative impact on children.

Justices immediately put California deputy attorney general Zackery Morazzini, who represented the state in the case, on the defensive by calling the law “vague.” The law would impose a $1,000 fee per violation to stores that sold these games to minors.

“A law that has criminal penalties has to be clear,” said Justice Antonin Scalia. “And how is the manufacturer to know whether a particular violent game is covered or not? Does he convene his own jury and try it before — you know, I really wouldn’t know what to do as a manufacturer.”

Concerned about putting any restrictions on the First Amendment, members of the court noted that restricting videogames could open the door to restricting other forms of entertainment — ranging from movies to children’s fairy tales.

“It has never been understood that the freedom of speech did not include portrayals of violence,” Scalia said. “What’s next after violence? Drinking? Smoking? Will movies that feature scenes of smoking affect children? … Movies that show smoking can’t be shown to children? Will that affect them? Of course, I suppose it will. But are we to sit day by day to decide what else will be made an exception from the First Amendment? Why is this particular exception okay, but the other ones that I just suggested are not okay?”

Justice Ruth Bader Ginsburg echoed Scalia’s concern about the law’s potential to be applied to other media.

“If you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games?,” Ginsburg said. “What about films? What about comic books? Grimm’s fairy tales? Why are video games special?”

The court will issue a ruling in the case by the end of June, when this term ends — though both sides are hoping for a decision before that time.

Should the Court rule that the California law is constitutional, legal experts fear that it could have a spillover effect into other entertainment industries — which is part of the reason the MPAA, AFTRA, DGA, SAG and others filed an amicus brief, siding with game companies.

“That (spillover effect is) one of the main arguments that the publishers and developers and other participants are raising,” says Miles Feldman, an entertainment litigator with BevHills law firm Raines Feldman. “The court shouldn’t be in the role — and law enforcement shouldn’t be in the role — of determining what’s too violent and what’s not. The slippery slope is does this apply to movies? Does this apply to paintings? Does this apply to books?”

On a more direct level, game publishers worry that a positive ruling for California could lead to industry-wide layoffs and a dramatic effect on retail relationships. Should the law stand, it’s likely that several other states would adopt versions of it that are similar to, but not precisely like, the law at the center of this case.

That could result in varying degrees of what too much violence is from state to state — meaning publishers would have to make multiple versions of the game in order to sell them nationwide. Otherwise, retailers such as Walmart could refuse to carry games, due to the dramatic changes they would have to make to comply with the law.

A victory, though, could give the video game industry some breathing room. Politicians have made game violence a stump point for years during election cycles. A backing by the Supreme Court that video games are constitutionally protected free speech with artistic merit could slow the tide of lawsuits it has faced.

While Justices did seem to initially side with the video game industry, they did have some pressing questions for attorney Paul Smith, who represented video game merchants.

Noting the industry’s repeated assertion that there was no conclusive study linking violent games to violent behavior in children, Justice Samuel Alito asked: “Is there any showing that the States could make that would satisfy you, that would say yes, that’s a sufficient showing for this law to go forward?”

Justices seemed unimpressed with claims that parental controls build into games and game consoles were effective in blocking objectionable content.

“Any 13-year-old can bypass parental controls in about 5 minutes,” said Chief Justice John Roberts.

Justices, however, did seem to accept Smith’s argument that new forms of entertainment are often demonized, since older generations don’t understand them.

“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,” Smith said.

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