Michael C. Dorf

The Supreme Court Considers Free Speech and Violent Video Games: A First Step Into the Brave New World of Virtual Reality?

By MICHAEL C. DORF
Monday, November 1, 2010

By MICHAEL C. DORF

Tomorrow, November 2nd, the Supreme Court will hear oral argument in Schwarzenegger v. Entertainment Merchants Ass'n (EMA). The case involves a challenge to a California law that restricts the sale of violent video games to minors. The U.S. Court of Appeals for the Ninth Circuit invalidated the law as a violation of the First Amendment.

The Court granted review on two questions: First, whether the sale of violent video games to minors even qualifies as presumptively protected speech; and second, assuming that it does, how much evidence of harm to minors must the state amass in order to proscribe such sales nonetheless? These are important questions about the scope of free speech doctrine, and I shall explore them below.

The EMA case also implicates a third question, which is both more basic and broader in scope: How does the Constitution apply to virtual reality? As technological change accelerates, virtual actions in video games (and other computer-generated simulacra of reality) will increasingly come to resemble real actions in the real world. At some point, a choice will have to be made as to whether to treat the regulation of virtual reality as tantamount to the regulation of reality itself.

The First Issue in EMA: Is There A Categorical First Amendment Exception for Violent Video Games Sold to Minors?

In the 1968 case of Ginsberg v. New York, the Supreme Court rejected a First Amendment challenge to a state law that forbade the sale to minors of certain sexually-themed magazines, even though the material in question would not qualify as "obscene" if it were sold to adults. No matter, the Court said: Although adults would have had a constitutional right to purchase the proscribed material (quaintly described in Justice Brennan's opinion as "girlie magazines"), the Court reasoned that the interests of both the state itself and of parents (for whom the state was acting as proxy) justified a more restrictive approach to minors.

Interestingly, the Court did not say in Ginsberg that laws restricting the sale of sexual material to minors must satisfy the demanding "strict scrutiny" test that is ordinarily applicable to regulations of speech. Instead, the majority opinion found it sufficient that the state's definition of obscenity with respect to minors was rationally related to its goals. The "rational relationship" test represents the minimal level of scrutiny that the Court applies to laws that infringe no constitutionally-privileged rights, and thus, Ginsberg has subsequently been read to establish the proposition that material that is "obscene for minors" is categorically unprotected by the First Amendment, in the same way that obscenity for adults, fighting words, true threats, and a small number of other categories of speech are deemed unprotected by First Amendment doctrine.

Although violent video games (such as those in the "Grand Theft Auto" series) often feature sexual themes (such as violence directed at prostitutes), the California law does not single them out because of their sexual content. Rather, violence triggers the law's restrictions. Thus, the law at issue in the EMA case does not clearly fit within the Ginsberg obscene-for-minors exception to free speech. Instead, the first question on which the Court granted review may best be understood as really asking whether the Court should recognize a new category of proscribable speech, consisting of material that is too violent for the sensitivities of minors.

Recent precedent would suggest that the state will have difficulty making the argument successfully. Earlier this year, in United States v. Stevens , the Court invalidated a law forbidding certain depictions of cruelty to animals. En route to that decision, Chief Justice Roberts explained for the 8-1 majority that the Court was not likely to recognize any new categories of unprotected speech.

Accordingly, California's best hope for winning on the first question may be to persuade a majority of the Court that the Ginsberg exception already covers violence that is inappropriate for minors. Although the Ginsberg case itself involved sexual material, the argument goes, it was based on the broader notion that much of the robust, wide-open, and even offensive speech which adults in a democracy must tolerate is nonetheless inappropriate (and thus constitutionally-unprotected) for minors.

This argument links Ginsberg to other cases involving minors' sensitivities, such as FCC v. Pacifica Foundation, the 1978 case that upheld the power of the federal government to limit the times during which certain indecent but non-obscene material could be broadcast on the radio. That particular case involved the afternoon broadcast of George Carlin's "filthy words" monologue. In upholding the government's regulatory power, the Court made much of radio's easy accessibility to children.

Whether California can persuade the Court that there exists a longstanding categorical exception to the First Amendment for material that is deemed inappropriate for children remains to be seen. The federal appeals courts have uniformly rejected the argument--but the Justices have somewhat greater latitude to interpret their own decisions than do lower court judges.

The Second Issue in EMA: If Material Deemed Inappropriate for Minors Can Be Regulated, Which Side Bears The Burden of Proof?

Even if the Court finds that the First Amendment contains no categorical exception for material inappropriate for minors, California could still prevail by showing that the law satisfies the strict-scrutiny test. California argues that it does. The law does not ban sales of all violent video games to minors; it only restricts those involving "killing, maiming, dismembering, or sexually assaulting an image of a human being," and then only when certain other conditions--partly modeled on the requirements for legally-proscribable obscenity--are satisfied. Even then, parents who wish to buy or rent such video games for their minor children are permitted to do so.

The state argues that the community's concern for the impact of violent video games on minors justifies the ban. Although the state points to evidence of harm that playing violent video games does to minors, the Ninth Circuit found this evidence insufficiently strong to sustain the ban. One question that the case poses is whether the social-science evidence to which the state points truly establishes a causal link between playing violent video games and harm to minors.

But the Supreme Court is not especially good at, or interested in, resolving factual disputes. The key issue in the case, should the Court reject the state's argument for classifying violent video games as categorically unprotected for minors, is which side bears the burden of proof.

Typically, the government must bear the burden of proving that a law restricting freedom of speech is necessary to promote a very important (or in legal jargon, a "compelling") interest. In this context, however, the state argues that legislators should be permitted to rely on the common-sense view that material that may be suitable for adults is not suitable for minors. That premise, the state says, underlies much regulation of minors' access to materials to which adults have a legal right; and thus, the state argues that the video-game industry should bear the burden of proving that the products the law bans for minors are harmless.

Are Video Games Different From Other Media?

In its posture before the Supreme Court, EMA presents the Justices with a choice of comparisons. The state asks the Court to view violent video games as analogous to tobacco, alcohol, and sexually-explicit but non-obscene material--products that adults may choose to purchase, but that the state and parents may legitimately try to keep out of the hands of children.

By contrast, the video-game industry portrays the California law as a form of censorship. Consider the opening lines of the Respondents' brief on the merits: The California law, it asserts, "is the latest in a long history of overreactions to new expressive media. In the past, comic books, true-crime novels, movies, rock music, and other new media have all been accused of harming our youth. In each case, the perceived threat later proved unfounded. Video games are no different."

In an earlier column on this site, Julie Hilden made much the same point: There is no principled way to distinguish between violent video games and descriptions or depictions of violence in other media. Thus, respondents, their amici, Hilden, and other commentators argue, just as the First Amendment should not be construed to permit censoring violent books--even for children--so it should not be construed to permit censoring violent video games, even for children.

The Virtual Reality of the Future

Given current technology, the video-gaming industry and its defenders probably have the better of this argument. But that may not always be true--and it is important to understand that the video-gaming industry wants its games to eventually become something very different from other expressive media. Technology simply has not yet caught up with the industry's aspiration.

A gamer playing a contemporary video game typically sits or stands before a screen using a joystick or other device to control the movements of his on-screen representation, or avatar. Well-designed games are immersive. Wii consoles and like products can realistically translate a player's motions into motions by the avatar. Aided by the firing in the player's brain of mirror neurons, the game creates an identification between player and avatar.

Nonetheless, almost no one who plays currently available video games would literally mistake his on-screen avatar's actions for his own. The identification between player and avatar can be recognized as a simulation.

Yet eventually, video games may create a much more real virtual reality--something akin to the way in which the Marines in the film "Avatar" experience their avatars, or, if your views run more to the dystopic, the way in which people plugged into the Matrix experience the simulated reality of the "Matrix" films. Regulation of such extraordinarily realistic virtual worlds may be more like regulations of the actions of the gamers, than like regulations of the speech of the game designers.

To see why, imagine a law forbidding the sale of toy guns to minors in the real world. Such a law may or may not be a good idea. But it is not in any obvious way a regulation of speech. To be sure, the state's purpose in enacting such a law could well be related to ideas: Kids who play with guns, the legislature could reasonably think, will be disinhibited from engaging in real violence. Somewhat surprisingly, Supreme Court case law does not definitively resolve the question of whether a law that targets physical actions, but aims to shape people's attitudes, counts as a law regulating speech. There is at least a substantial possibility, however, that the Court would treat a law banning sales of toy guns to minors as not even raising a First Amendment issue.

Should the law treat the purchase of a virtual toy gun any differently? The experience of shooting seemingly-real people via an avatar is more like the experience of firing a real gun at real people than is the experience of playing with a toy gun. And that raises the question of whether the experience of firing a virtual gun in a currently- available video game--or otherwise participating in violence--is very different from playing with a toy gun.

Given the questions on which the Supreme Court granted review in the EMA case, the Justices will not have to decide these issues, but they are hardly hypothetical. Already, the realism and interconnectivity of the virtual world have created difficult legal questions in areas such as tort law, jurisdiction, and taxation. Challenges to our understanding of the First Amendment, and the Constitution more broadly, cannot be far behind.


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. His latest book is   The Oxford Introductions to U.S. Law: Constitutional Law   (with Trevor Morrison). He blogs at dorfonlaw.org.

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