Piki Politics – Brown v EMA

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Jun 10th 2012 12:00 PM by Michael Launay

Let’s face it – like it or not, as videogames become more and more mainstream, we’re going to see more and more instances of politics and gaming intersecting. Piki Politics is here to serve as both a history of political/gaming scandals (or collisions, if you prefer) and as a discussion on the political motivations and context behind them.

Today I’ll be taking a look at the Supreme Court decision of Brown v Entertainment Merchant’s Association.

In 2005, the California State Legislature passed CA Law AB 1179. Sponsored by California State Senator Leland Yee (D), the law banned the sale of violent videogames to minors and required that all “obscene” titles include special labelings that stated that the games were unsuitable for persons under the age of 18. Additionally, any retailer caught violating the law would be subject to a $1,000 fine.

In order to accomplish this, the Legislature used the “Miller Test”, a three-pronged criteria used by the Supreme Court in the case of Miller v. California to determine whether speech or expression can be labeled “obscene.” Historically reserved for sexually explicit content, the Miller Test is laid out as the following

(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Any work that meets the above criteria is determined to be obscene and as such does not fall under the protection of the First Amendment.

The law caused waves throughout the gaming industry. Publishers and developers alike had enjoyed the protections afforded to videogames by the First Amendment. However, if the Courts were to uphold the law, then “obscene” (read: violent) videogames could find themselves subject to sweeping legislation and censorship throughout the country. Realizing this, the Video Software Dealers Association filed suit against the state, claiming that AB 1179 was unconstitutional.

In order for the law to actually be upheld by the Courts, the State would have meet the standard of strict scrutiny; the law must address a compelling government interest, it must be narrowly tailored, and must use the least restrictive means necessary to achieve its goals. To meet this standard, the State based much of its argument on the violent effects research of Dr. Craig Anderson. Anderson’s research has been heavily criticized over the years, a trend that would continue through California’s Appellate Court system when both the District and Ninth Circuit courts would find the research insufficient to support the State’s case.

When the case finally reached the Supreme Court of the United States, the Justices struck down the law as unconstitutional, claiming that not only had the State not met the standard of strict scrutiny, but that their evidence and research did not show any causal link between videogames and violence. The Court took particular issue with the legislature’s use of the Miller Test, stating that the legislature “cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test.”

Like past topics I’ve written about for Piki Politics, Brown v. EMA is rooted in the myth that violent videogames have a detrimental effect on children. While research on the subject may be mixed, the vast majority of it has found that there is no definitive link between violence in videogames and aggressive or violent behavior in children. What little research that has found any sort of link (specifically that of Dr. Anderson) has come under heavy scrutiny over the years, with Supreme Court Justice Antonin Scalia himself stating that “studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively” in his majority opinion.

Yet still the myth persists. Time and time again, we’ve seen misguided legislation on both the state and federal level, made with the intention of addressing the “issue” of violent or otherwise offensive videogames, often times targeting retailers (a recent example can be seen in the Violence in Videogames Labeling Act). Not only is this legislation unnecessary, it’s also redundant. You would be hard pressed to find a retailer, big or small, that will sell games rated by the ESRB as Teen or Mature to minors without a parent present. With the industry regulating itself, legislation targeting retailers misses the mark and completely ignores the fact that many minors who are exposed to violence in videogames are doing so with their parents’ consent.

Beyond redundancy, Brown v. EMA highlights a peculiar trend that has developed in recent years, one that has sprung up on all levels of government. The use and ignoring of Supreme Court precedents by governments, both state and federal, in an attempt pass legislation which they know won’t stand up to legal scrutiny. Precedents such as the Miller Test were set in place to give legislative bodies a clear idea of what is and isn’t considered constitutional. Contrary to this, many of today’s legislators have taken to using them as a means to have biased or unconstitutional legislation put into place. The US Congress has become particularly notorious for this, using the “Commerce Clause” to justify and pass otherwise unconstitutional legislation

In the case of Brown v. EMA, the California Legislature used the Miller Test in attempt to have violent videogames labeled obscene, stripping them of their First Amendment protections and allowing the state to legislate them as the pleased. Modifying the Miller Test to include violent content not only goes against the spirit of the law, but ignores countless legal precedents that have deemed violent content applicable for protection under the First Amendment. It’s one thing if the Legislature wants to regulate videogames, but they could at least go about doing so legally.

Next week, I’ll take a closer look at the actual ruling and majority opinion in Brown v. EMA. What kind of precedent does it set? Should the industry see this as a victory, or be wary of the future? Check back for these answers and more.