Piki Politics: A Closer Look at the Decision in Brown v. EMA

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 closer look at the Supreme Court’s 7-2 decision in favor of the EMA in the case of Brown v. Entertainment Merchant’s Association. What implications does it have? What does the decision mean with regards to the future of the industry?

Representing the majority in his opinion,  Justice Antonin Scalia details the case in what has been called a “textbook” First Amendment opinion. Primarily pointing out that violence, unlike obscenity, is not a historical exception to the First Amendment, Justice Scalia spends much of the opinion using past precedents justify the Court’s decision. These include Joseph Burstyn v. Wilson, which gave films First Amendment protection, and U.S. v. Stevens, which found that videos of animals being tortured and killed qualified for First Amendment protection.

U.S. v. Stevens is also important in that it set another precedent which the Court would choose to abide by. In the Stevens decision, the Supreme Court explicitly declined to “carve out” new areas of speech that would not qualify for protection under the First Amendment. With the California Legislature justifying their new law by classifying videogames as obscene (and thus stripping them of their protections), it comes as no surprise that the Court would find in favor of the EMA. Since historically, only sexually explicit content has been disqualified from First Amendment protection as being “obscene”, the Legislature doomed their prospective law the second they decided to declare violent content as unprotected speech.

By noting a parallel between videogames and film, Justice Scalia has also signaled that gaming has gained entrance and acceptance into the mainstream. Although this might not sound important, mediums of speech have historically had a tough time gaining legal acceptance (and, subsequently, First Amendment protection) prior to gaining mainstream acceptance. Film was not a protected medium of speech until 1952 (Burstyn v. Wilson) , when the film industry had grown enough in size to become a part of American life. Likewise, in the early days of the videogame industry, games weren’t even considered a type of speech, let alone one that qualified for free speech protections.

It is important to note that though Scalia’s colleague Justice Samuel Alito’s opinion ultimately fell in line with the majority’s, it would be disingenuous to consider him as being in support of the gaming industry. In his concurring opinion, Alito finds in favor of the EMA not because of First Amendment issues, but because of the “vague wording” used to designate what would be considered “violent” content, per the law put in place by the California Legislature. This opinion sets a clear path for future challenges from the state of California (or any other state that happens to draft a similar law), provided they do a better job clarifying what constitutes violent content – a fact not lost on California State Senator Leland Yee, the law’s primary sponsor.

The sole dissenting opinion that deserves consideration is that of Justice Stephen Breyer. Breyer suggests that the law be upheld, claiming that the California Legislature was not attempting to define violence as new type of unprotected speech, but rather was attempting to use its regulatory power to protect the children of California. Justice Breyer suggests that the regulation is parallel to the statute upheld in the 1968 case of Ginsberg v. New York, in which the Supreme Court ruled in favor of prohibiting the sale of sexually explicit magazines to minors.

In drawing his comparison between videogames and “girlie magazines”, Justice Breyer misses an important distinction- that the gaming industry has largely regulated itself in this regard, particularly with the implementation of the ESRB’s ratings system. Though there may not be any laws explicitly banning the sale of Mature or ‘M’ rated games to minors, you would have one heck of a time getting any retailer to sell such games to anyone under 18 without a parent present. With many families already aware of the ESRB’s rating system and retailers voluntarily choosing to enforce it, the Legislature’s regulation is redundant and unnecessary.

(It is worth noting that I do not consider Justice Thomas’ dissent worthy of consideration, as the majority opinion itself does not.  His opinion boils down to children only having the First Amendment protections extended to them by their parents. The average Joe can skip this, though the Political Science majors and/or Constitutional Lawyers among us would find Justice Thomas’ opinion interesting as a case study of the “originalist” school of thought.)

So what does this decision ultimately mean for the gaming industry? First and foremost, this is a big win for the industry at large. In recent years developers and publishers alike had been operating under the assumption that their games were a protected expression of speech. The decision in favor of the EMA puts an official “stamp”, if you will, on this assumption and allows business-as-usual to continue throughout the industry.

It also gives the industry a powerful ace up their collective sleeve, so to speak, to be used in the event of future challenges to the protected free speech status that videogames now enjoy. Supreme Court decisions are based largely on precedents set in past cases and this decision sets a clear precedent in favor of the industry. Though there is no guarantee that decision won’t be reversed (indeed, the aforementioned U.S. v. Stevens, which gave films protected status as speech, was itself an overturning of a previous precedent), the odds have been stacked greatly in the industry’s favor. With recent history showing that gaming will be garnering a lot more political attention than in years gone by, this precedent is a great thing to have.

Next week, Piki Politics will be taking a look at the ongoing Breivik trial in Norway. Videogames have once again come under scrutiny, as accusations and rumors are abound over the alleged murderer’s status as a “gamer”. Why is it that videogames are constantly dragged into the picture in the wake of tragedy? Check back next week for this answer and more.

Recommended Reading
The Lawbringer: Supreme Court Decides Brown v. Ema by Matthew McCurley
What Clarence Thomas’s Video-Games Dissent Tells Us About ‘Originalism’ by Garrett Epps