Editorial: Schwarzenegger v. Entertainment Merchants Association

Violence is cool.

There is no other way to go about saying it; it is. Violent actions taken by an individual against another without provocation or necessity are wrong, both morally and criminally. My day is literally filled with arguing for the official censure of such behavior.

But that does not take away the inherent mystique in violence and conflict. I have studied various martial arts for many years… why? Because the sort of physical skill involved in martial prowess is a good way to test one’s self, and let’s face it… fencing is cool and fun because it is a safe and responsible way to practice what was once a violent and bloody art.

Adults, or at least those with sufficient emotional maturity, can separate awesome and cool fantasy violence from real, scary and hurtful violence. For instance, my own parents never restricted the type of TV, movies, video games or books I was allowed to play as a child, and I was no more violent than the average boy at my schools. Yes, I got in to fights, but I grew up in the modern-day equivalent of the Wild West. A few fistfights are year were considered normal for someone that was not a wimp.

As I have said before, conflict is necessary to advance plot, and the easiest and most common form of conflict in games is violent confrontation between the protagonist and his or her antagonists. This may range from cartoonish, half-baked animation (like a turn-based RPG on the DS) to frighteningly lifelike and bloody (any shooter on the Xbox or PS3). Our settings for conflict range from real-world, current wars to distant planets… and it is all just groovy.

For us. For you and me. For adults.

For kids, I am not so sure.

Thankfully, the great and sovereign state of California (motto: we elected an action movie star to preside over a bill that would restrict such content from minors) has appealed to the most august judicial body in the land (no, not mine), the United States Supreme Court, to decide whether there is a First Amendment right to the sale or consumption of violent video games.

Let me break it down: the First Amendment to the United States Constitution prohibits the federal government and any state government from enacting a law that violates the “free expression” of a person. Thus, an author cannot be legislatively or executively prevented from publishing a book unless it falls within a narrow class of exceptions. A consumer that wants to read the book may purchase and read the book without fear of government censure.

What is this I don't even
This will haunt my dreams for all eternity.

But what about those “narrow exceptions?” Turns out, they might not be so narrow.

All laws passed by the federal or state government must meet certain minimum standards of “constitutionality” in order to be valid. That is, depending on the type of law, they will fall under one of three categories of “review.” For purposes of this article, we will discuss two of them: “strict scrutiny” and “rational basis.”

Rational basis is the least onerous form of review, reserved for those laws that do not impact significant rights. In this form of the review, the opponent of the law (the citizen) must prove that the government had no rational basis, that is, if the purpose of the law is rationally related to a legitimate governmental interest. In other words, the means chosen to effect the governmental interest must not be arbitrary or irrational.

Strict scrutiny, on the other hand, is applied only to those laws that affect significant rights. A law is valid under strict scrutiny if the government possesses a compelling state interest (not merely a legitimate one, but an important interest), and the means chosen are absolutely necessary to satisfy that interest. There must be no less-restrictive alternative methods of achieveing that interest available. For example, a law requiring that pornography be sold only in a certain section of the store gated off from the general public is less-restrictive than simply restraining all production of pornography.

Unsurprisingly, much of the fight in Schwarzenegger v. Entertainment Merchants Association (at least in the briefs; oral argument is set for November) is over which is the proper standard. (Brief for the State; Brief for the Respondent)

First, let us identify the governmental interest at stake: protection of the welfare of minors. This is at least an important governmental interest. It is most definitely legitimate, and has, in the past, been held to be compelling (for example, the case of Ginsburg v. New York, which restricts the sale of material perfectly legal to adults to children, applies this very standard). So under either basis, apparently the government could carry its burden of demonstrating a sufficient basis.

The question then morphs into the precise relation of the regulation to achieving that end. As stated by California in its brief, their goal is to restrict the sale of violent video games to minors without a parent’s consent. Consider it analogous to my own situation: my parents allowed me to play violent video games, and in doing so, they made a judgment call about my maturity and the nature of the content I was experiencing. California says that as long as parents make the decision for children, they will not violate the law.

The Sixth Day Movie Poster
Unfortunately, Justice Scalia cannot protect us from The Sixth Day.

And that is reasonable; after all, aside from teenagers, very few children are able to make video game purchases without a parent present. But that leaves a crucial 2-3 years where a minor might have sufficient income to make a purchase and be unable to do so due to no parent being present at the sale.

What I find curious is the State of California’s unnecessary insistence that violence is, like pornography, potentially obscene, and therefore the proper subject of restriction because it enjoys no First Amendment protection. Strictly speaking, this is not a necessary prerequisite to regulation under either a rational basis or strict scrutiny standard, as long as violence is something that justifies government intervention on the part of minors. The social science behind the State’s position is admittedly in its infancy and should be taken with a grain of salt, but exposure to violent entertainment is at least a risk factor for violent action later in life. Certainly, no one complains that the movie rating/gating system (no under 17s for an R without a parent, for example) is a failure or unduly restrictive of free speech.

What I find even more curious is the amount of time the EMA spends refuting this argument. Tactically, I think that is a blunder. Their argument reads as if the State of Califonria were exercising some form of prior restraint over the content-makers, rather than a commercial regulation about who can purchase that content. The better argument from the EMA’s perspective is not that children have a right to interact with violent media, but that the law unfairly interferes with private businesses setting their own policies for the sale of media, bringing this case within the commercial speech purview rather than fundamental rights. The problem, however, is that doing so would probably force them to abandon a “strict scrutiny” standard of review, and I do not think the EMA could prevail absent a strict scrutiny standard.

The EMA continues to miss the point when it frames the regulation as “banning” speech to minors. Very plainly, it does not. It does not criminalize the use of such games by children, or inform parents that social services will be by to check for child abuse if a parent purchases a game. It leaves the decision of what to allow Junior to play with the parents, which, when phrased that way, sounds sort of reasonable. Their stated argument that the government cannot, in the first place, determine what categories of entertainment the parents should potentially restrict is baseless. The EMA argues that many parents find different things offensive, from evolution to Harry Potter, and so therefore it makes little sense to keep these things in the “adults only” section of bookstores.

That is true; although it appears that violence is singled out here, the reason it is singled out is not merely because parents find it offensive or against a good Christian upbringing, but because the government has identified, as an empirical matter, that violence in depiction in art is a significant risk factor for violence in behavior. Now, whether this is true or not is not necessarily for the courts to decide; it was something that the state legislature of California had to decide, and the high Court is only going to intervene if it appears that the legislature acted arbitrarily and capriciously in choosing which testimony on the subject to believe.

Thus, the EMA finally gets around to refuting this in the latter part of the brief, where they critique the work of psychologist Dr. Craig Anderson, showing the litany of cases where his research was cited as unpersuasive. This, however, is not the sum total of the evidence given.

As I stated before, the science is mostly inconclusive. Everyone agrees that it has some effect on people, and that new media of transmission require further study. Exposure to violent writing or imagery is at least a cause for further study and concern, and in the end, the restriction posed by California is so minimal that I do not believe it to be any actual threat to liberty. Getting out my betting sheet, I am calling this one to go to the State of California in a 7-2 opinion (Kagan and Breyer in the minority), with Justice Roberts writing the opinion for the majority. Scalia will write a concurrence in the judgment, and the general theme of the opinion will be that protecting children is a compelling interest, and the State of California’s chosen means are only slightly restrictive, and the Court will declare depictions of violence protected speech that nevertheless can be forbidden to minors, or at least children under 16.

In the interests of my usual levity though, read this amicus brief by known crackpot Andy Schlafly. Apparently, to him, playing a video game is the same as gambling (conduct restricted from minors) because they are both forms of games. Not even close, Andy. First off, the sale of games is commercial activity. Second, the design and production of games is content-production. Something tells me that Andy has not played a video game since the days of Pong. Might I recommend the rather violent Left Behind game as an example of good, Christian entertainment?


  1. I’m not pipped off, just busy conventioning. I’m back now though! Huzzah!
    Here’s what I was going to post…
    1) Why would you put that picture in? Are you trying to fry our brains? Only Jenifer will be able to look at that without her eyes melting away.
    2) I just don’t understand why certain states think that somehow, the age rating system is invalid. None of the research into the correlation between exposure to video games and actual agressive behaviour has been definite (Psychology Studies for the win), and if the parents think that somehow what their kids are buying is inappropriate, don’t let them buy it!
    3) I am using all of this as quotes for my French essay on the effects of violent television on young children.

  2. I’m afraid that parental regulation is a concept entirely foreign to most people, who are wont to blame the lack of governmental oversight the moment their idiocy leads them astray, but then offer profuse complaints the moment that that the government moves to plug the hole that their wits have vacated.

    -Also, why that picture, you cruel man?!

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