Is there a problem with violence and/or other adult themes in video games?
The last time I spoke on this very topic people were more interested in a photoshop of Arnold Schwarzenegger in a bathing suit that patient legal analysis, which is to be expected from this lot, I suppose.
Now the justices have heard oral argument. For the uninitiated, oral argument is that magical moment in an appellate attorney’s life when we get to be as cool and flashy as our trial lawyer counterparts, but without their sheer animal magnetism. It is akin to the stuffiest of stuffy professors asking rapid-fire questions of that annoying student in class that just has to have an answer for everything.
It is what I live for.
I have thus far been able to unearth a transcript of the oral argument, but many sources, including my fave SCOTUSblog, have been discussing the oral argument in nerdy detail. For an idea of just how hard appellate attorneys geek over this stuff, it would be something like Shawn getting to read the developer’s transcripts from Nintendo offices when they get to make up new Poke-things.
In short, those of you that wanted to side with Truth, and Freedom, and the Right of Kratos to Totally Slaughter Some Motherfuckers seem to have “won,” though we will not actually see the decision for some time. Some of the justices, including Antonin Scalia suggested that new technology always departs from “established norms” and will always been seen as more prone to moral corruption.
Justice Ruth Bader Ginsburg, on the other hand, was quick to note that California law does not make a distinction between 4-year-olds and 17-year-olds, although clearly what is age-appropriate would be vastly different for the two ages.
Life was not all sweets and properly-formatted briefs on crisp new paper for the video games industry. Their lawyer made what most of us would consider to be a fairly conventional argument, that depictions of violence have always been a part of children’s entertainment in this country. Chief Justice John Roberts (who is probably not a fan of Poke-things), rejoined that “We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down … Pour gasoline over them, set them on fire and urinate on them …We protect children from that. We don’t actively expose them to that.”
Now, admittedly, I am not familiar with the game that contains all of these elements, and quite frankly, I am not sure that I would want to.
Things remained rocky for the video games lobby. Their justice committed the elementary mistake of not telling the justices what kind of regulation would satisfy him. From a tactical standpoint, this is akin to admitting that one could never be convinced by his opponent’s position. This did not sit well with Justice Sotomayor, who stated, “How can you say that? There is still proof out there and an abundance of it that kids are buying these games.”
This makes it difficult to predict how the argument will pan out; unlike more politicized issues, where the Court divides along fairly stark ideological lines, this issue spans the liberal/conservative divide and reaches across all philosophies of Constitutional construction. Were I to guess, I would hazard that the California law will be found unconstitutional, but a significant amount of dicta, or perhaps a concurrence written by Kagan, Scalia or Sotomayor will be devoted to exactly what kind of law would have satisfied the Court.
In the evolving area of regulation of new and emerging content, this is but the opening salvo by a government looking to regulate children’s access to violent media. Digital delivery, online content, downloadable content, and so on will continue to create ways to perplex and challenge legislators attempting to keep up with emerging trends. Perhaps we, as gamers, ought to be more involved in the process, so that our hobby is not regulated by outsiders.