Schwarzenegger says “I’LL BE BACK…in court to appeal the injunction on my video game sales law”. Part 3

Posted by Liz Surette on October 28, 2008

Introduction

This is the third installment of my series on California’s statute which bars the sale of violent video games to minors. In Parts 1 and 2, I gave background information on the substance and procedure that led Justice Whyte of the US District Court for the Norther District of California, San Jose Division to strike it down.  As you may know, the federal Court of Appeals for the Ninth Circuit will hear the state’s appeal of the permanent injunction of the law in question this Wednesday. Therefore, I will be offering my prediction of the outcome based on judicial precedent.

Part 1
Part 2

When a Court of Appeals must decide whether a statute is constitutional, and they do not have an example to follow from their own case law, they will look to the other federal courts for guidance. However, the Ninth Circuit encompasses the District Courts of California and Washington, and both of those jurisdictions have failed video game sales restrictions. Washington’s statute forbade the sale to a minor of any video game that contained images of violence against law enforcement personnel, and was struck down due to a lack of evidence that those images cause minors to become more violent.  Although this precedent is promising and will be persuasive on the court, the Justices will also look to the other Circuits and their underlying District Courts to see how they decided similar cases, and to determine whether or not they agree.

Comparison to the Failed Louisiana Statute
By way of example, the statute at issue here is particularly analogous to Louisiana’s game sales restriction law that was similarly barred from enforcement. Both laws forbid the dissemination of violent video games that are harmful to minors, and both contain nearly identical definitions of what makes a game so. Under both statutes, a video game containing explicit violence shall not be disseminated to a minor without parental consent if the game, considered as a whole:

-Appeals to the “morbid interest” of minors, which the LA statute goes on to describe as an interest in asocial, agressive behavior,
-Is patently offensive to contemporary local community standards (of adults) as to what is suitable for minors, and
-Lacks serious literary, artistic, political, educational, or scientific value for minors.

The US District Court for the Middle District of Louisiana issued a preliminary injunction barring enforcement of that statute for essentially the same reasons Justice Whyte enjoined the California statute. Similar laws in other states have also been struck down, see below. But suffice it to say there is much precedent for the Ninth Circuit to observe which would persuade it to find the CA law unconstitutional.

Conclusion
To put it plainly, Schwarzenegger’s law restricting the sale of violent video games to minors will most likely fail. Even though a few states have laws regulating video game sales that have passed constitutional muster, those valid laws are very narrowly drawn. Laws requiring in-store displays of rating information or forbidding the sale of pornographic video games to minors are a far cry from those that groundlessly restrict the sale of violent video games based on unsubstantiated allegations of psychological harm. So, I’m cautiously optimistic that the Ninth Circuit’s judgement will herald the “End Of Days” for California Civil Code section 1746-1746.5.

Brief Listing of Some Other Failed Laws
-An Indianapolis ordinance requiring parental presence in order to play violent arcade games was struck down because violent video games cannot be categorized as obscenity.
-A St. Louis County ordinance prohibiting the sale of violent video games to minors was unconstitutional because there was no substantial evidence demonstrated a link between video game violence and aggressive thoughts and behavior.
-A Minnesota state statute prohibited anyone under age 17 to rent or sell an AO- or M-rated game to anyone under 18 was struck down because there was no evidence that such a regulation would serve the state’s interest in protecting minors’ health.
-A Michigan statute prohibitting the sale of “ultra-violent explicit video games” to minors was unconstitutional because the state failed to prove the causal link between video game violence and aggression. The court also noted that such a regulation would have a chilling effect on the free expression of the game industry because they would feel compelled to create games that fell outside of the statutory definition of “ultra-violent”.
-The Illinois state law criminalizing the sale or rental of violent video games to minors was struck down based on a similar lack of evidence.

Personal Notes
Of course my main objection to the statute is the restriction on the game industry’s freedom of expression. No matter how violent a game is, it will never lack artistic value. Even if a game has no political, scientific, literary, or educational material, the decision to omit such elements is necessarily an artistic choice. Because a game can never lack artistic value for adults, I fail to see how it can lack artistic value for minors. Even the most gratuitously violent games involve visual design, musical composition, animation, etc. It would be very interesting to see a court address the question of how artistic value can be different for an 18-year-old than for a 16-year-old, but I would more than likely still stand by my convictions.
Massachusetts House Bill 1423 was argued before the legislature earlier this year, and looks almost exactly like California’s law except for some language relating to sexual content that the drafters inserted in a sly attempt to have video games regulated under obscenity laws. So far there is no word on whether it will pass. I have a feeling that it will (this is Massachusetts after all), but I’m also optimistic that those who have the game industry’s best interests at heart and the resources to intercede will do so. As a Boston resident and lifelong gamer, I look forward to keeping you all posted on any developments.

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