California vs. the Entertainment Merchants Association and Entertainment Software Association. This case concerns the law, passed in 2005, that got the ball rolling that stopped last week in Washington DC, at the steps of the Supreme Court. Boiled down, the law institutes a $1000.00 penalty per infraction for the sale of violent video games to minors. What constituted a “violent video game” was to be determined by the State using a variation of the Miller Test, slanted towards violence instead of titties. Currently games are rated by the ESRB (Entertainment Software Ratings Board) as anywhere from “Early Childhood” to “Adults Only”. These ratings are suggestions only and are not legally enforceable.
At first blush, this doesn’t seem like such a big deal. Since parents effectively own their children until 18 years of age, it makes sense that they should have the ability to censor that child’s experience of the world in any way that aligns with their own narrow, self-interested point of view. And if you’re gonna make it illegal to sell crap to kids, there has to be a penalty, right? Right.
But that’s not the problem here.
The problem is with the yardstick. I’ll give you an example. Let’s say I were asking you to approve content for your four year old. Would it be okay if I showed her a stabbing? How about someone getting blown up? Run down by a car? It sounds horrible, but if you add falling off a cliff and struck on the head by a plummeting anvil (ACME brand, of course) it starts to make a bit more sense. Utilizing this test doesn’t just cover your Grand Theft Autos and your Postal IIs, even Super Mario Bros. was deemed violent enough to keep out of the hands of the kiddies.
The law (and the test) makes no distinction between cartoonish violence and realistic violence, because if it did the whole thing would immediately fall apart. Video games, no matter how realistic, are all depicting fake violence. And our tolerance for fake violence is so much greater than it is for real violence, you might begin to suspect that they’re not even the same thing.
Human children have always been raised on images of violence. Antonin Scalia (of all people) asked how this law might eventually affect Grimm’s Fairie Tales, a classic set of horrifying and deeply violent tales that pretty much any kid in the literate world knows by heart in one form or another. I can’t think of a single Disney movie that wouldn’t fall into this category.
The State of California maintains that video games create their own special category, owing to the increased involvement of the user. (Compared to books or video entertainment.) To be fair, there are studies that support this. To be subversive, many of those studies have been discredited by more legitimate statisticians, and there are an even greater number of studies that show no causal link between violent video games and violent gamers. (There has been a proven inclination for violent people to be attracted to violent games, but duh.) Overall, while the sales of video games to minors has risen dramatically in the past decade, violent offenses among the same groups has fallen to an all time low.
Thus far the Governator and his posse of censors have been defeated in court twice, as has every other state that has tried this. California is the first to appeal even once, much less all the way to the Supreme Court. Watchers of the Supremes say that while it is not necessarily an open and shut case, it would be both unusual and out of character for the court to rule against the First Amendment, protecting freedom of speech and beating up fake hookers. The court did indicate that they might be more willing to look at a narrower law to “protect” the kiddies, possibly indicating that they are less willing to let this one fly.
One way or another, a decision is expected in June.