Revenge of the Nanny State

by CyberKnight

Five years ago, “The Governator” Arnold Schwarzenegger signed California bill AB1179 into law, making it a criminal offense to sell a “violent” video game — defined as one that allows a player to kill, maim, or sexually assault a human being — to a minor.  Shortly thereafter, the law — like similar laws in other states — was struck down as being an unconstitutional violation of the First Amendment.  Instead of accepting this oft-repeated decision, California decided to waste more of their nonexistent budget appealing this decision to the Supreme Court.

This should make you Mad as Hell for a number of reasons.  The proven First Amendment is only one of these.  It singles out video games for violence as a medium that needs to be “controlled”.  It attempts to take the decision of parents of how to raise their own kids (no matter how good or bad it is) out of their hands.

Contrary to a very popular belief, there is no law preventing the sale of “mature-rated” (except, maybe, sexually-explicit, a.k.a. “porn”) content to minors.  It’s certainly not true when it comes to books or graphic novels.  It’s not true when it comes to music.  It’s not even true when it comes to movies, no matter what the ticket counter clerk might say — the Motion Picture Association of America ratings are generally followed by theaters, with the understanding that theaters that cooperate may find themselves with easier access to new releases.  Wikipedia source  And, a law criminalizing certain video game sales can have far more disasterous repercussions, such as retailers opting not to carry such games for fear of criminal sanctions when a mistake is made, or even paving the way for a new “sin tax” on this “dangerous” medium.

On November 2nd, the Supreme Court heard opening arguments from both sides in Schwarzenegger v. Entertainment Merchants Association.  A full transcript is available here.

The Supreme Court justices listened to both sides, interrupting and challenging them frequently.  Fortunately, some of the comments made by the justices during the arguments given by Zackery Morazzini (arguing for the law) show some common sense:

Justice Scalia: Some of the Grimm’s fairy tales are quite grim, to tell you the truth.  Are they okay?  Are you going to ban them, too?

Justice Scalia (in response to the argument that video game violence is not an “established norm”, like cartoons or fairy tales): That same argument could have been made when movies first came out.  They could have said, oh, we’ve had violence in Grimm’s fairy tales, but we’ve never had it live on the screen.

Justice Sotomayor (in response to the argument that this new law specifically does not target fairy tales): How is that any different than what we said we don’t do in the First Amendment field in [another court case], where we said we don’t look at a category of speech and decide that some of it has low value?

Justice Scalia (in response to the argument that a jury could judge individual games for whether they are covered by the “too violent” rule): I’m not concerned about the jury judging. I’m concerned about the producer of the games who has to know what he has to do in order to comply with the law.

Mr. Morazzini’s response to this latest is rather telling of the “we don’t care, just do it” attitude of those siding for the nanny state:

Mr. Morazzini: Justice Scalia, I am convinced that the video game industry will know what to do.

He says they rate their games on the basis of violence all the time.  Except that’s the ESRB doing the rating, and developers have already had issues not knowing how a game will be rated.  He then goes on to admit that this new law will affect “some, but not all” games that are already rated ‘M’ — so obviously he does not believe the existing ratings are effective enough.  Yet in the debate, he is unable to positively identify what the covered content would be.  Is it ‘M’ but ok to sell, or not?

Justice Ginsburg: …does California have any kind of an advisory opinion, an office that will view these videos and say, yes, this belongs in this … deviant violence, and this one is just violent but not deviant?

Mr. Morazzini: Not that I’m aware of, Justice Ginsburg.

Justice Scalia: You should consider creating such a one.  You might call it the California office of censorship.


Not that they were necessarily easier to the other side.  Paul Smith, on behalf of the EMA, had to field his own questions.  The majority of them, though, are exemplified by this:

Justice Breyer: …why isn’t it common sense to say a State has the right to say, parent, if you want that for your 13-year-old, you go buy it yourself, which I think is what they are saying.

In other words, can’t the state do something, and why shouldn’t they if they can?

To see how utterly ridiculous this law is, though, consider this interchange:

Justice Sotomayor: Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?

Mr. Morazzini: No, it wouldn’t, Your Honor, because the act is only directed toward the range of options that are able to be inflicted on a human being.

Justice Sotomayor: So if the video producer says this is not a human being, it’s an android computer simulated person, then all they have to do is put a little artificial feature on the creature and they could sell the video game?

Mr. Morazzini: Under the act, yes…


This is a case that gamers (not to mention lovers of the Constitution and the First Amendment) should watch closely.  After all, there’s a saying:  “As California goes, so goes the nation.”  If this law is upheld for California, you can expect other states to pass similar laws “for the children” — the first likely to be Michigan or Illinois, whose laws have already been struck down.  A decision is expected before the Supreme Court goes on recess in June of ’11.

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