Society essay relate to video game

The Last Week of the Term: In Plain English SCOTUSblog: Supreme Court of the United States Blog Lisa McElroy June 28, 2011 By a vote of seven to two, the Court struck down a California law banning the sale or rental of violent video games to minors, saying that such laws violate the First Amendment. Because violent games like Grand Theft Auto and Mortal Kombat sell well, and because several other states have similar laws on the books, video-game companies breathed a sigh of relief. The law, which video-game makers challenged even before it could go into effect, applied to video games that contain the "killing, maiming, dismembering, or sexually assaulting an image of a human being.” Violations of the law would have been punishable by a fine of up to one thousand dollars. In defending the law, California pointed to studies showing that exposure to violent video games can cause children to become more aggressive over time. So, given the evidence that violent games may make kids more aggressive, why did the Court conclude that the games are protected under the First Amendment? Well, because video games are "speech," just like books, plays, and movies. As Justice Scalia explained in his opinion for the Court, although Mortal Kombat may not be as worthwhile as Dante's Divine Comedy, it still is entitled to protection under the First Amendment. And because this country does not have a history of treating speech aimed at children differently, the Court did not want to create a new kind of speech that is not protected by the First Amendment the way that obscenity, for example, is not. Even though some people (including some of the Justices) find the video games offensive, the Framers included the First Amendment in the Constitution to protect unpopular speech. Parents who are concerned about their children playing violent games, the Court explained, could simply supervise their activities. One last important detail: because violent video games are protected by the First Amendment, the Court used its toughest test ("strict scrutiny") to evaluate whether the California law was constitutional. To pass that test, California would have had to demonstrate a very strong state interest in protecting minors; it failed to meet that standard, the Court held, because there were other, easier ways to shield children from violence; scientific research had not adequately shown that the games actually hurt children; and California has not restricted other violent media, such as Saturday morning cartoons.

Justices Reject Ban on Violent Video Games for Children New York Times Adam Liptak June 27, 2011 WASHINGTON — The Supreme Court on Monday struck down on First Amendment grounds a California law that banned the sale of violent video games to children. The 7-to-2 decision was the latest in a series of rulings protecting free speech, joining ones on funeral protests, videos showing cruelty to animals and political speech by corporations….Justice Antonin Scalia, writing for five justices in the majority in the video games decision, Brown v. Entertainment Merchants Association, No. 08-1448, said video games were subject to full First Amendment protection. “Like the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world),” Justice Scalia wrote. “That suffices to confer First Amendment protection.” Depictions of violence, Justice Scalia added, have never been subject to government regulation. “Grimm’s Fairy Tales, for example, are grim indeed,” he wrote, recounting the gory plots of “Snow White,” “Cinderella” and “Hansel and Gretel.” High school reading lists and Saturday morning cartoons, too, he said, are riddled with violence. The California law would have imposed $1,000 fines on stores that sold violent video games to anyone under 18. It defined violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that was “patently offensive,” appealed to minors’ “deviant or morbid interests” and lacked “serious literary, artistic, political or scientific value.” The definitions tracked language from decisions upholding laws regulating sexual content. In 1968, in Ginsberg v. New York, the court allowed limits on the distribution to minors of sexual materials like what it called “girlie magazines” that fell well short of obscenity, which is unprotected by the First Amendment. Justice Scalia rejected the suggestion that depictions of violence are subject to regulation as obscenity. “Because speech about violence is not obscene,” he wrote, “it is of no consequence that California’s statute mimics the New York statute regulating obscenity-for-minors that we upheld in” the Ginsberg decision. The video game industry, with annual domestic sales of more than $10 billion, welcomed Monday’s ruling.

“Everybody wins on this decision,” John Riccitiello, chief executive of Electronic Arts, one of the largest public video game companies, said in a statement. “The court has affirmed the constitutional rights of game developers, adults keep the right to decide what’s appropriate in their houses, and store owners can sell games without fear of criminal prosecution.” Leland Yee, a California state senator who wrote the law, said in a statement that “the Supreme Court once again put the interests of corporate America before the interests of our children,” adding: “It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.” The industry had viewed the court’s decision to hear the case as worrisome, given that the lower courts had been in agreement that laws regulating violent expression were unconstitutional. The justices had, moreover, agreed to hear the case just after issuing their 8-to-1 decision last year in United States v. Stevens, striking down a federal law making it a crime to buy and sell depictions of animal cruelty like dog fighting videos. That also suggested that at least some of the justices had viewed California’s law as problematic. But on Monday, the majority said the Stevens decision required the court to strike down the California law. Only a few kinds of speech, like incitement, obscenity and fighting words, are beyond the protection of the First Amendment, Justice Scalia said, adding that the court would not lightly create new excluded categories. Stevens did not involve speech directed to minors, but the majority said the California law’s goal of protecting children from seeing violence did not alter the constitutional analysis. “No doubt a state possesses legitimate power to protect children from harm,” Justice Scalia wrote, “but that does not include a free-floating power to restrict the ideas to which children may be exposed.” Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the majority opinion in the case. Justice Samuel A. Alito Jr., in a concurrence joined by Chief Justice John G. Roberts Jr., voted with the majority but did not adopt its reasoning. Justice Alito said the California law was too vague. A more carefully worded law, he wrote, might survive constitutional scrutiny. Justice Alito said the majority opinion was too quick to dismiss differences between current video games and other media. “The objective of one game is to rape a mother and her daughters,” he wrote. In another, “players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.”

Soon, he added, children may play three-dimensional high-definition games wearing equipment that will allow them to “actually feel the splatting blood from the blown-off head” of a victim. Justice Scalia acknowledged that Justice Alito had identified some disturbing images. “But disgust,” Justice Scalia wrote, “is not a valid basis for restricting expression.” Justices Clarence Thomas and Stephen G. Breyer filed separate dissents. Justice Thomas said the drafters of the First Amendment did not understand it to protect minors’ free speech rights. “ ‘The freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians,” Justice Thomas wrote. Justice Scalia, who shares with Justice Thomas a commitment to interpreting the Constitution in accord with its original meaning, parted ways with his usual ally on this point. “He cites no case, state or federal, supporting this view, and to our knowledge there is none,” Justice Scalia wrote of Justice Thomas. Justice Breyer also dissented, saying the statute survived First Amendment scrutiny. He relied on studies that he said showed violent video games were positively associated with aggressive behavior. “Unlike the majority,” Justice Breyer wrote, “I would find sufficient grounds in these studies and expert opinions for this court to defer to an elected legislature’s conclusion that the video games in question are particularly likely to harm children.”

Why Two Supreme Court Justices Played a Violent Video Game to Help Decide a Major Case Washington Post Fred Barbash September 18, 2015 It’s hard to picture Supreme Court Justice Elena Kagan, a former solicitor general of the United States as well as a former dean of Harvard Law School, hunched over at a video game console, controller clenched in her hands, playing a violent video game. It is harder still to imagine her opponent, Justice Stephen Breyer, sitting beside her engaged in the virtual combat, all under the august roof of the United States Supreme Court. But it happened. The year was 2011. She would have been about 51; he 73. Since the face-off took place in Breyer’s office at the high court, we have to assume they were not wearing their robes — though that would have been a sight. They were, however, playing in the line of duty. They were struggling to decide a major constitutional question: Whether a California law banning the sale or rental of violent video games to minors violated the First Amendment. As Kagan recently told the story at Harvard Law School, neither had made up their minds. It was a “really hard case. A super hard case,” she said. In her interview September 8 with current Harvard Law Dean Martha Minow, Kagan did not name the title of the game they were playing, except to say that it was “the violent video game that was most involved in the case.” According to the briefs in Brown, Governor of California, et al. v. Entertainment Merchants Association et al., that would have been the game called “Postal 2,” known to the high court as “Postal II” from its description in California’s brief, which was quivering with outrage as it described: …. Torturing images of young girls, setting them on fire, and bashing their brains out with a shovel, for no reason other than to accumulate more points in the game. In one scene in Postal II, the player (who sees through the eyes of the shooter) looks through a scope on an assault rifle and sees a very realistic image of a person’s face. The player then shoots the victim in the kneecap. As the player watches the victim attempt to crawl away, moaning in pain, the player pours gasoline on the victim and lights him on fire. As the burning victim continues to crawl, the player urinates on the victim, and says “That’s the ticket.” After noting that it “smells like chicken,” the player again looks at the victim through the scope on the gun, and again sees a realistic human face, on fire, crawling toward him. The player then shoots the victim in the face, which turns into charred remnants of a human image. In another scene, the player hits a woman in the face with a shovel, causing blood to gush from her face. As she cries out and kneels down, the player hits her twice more with the shovel, this time decapitating her. The player then proceeds to hit the headless corpse several more times, each time propelling the headless corpse through the air while it continues to bleed. As a footnote, by the way, and in fairness, the state’s gory view of the game differs rather dramatically from that of its creators at a company called “Running with Scissors.” Vince Desi, head of the company, said in an interview with The Post that “while much of the content was extreme, it was how we presented the content,” that mattered, and that was sort of humorous,

“over the top,” he said, “like the Three Stooges.” The game “has been the scapegoat game for the industry generally,” he said, and it was being used as an example by the state. In any case, as Kagan tells, the case “was about violent video games. And there was a kind of vague definition in the statute provided about which violent video games would be regulated … The truth of the matter is that I don’t know a lot about video games. I don’t know about violent video games.” But she wanted to find out. As she explained in the Harvard interview, she went into her law clerks’ office the morning of oral argument in the case and asked, “‘is there a kind of violent video game that everybody will know?'” They suggested “Mortal Kombat.” And, indeed, during the oral argument, she asked the lawyer for California: “So how do we separate violent games that are covered from violent games that are just as violent that are not covered?” and “Do you think Mortal Kombat is prohibited by this statute?” “I don’t know what she’s talking about,” quipped Justice Antonin Scalia. In the video, however, she does not say “Mortal Kombat” was the game she and Breyer wound up playing but rather the game that “was most involved in the case.” And, as it happens, Desi said he had sent the high court nine copies of “Postal 2” as a kind of hail Mary pass. He said he had no idea whether they ever received it. “A person like myself doesn’t reach a justice. We created a package, a fan package, and sent nine copies. If they’re going to judge the case,” he thought, “they should see the game for themselves because 90 percent of what was written about it was inaccurate.” To this day, he told The Post, he has no idea whether the justices got the game. And while it does seem like that was the game Kagan and Breyer must have been playing, she did not explain at Harvard where she obtained it. Breyer “had his clerk set it up in his office and I went over to his office. And there we were, killing everybody left and right.” What she remembers is that Justice Breyer “thought it was really horrible, really disgusting and repellent. And I was like, ‘next round, next round.'” As she described the encounter, she paused for a second. “I don’t know if I should say this,” she told the Harvard Law School students, but their sharply different reactions to the game were “probably reflective of the fact that we did come out on different sides of this case,” though she quickly added, “I like to think that there are better reasons than that.” The decision, announced June 27, 2011, was 7-2 to strike down the California law. Justice Antonin Scalia wrote the majority opinion, saying that it did not survive the strict scrutiny required by the First Amendment. If its purpose was to protect children from “portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto,” a reference to the

fact that under the law, an adult relative could go out and purchase an otherwise banned video for a child. “And as a means of assisting concerned parents, it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.” Kagan joined the opinion along with Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor. (Chief Justice John Roberts and Justice Samuel Alito concurred in the ultimate outcome striking down the law but not in the reasoning in Scalia’s opinion.) Justice Clarence Thomas filed a dissent disagreeing with Scalia for the majority. And Breyer wrote his own dissenting opinion, citing, among other things, numerous studies suggesting that violent video games may be harmful to children. “Unlike the majority, I would find sufficient grounds in these studies and expert opinions for this Court to defer to an elected legislature’s conclusion that the video games in question are particularly likely to harm children …. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments. In my view, the First Amendment does not disable government from helping parents make such a choice here—a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children. For these reasons, I respectfully dissent.”

Violent Video Games and The US Supreme Court: The Legacy of Brown v EMA (2011) Huffington Post Christopher J. Ferguson June 13, 2016 Our lives are littered with milestones that, looking back, remind us of how much time has passed and how quickly we are slipping toward the grave! Many of these are personal...marriage (my wife and I are celebrating 14 years this June), birth of a child, graduation, death of a loved one, etc. But working in the field of video game effects there is a very different milestone: the Brown v EMA (2011) Supreme Court decision. Five years ago this month, the US Supreme Court decided a case examining whether the sale of violent video games to minors could be regulated. The California law attempting to criminalize the sale of violent games to minors was authored by state senator Leland Yee and, in a twist of wonderful irony, signed into law by then-governor Arnold Schwarzenegger. The very same Schwarzenegger who made his fortune on bloody action films loved by teens, and returned to making them after his tenure as governor. The interesting thing was that, despite a history of celebrating free speech, US law hadn’t entirely clarified whether the government could regulate violent content in speech. This led to kind of a weak spot in which moral entrepreneurs could attempt to push for regulatory/censorship legislation in the name of “protecting the children.” Which is what was largely responsible for dragging various social scientists into this debate. Then, as now, the scientific case for a link between violent games and “harm” to minors was a weak one, as consistently recognized by the lower courts. But that didn’t stop some scholars from making sensationalistic claims, including the American Psychological Association, which behaves more like a professional guild selling a product (psychology is wonderful!) than an objective scientific organization (which it is not...it is a professional guild, one that I’m a member of for the record.) The majority decision in Brown v EMA upheld the opinions of the lower courts. Video games enjoy 1st Amendment protections just like any art. Minors also enjoy 1st Amendment protections that are not easily cast aside. And the Supreme Court correctly reaffirmed that the scientific evidence for “harm” just wasn’t there with the classic line “These studies have been rejected by every court to consider them, and with good reason...” Looking back now, Brown v EMA was one of the truly momentous crossroads for this field, perhaps the defining turning point that it needed. What did it accomplish? First, of course, Brown v EMA was crucial in the protection of free speech. The impact of Brown v EMA became clear in the aftermath of the horrible Sandy Hook shooting in 2013. The hyperbole on video games that followed that shooting by 20-year-old Adam Lanza was a textbook case of a moral panic in progress. Ultimately, an 11-month investigation would reveal that Lanza was more a fan of Dance Dance Revolution than he was of violent games. In the

interim, Brown v EMA stopped dead several senseless efforts at video game regulation/censorship that followed in the wake of that shooting. Second, the case woke up a lot of people, scholars, politicians and the general public to the fact that video game science was not as clear as some (such as the American Psychological Association) had tried to advertise it as being. In the case, groups of scholars wrote amicus briefs both in support of and against the California legislation (this would turn nasty when several scholars supporting California wrote a paper claiming they had more expertise than their opponents and, as such, should be believed more. This bit of nonsense was ultimately debunked by several other scholars not involved in either amicus brief.) Since the Brown v EMA decision, it has become clear that there are serious methodological problems in the field, as well as problems of publication bias and, ironically, a certain degree of aggressiveness by some scholars in promoting a rigid and moralistic view of video game effects (for example, one group of scholars smeared anyone who disagrees with them by comparing them to holocaust deniers). Other research has found that, far from being supported by a majority, there is considerable disagreement both in the general public and among scholars about whether violent games are a problem for society. Much of this disagreement, predictably, falls along age and generational lines (i.e. old people don’t trust video games). Even among scholars and clinicians. Brown v EMA also has a weird corollary in that it exposes the observation that, oftentimes, those who promote themselves as moral crusaders often prove to be astoundingly amoral individuals. Schwarzenegger would ultimately prove to have some bizarre family problems kept quiet for years. But more spectacularly, Leland Yee, the author of California anti-game legislation, despite being concerned about virtual guns, would end up pleading guilty to corruption issues that involved, among other things, the attempted illegal sale of real guns including rocket launchers. You can’t make stuff like this up. These folks would join other anti-game crusaders such as Eliot Spitzer and Rod Blagojevich among those with spectacular crashes due to their own moral failings. Someone might reasonably ask “Why not let the government regulate/censor violent games even if the evidence is shaky? What’s the harm?” The harm is two-fold. First, most censorship efforts begin with some form of prima facie argument for protecting society in some form. Often censorship advocates start by identifying a “vulnerable” group, in this case youth (although there’s no evidence that youth are especially vulnerable to this type of media), but in the past women and minorities have also been portrayed as “vulnerable” or impressionable to media influences. But once government begins to control speech, the bureaucracy is unlikely to stop. Second, there’s the issue that opening the door to video games being regulated/censored will inevitably spread to other media. One of the leading anti-game scholars has published other work suggesting that reading passages from the Bible describing violence increases aggressive behavior in much the same manner this scholar claims violent games do. So should we have warning labels on religious texts such as the Bible or Ramayana? Do we restrict the sale of these

“violent” texts from minors? Does this eventually lend support to fringe calls to censor sacred texts? The Supreme Court has said that restriction of speech, even that accessible to minors, is inherently dangerous to democracy unless there is evidence that such speech presents a clear, present danger to the health of society. It is now clear that even ultra-violent games, whether we like them or not, present no such danger. The Supreme Court made the right call in Brown v EMA and, in one small way, helped to protect one pillar of American democracy.