Monday will be a day that could radically change the status of video games in the United States. We’re expecting the Supreme Court of the United States to finally issue a ruling, based on arguments they (and we) heard back in November, about whether the state of California can make it a crime to sell extremely violent video games to children.
The case is now called Brown vs. EMA, (formerly, Schwarzenegger vs. EMA) and involves California’s attempt to enforce a law written by State Senator Leland Yee, a Democrat representing San Francisco, in 2005 that would criminalise the sale of hyper-violent games to kids (not all M-rated games, per se, but only certain types, as defined in the law.) The law would require new labelling on games sold in California and carry a $US1000 fine to those found in violation of the law.
If the Court rules for California, it will be overturning a half decade’s worth of decisions in lower courts that said that California’s law violated the First Amendment protections of the freedom of speech.
If the Court rules against California, it could still direct the state on how to write a law that would criminalise the sale of games to kids without violating the Constitution. But a complete ruling against the state would be the biggest win yet for the gaming industry’s ongoing battles against mostly Democratic governors and legislators who have argued that violent video games are harmful to kids in ways that violent movies and music are not.
A win for California would separate video games from music, movies, books and all other forms of entertainment in the United States. While music, movies or books that are considered sexually obscene are illegal for everyone in the US, only certain types of non-obscene sexual content can be made illegal for minors on a state-by-state basis (states can and do make it a crime to sell dirty magazines to kids, for example). No other medium is subject to a legal check on extremely violent content in the US, so the criminalisation of selling hyper-violent video games to kids would be a first for any form of entertainment in America. A movie theatre might be breaking its own rules if it sells a ticket for an R-rated movie to a minor, but it’s not breaking the law. In theory, selling a copy of Postal 2 to a kid would become a crime.
The video game industry, led by the ESA, or Entertainment Software Association – a lobbying group funded by big game publishers that also runs E3 each year – has argued that games should be treated like other forms of entertainment. California has argued that games, because they are interactive, have a unique ability to agitate a child’s mind and potentially spark aggressive behaviour in the child.
California contends that, should it win, children will be safer. The gaming industry’s chief advocates contend that speech will be chilled and that retailers and game creators will be compelled to react by selling and producing less edgy content.
We’re expecting a decision shortly after 10am EDT on Monday. Expect full coverage of the decision here on Kotaku.