By Rui Dai and Mary Morshed
For those of you who are Californian residents, you may have heard about a California law from 2005 that bans the sale of certain “violent” video games to minors. Similar to the ACLU v. Mukasey case, that law was ruled unconstitutional and revoked. The final ruling came out in June 2011, and can be found here.
What’s that California law about?
Taken from the SC proceeding:
The Act prohibits the sale or rental of “violent video games” to minors, and requires their packaging to be labeled “18.” The Act covers games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”
How was it overruled?
It did not pass the strict scrutiny test, in that it was not “justified by a compelling government interest and was narrowly drawn to serve that interest.” For example, based on psychological studies, there is no direct causal relationship between exposure to violent video games and aggressive acts from minors and, therefore; the state did not identify a “problem” in need of solving. Moreover, in the video game industry, there is already a voluntary rating system in place to inform customers about the content in the games.
In addition, the Act was considered underinclusive as it “is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it’s OK”. Another consideration was that other violent media was not included, such as: cartoons, books and movies. California provided “no persuasive reason” as to why video games are disfavored.
At the same time, the Act was also overinclusive because “[n]ot all of the children who are
forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games”.
How is that similar to the ACLU v. Mukasey case?
Similarities in the two cases include: both cases violated the First Amendment’s freedom of speech tenant, both regulations attempted to control content accessed by children without involving parental control or consent, and both cases were deemed to be underinclusive and overinclusive.
Did architecture play a role?
Tying this with Berman and Weitzner’s journal article, does the distribution of video games have decentralized open access and user control over content, so that little or no government regulation is needed?
We argue that the existing rating system for video games is a means to give user control over content – the consumer can identify which games are suitable and which are not. Also, more recently, we have seen an increasing number of games that are available online, some of which hosted in social network platforms (e.g. FarmVille). This open access architecture allows consumers, or in the case of minors, their parents, to screen out inappropriate content from their end, therefore minimizing the need for government regulation.
How is government regulating content? Why should or shouldn’t they?
In both cases, the government was trying to regulate content accessible to children by implementing laws that placed limits on freedom of speech and were not scoped sufficiently to survive the strict scrutiny analysis; ie. serving a compelling governmental interest, being narrowly tailored to achieve that interest, and being the least restrictive means of achieving that interest.
Government should not be regulating violent video games sales or rentals to minors because the First Amendment has very narrow limits on speech restrictions and violent video games are not considered unprotected speech. The courts have seen numerous attempts to categorize violence as obscenity and have historically ruled against it. “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik, supra, at 213–214.