Brown v. Entertainment Merchants Association

I have to say that I am still a little stunned at harsh commentary regarding the decision made by the Supreme Court this week in the Brown v. Entertainment Merchants Association case. 

Facts in a nutshell: (2006) California passed a law that attempted to regulate the sale of violent video games to minors. Gaming industry sued under the 1^st and 14^th Amendments. Ninth Circuit found in favor of gaming industry. Schwarzenegger filed a writ of certiorari. Bing, bang BOOM, the Supreme Court surprises everyone by hearing the case.

Outcome: Supremes upheld the opinion of the Ninth Circuit, citing violations of the 1^st and 14^th Amendments, under the rationale that:

A.    Violent video games are not obscene

B.    California could not show a compelling interest in regulating the sale of “violent” games to minors. (1. The bill was too broad in language and 2. Parents should maintain all that decision-making power)

C.    The Miller test, or LAPS Test, do not apply

A: Obscene.

I don’t need to define “obscene” here. The first quote that comes to mind is the very famous quote by former Justice Stewart (Warren Court), “I’ll know it when I see it,” which was used in reference to the threshold for pornography. The Supreme Court has heard case after case related to the sale of materials that are  perceived to be obscene and has, for the most part, stayed true to what they believed the Framers intended when the 1^st and 14^th A’s were written. Our freedom of speech and due process under the law are principles that can not be easily cast aside just because some members of society are offended. Or, moreover, because state governments want to “help” parents make appropriate decisions for their children.

BUT, Liz, you say:

“If we apply the Stewart Standard, video games that depict rape, robbery, and murder are obscene! Anyone who says differently is lying to themselves and to their audience in the interest of seeming enlightened…or whatever.”

 I, too, find it interesting that Court is contending that our evolving standards of decency do not apply here. Note: the bill was not forbidding the sale of violent games. It was just regulating it.

However, and more important than our opinions and shifting slopes of “evolving standards”:

Obscenity Standards have applied to sexually explicit materials in the past and the Roberts Court contended that they did not apply to violence or games. Fair point. Court precedent wins.

B: Compelling Interest

Thanks, California! First, you want to punt the Pledge of Allegiance from our schools because of “God,” your “feelings,” something, something, youcantmakeagoodargumentforit. HOWEVER, you are totally in favor of LEGISLATION, rather than YOU, which regulates what your minor children can or can not purchase? Make up your minds!

Anyway, that was a little off topic. California could not show a compelling interest because there is no hard science to back up claims that violent media produces violent minors. Look to Columbine and any other national tragedy all you want, folks. The science isn’t there! Those violent incidences resulted in knee-jerk legislation by law makers who were desperate to appease scared, heartbroken, and/or weak-minded voters. However, the bottom line is that either you want the State to tell you what is good for you, or you don’t. You can’t play both sides of that fence where there is no apparent, tangible compelling interest.

C: Miller and LAPS

The LAPS test came from the Miller case (which ruled on the distribution of obscene materials) and consisted of the following thresholds:

• Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
• Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
• Whether the work, taken as a whole, lacks serious Literary, Artistic, Political or Scientific value.

What I found most interesting about this was that, in his dissent, Breyer wrote, “But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13­ year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?”

Touché, Sir. Except... 

That’s just not enough to mow over the 1^st and 14^th. (Also, as I mentioned earlier, the principles of Miller and Ginsberg were directly related to the sale of pornographic materials.)

(Side note: If you read Ginsberg v. New York, you will be stunned that the opinion of the Warren court in that case wasn’t used for this one as well. Trust me, I agree with you, and so did Breyer in his dissent. The only thing I can figure is that the Roberts Court really believed that video games and pornography are different).

The gaming industry used ingenious Amicus briefs to make comparisons between presumably violent cartoons of the past (Mighty Mouse and Road Runner) and the level of violence in the public. The bottom line was that these violent games were not found to have a negative affect on the Youth of America. Sure, there is a difference between Mighty Mouse and Grand Theft Auto. HOWEVER, the State of California failed to illustrate it effectively.

Justice Scalia wrote the opinion of the Court and noted:

 "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). That suffices to confer First Amendment protection."

Scalia later wrote that “the principles of free speech can not be varied.” Whether or not we can all agree on the idea that violent video games are foul, disgusting, counter-productive to our goals as parents/teachers, we must remain focused on the principles upon which our great nation was founded. Our 1^st and 14^th rights are of paramount importance to our advancement as the world’s greatest nation. So, sorry if everyone disagrees with Brown. But seriously, California really botched this one in a big way…not the Supreme Court.