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California Violent Video Game Law Held Unconstitutional,

by the Ninth Circuit in Video Software Dealers Ass'n v. Schwarzenegger. The statute barred selling or renting "violent video games" to minors, and defined violent video games this way:

(d)(1) "Violent video game" means a video game 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 the game in a manner that does either of the following:
(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.
(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.
On appeal, California conceded that the subsection (B) definition is unconstitutional, and focused on (A), which essentially borrows the "obscene as to minors" test -- which was upheld by the Supreme Court, in a slightly different form, for sexually themed expression -- and tries to adapt it to violent video games. No dice, the court says (in my view, quite correctly, and consistently with generally similar decisions from the Second, Sixth, Seventh, and Eighth Circuits):
We decline the State's invitation to apply the variable obscenity standard from Ginsberg to the Act because we do not read Ginsberg as reaching beyond the context of restrictions on sexually-explicit materials or as creating an entirely new category of expression -- speech as to minors -- excepted from First Amendment protections. As the Act is a content based regulation, it is subject to strict scrutiny and is presumptively invalid. Under strict scrutiny, the State has not produced substantial evidence that supports the Legislature's conclusion that violent video games cause psychological or neurological harm to minors. Even if it did, the Act is not narrowly tailored to prevent that harm and there remain less restrictive means of forwarding the State's purported interests, such as the improved ESRB rating system, enhanced educational campaigns, and parental controls.
The court also struck down the requirement that "violent video games" be labeled with a prominent "18" label.

BGates:
Remember, kids, stay away from "killing, maiming, dismembering, or sexually assaulting an image of a human being", or you might become governor someday.

PS Steroids kill, unless they help you become incredibly rich.
2.20.2009 3:46pm
Thoughtful (mail):
Surely I'm not the only person to find ironic humor in the fact the one opposed to violent video games was Schwarzenegger.
2.20.2009 3:49pm
DiversityHire:
Professor Volokh, please forgive me for asking this on a thread only tangentially related to the posting.

Much of the interface between software and the law is discussed in terms of how the law applies to software, or how technical changes change the nature of existing law or legal practice. At least that is what I find as a non-lawyer, non-legal-scholar.

I wonder to what extent the lessons of software and software engineering affect the creation, interpretation, and enforcement of law? I see both software engineering and government as examples of systems engineering at different levels of abstraction. Are there things that we learn by building semi-formally specified systems in software that can be applied to building semi-formally-specified social systems in law?
2.20.2009 4:06pm
Sk (mail):
Is that the Schwarzenegger who starred in Predator, The Terminator series, Commando, and True Lies, none of which had much sex, but nevertheless ALL OF WHICH WERE LEGALLY REQUIRED TO BE PROMINENTLY R RATED (and thus, which are ostensibly banned to viewing by children)?

Try harder on your 'hypocricy' tag, folks.

Sk

Incidently, why is it ok to rate movies as unsuitable for children (and to ban children from seeing them) but not video games? (I ask this as a violent-Doom and Halo-type- video game fan).
2.20.2009 4:14pm
Anon21:
Sk:
Incidently, why is it ok to rate movies as unsuitable for children (and to ban children from seeing them) but not video games? (I ask this as a violent-Doom and Halo-type- video game fan).

To my knowledge, enforcement of the MPAA rating system is entirely voluntary and in private hands; if there are laws mandating such a practice, they could probably be successfully challenged on First Amendment grounds in a similar manner to the law at issue in this case. Game retailers are free to restrict the sale of "M" rated games to customers who they can confirm are 17 or older, but government cannot mandate that.
2.20.2009 4:21pm
CDU (mail) (www):

Is that the Schwarzenegger who starred in Predator, The Terminator series, Commando, and True Lies, none of which had much sex, but nevertheless ALL OF WHICH WERE LEGALLY REQUIRED TO BE PROMINENTLY R RATED (and thus, which are ostensibly banned to viewing by children)?


You don't have your facts straight here. There is no legal requirement for movies to be rated, and there are no legal restrictions prohibiting minors from seeing NC-17 rated films. The rating system and the practice of theaters not allowing children into NC-17 films are both entirely voluntary decisions by the film industry.

Your reference to the 'R' rating is even more misplaced, since children are allowed into R rated movies, so long as they are accompanied by a parent or guardian.


Incidently, why is it ok to rate movies as unsuitable for children (and to ban children from seeing them) but not video games? (I ask this as a violent-Doom and Halo-type- video game fan).

Video games are rated, just like movies are. Look at the box of any video game produced in the last decade and you'll see the rating. As with movies, the current rating system is entirely voluntary. The problem here is the government mandating that games be rated and that the ratings be legally enforced. This would clearly be unconstitutional when applied to movies (see Joseph Burstyn, Inc v. Wilson). This decision in the current California case, and others before it, merely apply that same standard to video games.
2.20.2009 4:23pm
Sk (mail):
I have to admit I'm astounded that the MPAA rating scheme is voluntary, and even more that it has maintained itself over the last 40 years or so.

My follow up is then a sociological one. How and why has the MPAA rating scheme maintained itself? Particularly if it is not legal to require it, what does the movie industry gain by banning potential customers (obviously, the video game industry doesn't want to do the same thing). My uneducated guess is that they are afraid that without a voluntary set of rules, legislation would follow. Yet we are saying that such legislation would be unconstitutional. What gives?

Sk
2.20.2009 4:28pm
A. Zarkov (mail):
I wonder how the Ninth Circuit would feel about a highly realistic video game called Black Robes, the Lost and the Damned. The player gets to take on the role of a criminal who seeks revenge against a court that sentenced him to prison. This game would simulate violent and even sexual acts against courtroom staff besides the judge. Use your imagination here. I'm nearly an absolutist on the 1A, but everything has a limit.
2.20.2009 4:34pm
luagha:
You neglect some of the backends of the MPAA ratings -

You can release a film as 'unrated' but all major filmhouse companies will not publically show your film.

If you are a major filmhouse company and show an 'unrated' film the MPAA will try to cut you out of distribution so you don't get any films to show.
2.20.2009 4:34pm
Clayton E. Cramer (mail) (www):

My uneducated guess is that they are afraid that without a voluntary set of rules, legislation would follow.
When previous self-regulation schemes were created (the Breen Code, the Hayes Code, the MPAA rating system), we weren't quite so far down the ACLU's ahistoric definition of freedom of speech. Back about 1920, the Supreme Court ruled in a censorship case involving the Ohio Industrial Welfare Commission that the making of movies wasn't art, it was about making money, and upheld state authority to censor. As late as the 1950s, the New York State Board of Education had authority to license showing of films in theaters, and rejected a film for blasphemy.

So why today does the movie industry continue with the MPAA rating system? The movie industry wants to be seen as responsible to parents. And yes, they would certainly win suits about government regulation, but it would cost a bit of money to do so, and create bad press. But also, the MPAA rating system is a bit of a joke. Roger Ebert pointed out a couple of years ago that because the second Hannibal Lector movie wasn't rated NC-17 for violence and cruelty, no movie ever could be.
2.20.2009 4:38pm
CDU (mail) (www):
Particularly if it is not legal to require it, what does the movie industry gain by banning potential customers (obviously, the video game industry doesn't want to do the same thing).


Ahh, but does the MPAA rating system actually exclude many potential customers? There are hardly any NC-17 films released into mainstream theaters anyway, so there's very few viewers lost there. For R rated films kids can either persuade (or badger) their parents into taking them, or employ some stratagem to get into the movie by themselves (have an older friend buy tickets, use a fake ID, buy tickets to another movie and switch theaters, etc.) The MPAA rating system is not there to keep people out, it's to solve a public relations problem for violent or sexually explicit films.
2.20.2009 4:41pm
Clayton E. Cramer (mail) (www):

The player gets to take on the role of a criminal who seeks revenge against a court that sentenced him to prison. This game would simulate violent and even sexual acts against courtroom staff besides the judge. Use your imagination here.
I'll wait for the sequel: Black Robes: Judge Reinhardt, Castrato, In The Castro District. That would be sure to open up some opportunities for backpedaling on the First Amendment!
2.20.2009 4:41pm
Sean O'Hara (mail) (www):

When previous self-regulation schemes were created (the Breen Code, the Hayes Code, the MPAA rating system), we weren't quite so far down the ACLU's ahistoric definition of freedom of speech.


Just a nit, but the Breen and Hays Codes are the same things -- the standards were created by Hays, but enforced by Breen for most of their lifetimes.
2.20.2009 4:42pm
George Weiss (mail) (www):
A. Zarkov

you win the thread
2.20.2009 4:43pm
PatHMV (mail) (www):
The movie theaters voluntarily enforce the ratings system because it's in their financial best interests to do so. Yes, it may be partly in order to preclude legislation, but there is undoubtedly a financial benefit as well.

Say you're a responsible parent. There's 2 movie theaters in town. One enforces the ratings, the other is known not to. Your 14 year old and his friends want to be dropped off at the theater to go see a movie. Being a responsible parent, you don't want him to see "American Pie 3" and its (very funny) bachelor party scene. Do you drop him off at the theater which promises to not let him in to see that movie, or do you drop him off at the theater where he's likely to forsake his promise to see the Fantastic Four and saunter in to the raunchy movie?

Most kids under the age of 17 are spending their parents' money, and that money tends to come with strings attached. The movie theater has an economic incentive to keep the parents happy, not just the kids.

Plus, as CDU notes, it doesn't actually keep many people out of the movies. It much more regularly affects the choice of movie rather than the decision to go see a movie at all.
2.20.2009 4:47pm
Clayton E. Cramer (mail) (www):

Just a nit, but the Breen and Hays Codes are the same things -- the standards were created by Hays, but enforced by Breen for most of their lifetimes.
Hmmm. The textbook we used for history cinema indicated that they were two different codes, with the Hays Code coming a few years later.
2.20.2009 4:52pm
GayRepublican:
I think it should be pointed out that the video game industry ALREADY has a ratings system. Almost any video game you find at a store like GameStop or Wal-Mart will have a rating by the ESRB. A video game that contains content similar to an R-rated movie will have a very clear M rating on the box. Many stores won't sell these games to minors.
2.20.2009 4:52pm
PatHMV (mail) (www):
OT, but once when I worked in our governor's office, my law clerk had to handle a phone call from a very irate woman who wanted the governor to DO SOMETHING immediately. It seems that the local Blockbuster had rented an R-rated movie to her 15-year-old son, without her permission!

I was very impressed that my law clerk managed to handle the call without laughing, even once. I did feel kind of sorry for the kid.
2.20.2009 4:58pm
Clayton E. Cramer (mail) (www):

I think it should be pointed out that the video game industry ALREADY has a ratings system.
I have a vague recollection that this law was something the Democrats in the California legislature came up with to appear family friendly, so it may have been for show, not function. Does anyone have some history on this one?
2.20.2009 5:00pm
GayRepublican:
For those who aren't familiar with the ratings system, look here: Pic of ratings

These ratings are put on the FRONT of all video game boxes. They're not that tiny either. In addition, the back of the box will usually have a more descriptive section, also by the ESRB, that explains why the game has received that particular rating (IOW, its offensive content). If parents are unwilling to spend the few seconds it takes to look at these plainly visible ratings and descriptions, then that's their problem. Keep the government out of it.
2.20.2009 5:03pm
PatHMV (mail) (www):
Zarkov, I think such a game would be VERY popular among lawyers... and my bet would be that some bar association disciplinary counsel would start an investigation into any lawyer who participated in its development or marketing, for casting aspersions on the bench or some such foolishness.
2.20.2009 5:20pm
Patent Lawyer:
Zarkov-

Not sure if you were trying to be ironic while not disclosing your knowledge, but I note that Grand Theft Auto IV (which has a new episodic downloadable storyline available called, "The Lost and Damned"), has at least one mission where you shoot up a law office because the lawyer screwed you over.
2.20.2009 5:26pm
Oren:
Every penny spent on defending this nonsense should come of the legislator's salaries.
2.20.2009 5:37pm
A. Zarkov (mail):
"... but I note that Grand Theft Auto IV (which has a new episodic downloadable storyline available called, "The Lost and Damned"), has at least one mission where you shoot up a law office because the lawyer screwed you over."

I guess my subconscious is working overtime.
2.20.2009 5:43pm
A. Zarkov (mail):
"I think such a game would be VERY popular among lawyers..."

I think so too. Especially now that so many don't have enough work. I was going to present some scenarios for the game, but I thought my post might get deleted if it were too graphic.
2.20.2009 5:47pm
Elliot123 (mail):
Ae these the same people who pushed for the V chip?
2.20.2009 5:48pm
BZ (mail):
Sigh. Way back when Joe Lieberman was but a junior Senator, he was one of the first to make a major effort to stop violent video games. The impetus was a game called "Night Trap," which involved the then-new CD format offering video clips of zombie-like creatures capturing humans with neck nooses. The author was a former Washington Post reporter. It was the reaction to that series of hearings (including the massive fight between the then-industry behemoths: Nintendo and Sega) which spawned the video game rating system. Disclosure: I was involved in the industry effort, both on the self-regulatory side and the establishment of the resulting association. The model used was the MPAA's, Jack Valenti came out to give advice, and the very-competent counsel they eventually hired had worked for the movie ratings board.

The Senate staff readily admitted that they could not constitutionally regulate the content of violent videogames. Pity that California couldn't get the same advice.
2.20.2009 5:49pm
FantasiaWHT:

How and why has the MPAA rating scheme maintained itself? Particularly if it is not legal to require it, what does the movie industry gain by banning potential customers (obviously, the video game industry doesn't want to do the same thing)


Very easy answer here, and the same goes for video games. By blocking a small portion of their potential customers, they are ensuring easy access to a greatly larger number of potential customers. Some games and movies skip the ratings system. By and large, if they do so: (a) theaters won't show them, (b) many retailers won't carry or rent them, (c) mainstream media reviewers/previewers won't give them any coverage.

The question I've always had for comparing the two ratings systems is why the video games are so much stricter when it comes to language and sexuality (but not really violence). A PG-13 movie can show breasts and buttocks with some serious cursing (see As Good as It Gets) and lots of sexual language (see same), but a "Teen" game can't get even close to that. Any brief nudity puts a game perilously close to an "AO" ("Adults Only") rating. Remember Hot Coffee, the hidden content in Grand Theft Auto San Andreas, that earned the game an AO rating once discovered? It was fully-clothed people (with poorly polished graphics even) dry humping.
2.20.2009 5:53pm
Just Dropping By (mail):
How and why has the MPAA rating scheme maintained itself?


I would recommend that you watch the documentary This Film Is Not Yet Rated for the answer to that question.
2.20.2009 5:57pm
Fidelity (mail) (www):
Damn, Just Dropping By, you beat me to it. I actually just emailed SK, and then saw your comment. Cheers!

Torrent for This Film Is Not Yet Rated
2.20.2009 6:11pm
Dave N (mail):
I wonder how the Ninth Circuit would feel about a highly realistic video game called Black Robes, the Lost and the Damned. The player gets to take on the role of a criminal who seeks revenge against a court that sentenced him to prison. This game would simulate violent and even sexual acts against courtroom staff besides the judge.
We're talking the Ninth Circuit. Their role is to release the offender from prison in the first place.

Now, change it to "The player gets to take on the role of a victim or victim's family member who seeks revenge against a court that released the violent criminal who harmed him from prison" and the Ninth Circuit might start getting worried.
2.20.2009 6:25pm
CDR D (mail):
Speaking for myself, I wouldn't be interested in playing any kind of video game aimed at violence directed at the esteemed jurists serving us on our courts.

OTOH, scatological ones...
2.20.2009 6:36pm
illspirit (www):
I have a vague recollection that this law was something the Democrats in the California legislature came up with to appear family friendly, so it may have been for show, not function. Does anyone have some history on this one?


Mr. Cramer, It's not just Cali, Democrats across the country have been trying this for years. I'm rather certain that in some cases their endgame (pardon the pun) is to censor games which show firearms in a positive light. E.G., America's Army, hunting simulations, the NRA Gun Club game, etc.. For now they're just using titles like Grand Theft Auto as a smoke screen.

See also: http://www.vpc.org/studies/vidintr.htm
2.20.2009 7:13pm
Clayton E. Cramer (mail) (www):

Zarkov, I think such a game would be VERY popular among lawyers... and my bet would be that some bar association disciplinary counsel would start an investigation into any lawyer who participated in its development or marketing, for casting aspersions on the bench or some such foolishness.
Sad to say, some years back, there was a very funny beer commercial involving a lawyer rodeo. (Roping them, riding them, that sort of thing.) And the response of the California Bar Association was to put out a press release suggesting that there might be some legally actionable about the commercial.

Like one of the bars here says, "99% of lawyers give the rest a bad name."
2.20.2009 7:55pm
J. Aldridge:
We decline the State's invitation to apply the variable obscenity standard from Ginsberg to the Act because we do not read Ginsberg as reaching beyond the context of restrictions on sexually-explicit materials or as creating an entirely new category of expression -- speech as to minors -- excepted from First Amendment protections.

Translated: How dare the state legislature go around the courts in deciding what is decent and what isn't! That is the job of the supreme court!
2.20.2009 8:39pm
Fub:
Clayton E. Cramer wrote at 2.20.2009 7:55pm:
Sad to say, some years back, there was a very funny beer commercial involving a lawyer rodeo. (Roping them, riding them, that sort of thing.) And the response of the California Bar Association was to put out a press release suggesting that there might be some legally actionable about the commercial.

Like one of the bars here says, "99% of lawyers give the rest a bad name."
Minor nit. There is no "California Bar Association" that I know of. Membership in The State Bar of California is mandatory to practice law in CA (since it's a government mandated bar association). Membership is not voluntary. So, any statement by the SBC is a statement by the State of California's government.

See the SBC FAQ:
1. What is The State Bar of California?

Answer: The State Bar of California is the regulatory agency for the state's lawyers, charged with admitting and disciplining attorneys. For more information, read "The State Bar of California: What Does It Do, How Does It Work?"
(PDF)
2.20.2009 9:08pm
Dilan Esper (mail) (www):
The decision is right but as usual, we are treating sex as worse than violence, which is stupid.

As for the mpaa ratings, I always wondered why the refusal to show unrated movies wasn't an antitrust violation.
2.20.2009 10:49pm
Rachel (mail) (www):
Yep,there are too many violet videos these days.There needs to be some restrictions for these kind of video games.
2.20.2009 11:56pm
Roger Schlafly (www):
Minor nit. There is no "California Bar Association" that I know of.
Huhh? There certainly is such an association, and it certainly does have members. If you don't want to be a member, just don't pay the annual fee.
2.21.2009 1:44am
theobromophile (www):
The MPAA rating system is not there to keep people out, it's to solve a public relations problem for violent or sexually explicit films.

True, and is a great example of the efficacy of voluntary private action, no government uber-parent needed. The fact that there is smut, porn, and violence out there doesn't mean that parents are under some obligation to let their children see it, and the only possible barrier to the loss of the little one's innocence is the government.

(On a side note, film ratings are great for adults who want an excuse to see a non-adult movie. "Girls! 'Twilight' is PG and you're only 12! You need an adult with you!")
2.21.2009 4:31am
PhanTom:
A better introduction to the ESRB ratings can be found here: http://www.esrb.org/ratings/ratings_guide.jsp.

Not only do they include a generalized rating (EC, E, E10+, T, M, AO, RP), but they also explain why the rating was given. This is a far cry better than the MPAA ratings, which give little advanced warning as to why an R rating was given.

Of course, all the voluntary rating in the world will do nothing as long as parents ignore the ratings and pay no attention to how their kids kill time.

--PtM
2.21.2009 9:44am
Fub:
Roger Schlafly wrote at 2.21.2009 1:44am:
Huhh? There certainly is such an association, and it certainly does have members. If you don't want to be a member, just don't pay the annual fee.
If you'll tell me where to find the organization named "The California Bar Association", I'll check it out.
2.21.2009 5:48pm
Roger Schlafly (www):
Just type it into Google, and click on "I feel lucky".
2.22.2009 2:08am
Johan (mail):
"as usual, we are treating sex as worse than violence, which is stupid. "

Yeah, I have always found that funny (sad) as well. Appearently it is much worse if kids get to see people making love than killing each other. But even the most prudish parent presumably thinks it would be even worse if their kids killed someone than if they had sex.

You can motivate the differential treatment under certain assumptions, like that watching sexual content will make kids more sexually active but violent content will not affect them but these are rather peculiar. In fact, the opposite theory, that teenagers will be sexually interested regardless of what the culture is, while they have to learn to be violent seems to be more plausible.
2.22.2009 6:34am
Fub:
Roger Schlafly wrote at 2.22.2009 2:08am:
Just type it into Google, and click on "I feel lucky".
Did that, typed in "California Bar Association". Google returns The State Bar of California.

That's precisely the point I made earlier. There is no organization that calls itself The California Bar Association. The organization which every attorney practicing in California state courts (except pro haec vice) must join calls itself The State Bar of California. It is a government mandated regulatory body, not a voluntary membership organization for attorneys.
2.22.2009 12:03pm

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