As Eugene noted a while back here on the VC, he helped author (and I co-signed) an amicus brief in the case of Schwarzenegger v. Entertainment Merchants Ass’n, to be heard by the Supreme Court this Term (oral argument set for Nov. 2), urging the Court to affirm the Ninth Circuit’s holding that the California statute (prohibiting the sale of “violent video game[s]” that “appeal to the deviant or morbid interest of a minor”) is unconstitutional under the First Amendment. Modesty may have prevented Eugene from more vigorously extolling the quality of the brief, but since I had little to do with authorship, I can do so. It’s a very well-constructed argument, and worth reading if you’re interested in the First Amendment and the current state of the doctrine.
The doctrinal problem, for opponents of the law (like us), is that the Court some time ago, in Ginsberg v. New York, upheld a NY statute banning sale of “depictions of nudity, sexual conduct, and sadomasochistic abuse” that “appeals to the prurient interest of minors,” in a manner “patently offensive to the prevailing standards in the adult community,”; the State, therefore, has a very plausible argument, which it is advancing, that this statute, which simply applies the Ginsberg formula to violent video games, is constitutional.
The solution, which is very nicely carried off, is to emphasize that while one can perhaps speak credibly about the existence of a rough social consensus about what constitutes an offensive depiction of sexual conduct — at least, within communities, and at the core, if not always at the margins, — there’s no corresponding consensus about “violent video games”; these are, after all, cartoon characters we’re talking about, and when they blow each others’ heads off and perform other unspeakable acts on screen, there are many, many people who regard that as just part of a game without the slightest reference to anything in the real world. (Although the brief doesn’t quite come out and say this, it makes a passing reference to the piquancy of having Mr. Schwarzenegger on the opposite side on this issue; there may well be people out there who feel that the events depicted in some of the Governor’s films — the Terminator series, for instance — are unspeakably cruel and vicious, as indeed they would appear if we believed, for even a split second, that they were depicting actual events (as opposed to computer-generated play events); but there is, and probably can never be, a real community consensus on the matter. It’s a different sort of line-drawing exercise than one faces in the context of sexually-suggestive material, because it is not a line that shifts in small increments — either you think it’s “just a game” (and therefore can tolerate depictions of pretty much anything) or you don’t (in which case the chopping off of heads and disembowelings are all far over the line).
It’s a good argument to deal with an unfortunate precedent. A lot of us can make the argument that Ginsberg was wrongly decided – but it’s much harder to take it as governing law (as one must, in a real case as opposed to the classroom) and argue out from under it, but this is a nice example of the genre.