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On Tuesday, November 2, while the rest of the country was voting, the Supreme Court of the United States heard oral arguments in Schwarzenegger v. EMA, the landmark case in which the state of California is petitioning for the re-instatement of a California law banning the sale of “deviant or morbid” violent videogames to minors.

The Supreme Court has long held that First Amendment rights provide broad protection against censorship of speech. In ten prior federal court decisions, lower judges have uniformly held that video games are protected as speech, just like books, comic books, movies, and music. However, California is arguing that video games are special for two reasons: First, because the level of violence is “deviant” or “obscene”; and second, because of the “the interactive nature of gaming.” That is, the state can censor violent games, even though it can’t censor violent books or violent movies, because the level of violence is so deviant as to be obscene, and because the consumer of a videogame is actively engaged with the content, rather than merely consuming it.

The case is unquestionably the most important legal challenge to ever face the videogame industry. If California wins the case, similar laws are certain to spring up in other states, and the chilling effect on the development of videogames for adults could be profound. In order to avoid huge liability, major game retailers, such as GameStop and Walmart, would have to restructure their entire business model to ensure minors are not sold games. These businesses may decide that it is more cost effective to not stock or sell these games all together! In addition, businesses with an online distribution model are even less able to ensure the purchaser of the game is not a minor. They might be required to geo-target any state with such a law to forbid any mature games being sold there as the only way to avoid liability under this bill.

How, then, can we expect the Supreme Court to rule? Unfortunately for the videogame industry, it’s an open question. The justices were very split. Justice Antonin Scalia, Justice Sonia Sotomayor, and Justice Elena Kagan seemed inclined to side with the game industry, albeit for different reasons.

Justice Scalia, a Constitutional originalist, was the staunchest supporter of the First Amendment rights of videogame creators and consumers, saying “I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech…. It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create a whole new prohibition… What’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children?” He also did not buy California’s argument that the technology of games made them special, pointing out, “This same argument could have been made when movies first came out. They could have said, ‘Oh we’ve never had violence in Grimm’s fairy tales, but we’ve never had it live on the screen…’ Every time there’s a new technology, you can make that argument.” He then sarcastically suggested “You should consider creating…the California office of censorship. It would judge each of these video games one by one. That would be very nice.”

Justice Kagan was not as vocal about the First Amendment generally, but she clearly did not buy the state’s argument that video games were harmful. “Do you actually have studies that show that video games are more harmful to minors than movies are?” she inquired. More tellingly, she asked the state’s attorney “[Do] you think Mortal Kombat is prohibited by this statute?” When he said yes, her disbelief was palpable: “Mortal Kombat, which is an iconic game, which I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing?”

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Justice Sotomayor’s questions suggested she was also against the California law. She asked, “Could you get rid of rap music? Have you heard some of the lyrics of some of the rap music? Some of the original violent songs that have been sung about killing people? Why isn’t that obscene?” She also displayed more than a passing familiarity with the tropes of video games. “Would a video game that portrayed a Vulcan, as opposed to a human being, being maimed and tortured…be covered by the act? What happens when the character gets maimed, head chopped off, and then immediately after it happens they spring back to life and they continue their battle? Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.”

On the other hand, Justice Breyer made it clear that he sided with California. Never inclined to restrict government power, Breyer bluntly asked the lawyer for the EMA “Why isn’t it common sense to say that if a parent wants his 13-year-old child to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence upon small children and women…. If you want that for your 13-year-old, you go buy it yourself?”

Chief Justice Roberts and Justice Alito, both parents of young children, also seemed to support California’s position. Roberts seemed to be most concerned with protecting children from violence in general. In response to Scalia’s argument that there was no Constitutional tradition of regulating violent speech, Chief Justice Roberts responded, “We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg for mercy, pour gasoline over them, and urinate on them… We protect children from that.”

Alito, meanwhile, focused particularly on the special nature of games. He argued that “We have here a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified. To say…because descriptions in a book of violence were not considered a category of speech that was appropriate for limitations at the time when the First Amendment was violated is entirely artificial.”

With three justices seemingly supporting the law, and three justices apparently wanting to overturn it, which way the court will rule is hard to determine. It will depend on how Justices Ginsburg, Kennedy, and Thomas swing.

Shaking my magic eight-ball, I predict that the Court will overturn this specific California law as being too vague and broad, but will explicitly leave open an opportunity for states to regulate games in other, more narrowly tailored ways. Which means it might be time for the game publishers of America to invest in more lawyers.

Alexander Macris is co-founder and publisher of The Escapist, as well as president and CEO of its parent company, Themis Media. He has also written two tabletop wargames, conceived and edited the book “MMORPGs for Dummies,” and designed the award-winning web game “Heroes Mini.” After hours, he serves as president of Triangle Game Initiative, the Raleigh-Durham area’s game industry association, and runs a weekly tabletop roleplaying game campaign of concentrated awesomeness.

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