Brown v EMA: The Case for Video Games as Free Speech

Published: June 28, 2016 1:00 PM /


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Even today, arguments abound on the nature of video games as art, expression, and on the impact their content has on society and people. Since the earliest advent of video games, people have argued they may negatively impact young people and the world as a whole. Of those arguments the most common was and continues to be that violence in games makes children, and even adults, more aggressive and criminal. Studies are done regularly attempting to demonstrate this, and even the American Psychological Association continues to hold that this is the case. However, many experts in the field claim that the research proving it is flawed and that there is just as much if not more potential for games to have a positive influence. These arguments found their ultimate battle ground in the Supreme Court of the United States in 2011, the case of Brown v. Entertainment Merchants Association (or Brown v EMA for short). This trial is well-known by many politically savvy gamers as the case that finally set the precedent that video games are protected speech, in the same way other forms of art and entertainment media are. But what else did it accomplish for video games and free speech as a whole?

A History of Accusations

Long before Brown v EMA, there were numerous attempts by organizations and states to restrict the sale of violent video games, both generally and specifically to minors. In the mid-2000s, there was a surge of legislation and cries for legal enforcement, following a string of particularly violent mass shootings, such as Columbine. Pro-family groups and individuals, as well as politicians, figures in the media, and parts of the academic community, argued that perpetrators of mass shootings may have been inspired or influenced by violent images in video games. 

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Findings from the FTC show that the voluntary ESRB prevented a vast majority of Mature sales to minors.

The Entertainment Software Association, or ESA, was among several organizations representing the video game industry who fought against such attempts at legislation. Among these is a 2005 Michigan bill to make the sale of Mature and Adult Only games to minors illegal, a 2006 Illinois bill of the same nature, and a 2008 Minnesota law that would have fined minors themselves for attempting to purchase Mature games. Minnesota appealed to the Eight Circuit Court of Appeals, but the court reaffirmed that the law was unconstitutional. There was also a federal bill presented in 2005, titled the Family Entertainment Protection Act, which was presented by now Presidential candidate Hillary Clinton. That legislation died in committee. 

The onslaught of legislation is what resulted in the creation of the Entertainment Software Rating Board, or ESRB. Gamers are very familiar with the simple ratings that can be found on virtually every game they purchase. The ESRB is a voluntary body that developers and distributors can join of their own volition. The vast majority of the industry in the United States uses the ESRB, with most distributors enforcing their own rules about selling games to minors. An investigation by the Federal Trade Commission into the enforcement of ratings and selling of mature content, found that video game distributors were the most efficient at enforcing their voluntary ratings, beating out every other entertainment industry, with an 87% success rate in 2010. 

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Pro-industry groups have consistently argued that video games are correlated with a decrease in violent crime, likely because it acts as a distraction for youth who may otherwise engage in more reckless or violent activities. Critics of organizations like the American Psychological Association's stance on video game violence say that the culture of academia is skewed against research that demonstrates no correlation. Two researchers offered the opinion piece, A Hornet’s Nest Over Violent Video Games, alleging that the academic community treated those who didn't believe in the correlation between video games and violence akin to climate change deniers, and that distortion of findings were rampant. An article in the British Journal of Psychiatry says that "moral panic" following intense tragedies may have significant biases on video game violence research. 

California's Attempt

senator leland yee
Former California Senator Leland Yee.

In 2005, Senator Leland Yee introduced AB 1179 to the California Assembly. The bill would have made sale of games the state determines as violent to minors illegal, punishable by a fine of up to $1000 and would have required clear labeling on the front of game boxes, marking mature games for players 18 and over. The language of the bill defined violent content based on five descriptors of violence: "cruel," "depraved," "heinous," "serious physical abuse," and "torture." Oddly enough, AB 1179 was originally introduced not having anything to do with video games but was actually a bill allowing foster care workers to administer life saving injections for diabetes and other medical issues. However, after it had already passed the Assembly, and had been amended twice in the Senate, Lee completely gutted the original purpose of the bill, replacing it with the video game restriction law. The law determined the limits of free speech using an alternative version of the Miller test, a Supreme Court standard used to identify obscenity of a sexual nature, which is not protected speech. AB 1179 used the following criteria to define a game that would be inappropriate for sale to younger audiences: 

(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.
This was Yee's second attempt at a law restricting the sale of violent games. His history in child psychiatry gave him a vested interest in the law, as he believed that violent video games had a detrimental effect on the minds of children. AB 1793 originally had requirements similar to those found in 1179; however, the language was diluted to only require ESRB ratings in the state of California, but with no enforcement nor ulterior definitions. 
I'm not a player. But I have seen individuals who play these games. I have seen individuals using a baseball bat and bludgeoning a hooker to death, or taking a gun and shooting a cop. Those are the direct result of someone pushing a button and making a conscious decision. I can see that that kind of connection between your action and the consequent behavior is dangerous. — Senator Leland Yee on AB 1793
AB 1179 was signed by Governor Schwarzenegger in October 2005 and was set to take effect in January 2006. Before the bill was even signed, the Entertainment Merchants Association and the Entertainment Software Association, had prepared an appeal.

The Industry's Challenge

Near immediately after the bill was signed, ESA and EMA filed a joint suit against the state of California, similar to past lawsuits against other states. They alleged that AB 1179 was unconstitutional and that the definitions of violence therein were vague and overly broad. In December 2005, presiding judge Robert Whyte ordered an injunction, effectively stopping the bill from taking effect while the case was heard. In August 2007, he decided in favor of the industry groups, stating that the state of California had not demonstrated a true causality between video games and violence, and thus the bill violated the First Amendment. 
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Former California Governor Arnold Schwarzenegger.
Governor Arnold Schwarzenegger filed with the Ninth Circuit Court of Appeals in September 2007, saying he would "vigorously defend the law." The appeal sparked a letter writing campaign by the Video Game Voter Network, a grassroots organization founded by the Entertainment Software Association, to try and halt the appeal. The Entertainment Merchants Association released a statement chiding the Governor and the state, saying that they expected their decision to be upheld:
Rather than wasting more public funds in trying to defend a patently unconstitutional law, we believe the state should invest in helping parents make informed decisions about the video games brought into their homes. — Entertainment Merchants Association on the California Ninth Circuit Appeal
The court reaffirmed Whyte's decision, further elaborating that the state hadn't demonstrated a compelling interest and that its standards for determining inappropriate levels of violence could not apply. The bill used a variation of the Miller test, referencing the "variable obscenity" standard enforced by Ginsberg v. New York. The "variable obscenity" standard is a measure of free speech decrees that certain types of speech and material that is appropriate in one situation may not be appropriate in all, specifically regarding pornographic materials and the age of the viewer. However, the court determined that for defining violence in media, the strict scrutiny standard should be used, which is a narrower determination of how a type of expression can be limited. For strict scrutiny standards, a body must prove they have an invested interest in the matter and they must use the least restrictive means possible to enforce. 
Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment ... — VSDA & ESA v. Schwarzenegger
The court also overturned the provision requiring games to be labeled, stating that the government cannot compel speech, and that requiring an explicit label in such a way would be requiring developers and distributors to promote the government's subjective and controversial view.

Brown v EMA

While past states accepted the ruling of the district courts, Governor Schwarzenegger and Attorney General (and later Governor) Jerry Brown, appealed the ruling to the Supreme Court of the United States in May 2009. Surprisingly, the Supreme Court agreed to hear the case, even though they had denied such cases in the past. The case immediately followed another case regarding media restrictions, on the depiction of animal cruelty (specifically "crush" videos), which the Supreme Court overturned in a vote of 8-1. The step to the Supreme Court led to multiple amicus briefs being filed for both sides. Free speech advocacy groups like the ACLU, Progress and Freedom Foundation, National Coalition Against Censorship, and National Youth Rights Association filed a brief with the EMA and ESA. Additionally the Media Coalition, a joined effort of other entertainment industries, also filed a brief siding with the video game industry, in addition to the Comic Book Legal Defense Fund, the Motion Picture Association of America, and a variety of others. From within the industry itself, Activision Blizzard filed a brief in support, along with Microsoft. And finally nine states and Puerto Rico filed their own brief, along with several academic experts

On the side of the state of California, Eagle Forum (a socially conservative and "anti-feminist" pro-family group), Common Sense Media, and the California Psychological Association. The final brief from the CPA was led by Senator Leland Yee, who authored the piece. 

Arguments for the case were held in November 2010. The final decision was made on June 27, 2011, where by a majority vote of 7-2, the court upheld the decisions of the lower court that the law was unconstitutional. The full transcript is available, detailing the brutal questioning from the Justices, which questioned whether the law could eventually be applied even to media as innocent as fairy tales, and asking if it could mean the state could "outlaw Bugs Bunny," pointing to the slapstick violence found in cartoons. The Justices also pointed out several other issues, including the vagueness in determining age appropriateness (as what may be appropriate for a teenager could still not be for a young child), that the means of judging it may cause undue stress for developers as they would not have a strict and specific standard by which to make their games, and that compared to sexual material, violence is far more subjective to judge in many instances. 

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Former Justice Antonin Scalia.

The majority decision was written by Justice Scalia and supported by Ginsburg, Sotomayor, Kagan, and Kennedy. A Concurrence was written by Alito and Roberts. The majority's primary argument was that video games, like other forms of art, entertainment, and storytelling, is of sufficient importance to be protected free speech and expression. The decision, however, could also be applied to any attempt to restrict depictions of violence in media, as the Justices state that to define violent content would require "narrow specificity," a difficult task for restrictions to include. It also reaffirmed the idea that the state cannot control or censor the speech or content a child sees, unless they can prove that it would cause harm to the child. The decision and transcript also state explicitly that the research connecting violence and video games is flawed and inconclusive.

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.

Justices Thomas and Breyer wrote independent dissents against the majority's decision. Thomas' dissent argued that speech directed at or by minors should not be considered protected speech, and that it wasn't the intention of the United States Founders, going as far as to cite the opinions held by Thomas Jefferson on child rearing. He states that while the Court has defending the right of children to speak, they have never defended the right of children to be spoken to. Breyer argued that it didn't make sense to restrict a teenagers access to pornography while allowing him to access depictions of violence. 

The court did, however, state that as technology surrounding video games evolved, the Supreme Court may find it necessary to readdress the issue. 

The Aftermath

The outcome of the Supreme Court case was met with praise not only from the video game industry, but from adjacent entertainment industries like the movie industry, who believed the protection would also help protect them from similar legislation. They also supported the video game industry in solidarity, having faced similar initiatives in the past. Pro-family groups were not so pleased; the President of the Parents Television Council argued the decision "replaces the authority of parents with the economic interests of the video game industry." The author, Senator Leland Yee, said that as a result the video game industry would make billions while children's health suffered. He said he intended to reintroduce a new bill within the demands of the Supreme Court. Ironically, Senator Leland Yee was indicted in 2014 for trafficking weapons, and convicted in February 2016. 

justice elena kagan
Justice Elena Kagan.

Following the case, the state of California agreed to reimburse the Entertainment Software Association's legal fees in part. The Association donated some portion of those fees to programs in California cities Oakland and Sacramento. The case in total cost the state over $2 million. 

A few years after the case, Justice Kagan, who voted with the majority, said she sometimes had second thoughts about the vote. Kagan considered voting along side the Concurring group, who contended that while the current bill was overreaching, the concept in itself was not. Had she done so, it would've likely altered the outcome. However, Kagan said that despite her doubts, she couldn't find a way to make the law work under the First Amendment, regardless of her feelings on the subject. 

Despite the decision by the Supreme Court, the argument still persists that there is a connection between violence and video games, often expanded to insinuate specific violence based on gender and race, and with a heavier relation to issues of gun control. This has even spread to proclaimed pro-gaming writers and websites. Especially in the wake of tragedies like Orlando, as well as those before, media and politicians will continue to point to video games. In the future the Supreme Court may have to weigh in on other issues related to content in video games, as France considers restrictions on games depicting "sexism," the United Nations decides to weigh in, and the burgeoning market of virtual reality takes hold. 

What does this case mean to you? What do you think the future has in store for the video game industry? 

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