MR. SMITH: We do have a new medium here, Your Honor, but we have a history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling, our children are all going to be turned into criminals. It started with the crime novels of the late 19th century, which produced this raft of legislation which was never enforced. It started with comic books and movies in the 1950s. There were hearings across the street in the 1950s where social scientists came in and intoned to the Senate that half the juvenile delinquency in this country was being caused by reading comic books, and there was enormous pressure on the industry. They self — they self-censored. We had television. We have rock lyrics. We have the Internet.
That seems accurate to me — and is a point Dmitri Williams has made in his scholarship. Of course, the problem with that argument (as Dmitri has also noted) is that video games actually are different. (And comic books were different, and film was different, and the Internet is different.) And when new things are different, they deserve somewhat different laws and they often get them. With regard to video games, their new media issue comes up most clearly when Justice Scalia struggles with the linguistic problems inherent in all mimetic performance.
JUSTICE SCALIA: It’s not speech. You were saying, you just can’t let the kid maim — maim, kill, or set on fire.
MR. SMITH: I’m sorry?
JUSTICE SCALIA: What the law would be directed at is not the plot, not the video game itself, but the child’s act of committing murder, maiming, and so forth.
“The child’s act of committing murder?” Sounds quite horrible, but Mr. Smith refuses to play along — he explains that it’s a depiction of murder, not murder…
MR. SMITH: Well, the events in a video game and the game. I would submit that both are completely protected by the First Amendment. Just as a person -
JUSTICE SCALIA: The child is speaking to the game?
MR. SMITH: No. The child is helping to make the plot, determine what happens in the events that appear on the screen, just as an actor helps to portray what happens in a play. You are acting out certain elements of the play and you are contributing to the events that occur and adding a creative element of your own. That’s what makes them different and in many ways wonderful.
Just right — that is what makes video games different. Yet in terms of video game violence, people disagree about the “wonderful” aspect of that engagement. To First Amendment skeptics in favor of regulation (see, e.g., Prof. Kevin Saunders), these sorts of differences should be legally relevant.
But drawing clear statutory lines around acceptable and unacceptable forms of mimetic action can be extremely tricky — perhaps impossible. See, e.g., these two great questions from Justice Sotomayor:
JUSTICE SOTOMAYOR: Would a video game that Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?
MR. MORAZZINI: No, it wouldn’t, Your Honor, because the act is only directed towards the range of options that are able to be inflicted on a human being.
You see, according to the California statute, Vulcans aren’t people, so violence against Vulcans is not covered by the statute. However…
JUSTICE SOTOMAYOR: So what happens when the character gets maimed, head chopped off and 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.
MR. MORAZZINI: I would think so. The intent of the law is to limit minors’ access to those games.
So again, extreme violence to Vulcans is okay, because they are not human. Yet extreme violence to humans who regenerate magically is within the statute, since they are humans, albeit magically regenerating humans. To the extent Sotomayor was looking to make a point with those two questions, I think she made it.
Personally, while I am admittedly a video game fan (though in theory more than practice), I do find the general level of graphic violence in the media disturbing. Yet I’m highly suspicious of statutes targeting video games, given the historic precursors of this sort of thing.
More importantly, as some of the justices pointed out at the start of the argument, all the empirically-backed arguments used here as a basic for regulating video games seem to work equally well as a basis for regulating other forms of visual media, such as film and television. The media effects of video games are really no different than the effects of other audiovisual media. Given that, if this statute survives strict scrutiny, I don’t see how this sort of anti-violence regulation could possibly (rationally) be limited to video games. So I doubt the Supreme Court will uphold this law. At most, we’ll probably see some interesting language about the Ginsberg standard.
And — you may have seen this coming — there’s a virtual worlds angle to all of this as well. The exchange between Scalia and Smith about virtual and real violence was something that I thought about a lot while writing my book. Virtual environments also place individuals in crafted roles with incentives and choices. So the regulation of virtual environments is faces First Amendment challenges (by the platform developers and owners) on the basis that it is a regulation of speech.
As I explain in the book, though, there are a number of other barriers to effective virtual world regulation (e.g. contract, copyright) that will probably be more significant initially. But the First Amendment problem with prospective virtual world regulation is real and significant. Notably, Blizzard Entertainment, maker of World of Warcraft, was among the amici supporting the EMA.