Professor Joshua A.T. Fairfield: Schwarzenegger v. Entertainment Merchants Association

In the upcoming Spring edition of the Law Alumni Magazine, Professor Joshua Fairfield, Associate Professor of Law and Director of the Frances Lewis Law Center, commented on the recently argued Supreme Court case, Schwarzenegger v. Entertainment Merchants Association. Professor Robin Wilson also commented on the case. Fairfield’s views, in their entirety, are below:

We should not be surprised by California legislators’ claims that videogames should be regulated. Each form of new media has been subject to overblown attempts to legislate content, based on some version of the argument that this medium is different; that this medium uniquely affects children. Plays, novels, comic books, movies, and television have all been accused of corrupting the youth. We should resist the cliché this time around. Law, science, and the realities of the gaming industry all point away from giving in to the urge to legislate morality.

The Law

The U.S. Supreme Court in Ginsberg established a special exception to the First Amendment regarding children and sexually obscene materials. But every lower court so far has rejected such a special exception when it comes to violence and children. The real issue here is that videogames are not exceptional media—they are a medium like any other. If the state was free to regulate violent content in movies under the obscenity standard it wants to apply video games, it would render obscene movies like Gladiator, Saving Private Ryan and The Last Temptation of Christ, to say nothing of Governor Schwarzenegger’s own movies.

Rather than expand obscenity, the Court might hold that the California law satisfies strict scrutiny. In Schwarzenegger, the trial court found that protecting children from violence is a compelling state interest. And there is a possibility that the Justices could find that the California law is the least restrictive means towards achieving that end if they decide internet content filters are ineffective. However, if restricting children’s access to violence meets strict scrutiny, much of the framework of free speech online will come undone. There are many things online that children should not see. California should not be permitted to set functionally worldwide laws to regulate all of these forms of speech.

The Science

California expressly conceded at oral argument that it does not believe videogames cause criminal behavior. Rather, California cited a series of studies that have been used by legislatures (and uniformly rejected by courts) to show that videogames may be correlated with increased aggression in children. More notably, the studies do not account for the question of whether violent videogames make children aggressive or whether aggressive children simply enjoy violent videogames.

Moreover, the science that the State of California used to show that videogames cause increased aggression in minors also shows that minors suffer the same effects when told Bible stories, or when they are merely shown a picture of a gun. Every court to have examined video game regulation to date has gotten this one right. As one court noted, “[t]he Court finds that the Legislature’s belief that video games cause violence, particularly violence against law enforcement officers, is not based on reasonable inferences drawn from substantial evidence.”

The Industry

The Court just barely touched on two huge issues that go to the realities of the videogame industry — first, how content for games is produced, and second, how games are now distributed. The oral argument reads as though we were discussing the game industry of 20 years ago — one in which videogame makers are like movie directors and control the content of their creations, and one in which games are sold over the counter rather than by digital distribution. Both ideas are now very much out of date.

Videogame makers are increasingly providing the ability for users to generate their own content. When this content is sexual, government organizations still count it as content of the game. This approach puts game manufacturers on the hook for “content” they had nothing, or next to nothing, to do with. And if you think user-generated sexual content is bad, think about violence. The first thing that users do when they get a game’s toolset is blow stuff up, kill people, or some combination of the two. How in the world can a video game manufacturer protect itself against the California law if it can’t control the content of its own game?

The Court’s understanding of distribution is also outdated. The sales clerk is gone. Many video games are now delivered directly to the user’s computer by download. How is a video game download service going to know whether or not they are selling to a minor in California? Ban all sales to California IP addresses? Proxies are easy and effective. Rely on the use of a credit card as a proxy for age? The statute doesn’t provide for an exception on those grounds.

California is attempting to regulate an industry that is rapidly changing in ways that make the statute at issue highly questionable. Neither the law nor the science is on their side. The Supreme Court is unlikely to give California what it asked for.

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