Case questions free speech limits

By Ryan Hoover

Arnold Schwarzenegger, former movie star and current governor of California, has not largely influenced the media in nearly a decade. However, with a Supreme Court ruling projected for early next year, he could change the entertainment industry more than he ever did as an actor.

The case, Schwarzenegger v. Entertainment Merchants Association, is the result of a law passed in 2005 by the California legislature and signed by the governor to restrict the sale of video games containing graphic violence to minors. The law also requires game manufacturers to place an “18” label on all video games the state found to be “offensive to the community” and pertains to video game content lacking “serious literary, artistic, political or scientific value.”

After the law was passed, the EMA filed a lawsuit claiming the new legislation was an attempt to regulate content and infringed on First Amendment rights of free expression.

The law was deemed unconstitutional and overturned by the local courts and Court of Appeals because the state did not provide adequate proof that video-game violence led to increasing violent behavior in minors, nor did it differentiate video games from other forms of media, such as movies and television shows, which are not restricted for minors.

Schwarzenegger defended the act, saying it is an attempt to protect minors from being exposed to violent video games without parental consent. Zackery Morazzini, a California deputy attorney general, stated Nov. 4 in the first Supreme Court hearing that previous cases have allowed restricting content to minors in an effort to allow parents to claim “authority in their household to direct the upbringing and development of the children.”

During his presentation, Morazzini was asked by the Supreme Court to define “deviant, violent video games,” a phrase he used multiple times in defense of the California law.

“Deviant would be departing from established norms,” Morazzini said.

After a brief debate of what “established norms” are, some of the justices were concerned about the vague language, as well as the fact that there are no previous court cases to guide the Supreme Court’s decision. Justice Antonin Scalia emphasized the importance of a potential paramount decision, such as the one presented in the case.

“I am concerned with the vagueness, but I am (also) concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech,” Scalia said during the hearing. “You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment.”

Many justices were concerned about the process of determining the “deviant” games as they were compared with community standards. Scalia mocked the defense, encouraging a department called the “California office of censorship.”

After the defense’s arguments ceased, the Supreme Court heard Paul Smith, the EMA’s attorney.

Smith said the current restrictions enforced through the Entertainment Service Rating Board, as well as the inability of minors to purchase the $50–60 video games, made the California law unnecessary.

The justices questioned Smith to determine the motives of the extreme nature and grotesque images presented in games.

“Portal II,” a game that allows players to set innocent people on fire and urinate on them, was used as an example. In review of the case, the Supreme Court previewed the game and Justice Stephen Breyer said it allowed “gratuitous torture.”

Smith appealed to common sense, saying only 20 percent of games are purchased without parental consent and parents have time to monitor their children’s play at home. Justice Breyer disagreed.

Bryer said there is no common sense in the law because it tells the parent of a child, “The 13-year-old cannot go in and buy a picture of a naked woman, but the 13-year-old child can go in and buy one of these video games as I have described? What sense is there to that?”

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The Cardinal & Cream is a student publication of Union University in Jackson, Tennessee. Our staff ranges from freshmen to seniors and includes a variety of majors — including journalism, public relations, advertising, marketing, digital media studies, graphic design and art majors.