The Supreme Court’s Upcoming Decision on Videogame Violence and the First Amendment: Does it Even Matter?

This editorial was written by Eric Gerson and is intended as a preview of his upcoming note: More Gore: Video Game Violence and the Technology of the Future, 76 Brook L. Rev. ___ (forthcoming Spring 2011).

On April 26th, 2010, the Supreme Court agreed to rehear Video Software Dealers Association v. Schwarzenegger, a Ninth Circuit decision invalidating a California regulation of video game violence.[1] This marks the first time our nation’s highest court will rule on the level of First Amendment protection afforded to violent content in video games.[2] The decision to rehear this case isn’t terribly surprising. As technology develops, video games are able to achieve higher and higher levels of sophistication, with impressive visual fidelity and increased interactivity. Our modern high-definition consoles and motion-based controllers provide gamers with a level of immersion that has previously never been reached. Utilizing this technology, recent titles like Red Dead Redemption and Mass Effect 2 have portrayed intricate, emotionally moving storylines on par with some of Hollywood’s most classic films.[3] However, this increased level of sophistication comes at a price. It stands to reason that as video games become more realistic and interactive, and the line between “virtual” and “reality” fades, the violent content within such games has the propensity to be much more dangerous for children. As such, these advances in video game technology provide state legislators with more ammunition, making the balance between freedom of expression and the state’s interests in the protection of minors as pertinent as ever.

But will the outcome of this modern case truly factor in these modern considerations? Unfortunately, it seems unlikely that it will. Oral arguments were submitted in front of the Supreme Court on November 2nd, 2010, and a decision most likely won’t be seen until July of 2011.[4] However, the law being addressed was signed by Schwarzenegger on October 7th, 2005—nearly 6 years ago![5] Seeing as how the Xbox 360 didn’t see the light of day until November 22nd of that year—not to mention that the fact that the PlayStation 3 and Nintendo Wii weren’t released until late 2006—there is no way the law’s drafters took into account the elevated levels of immersion provided by modern gaming technology. As such, before litigation even began, the decision was already technologically outdated.

Fast-forward to the oral arguments heard by the Supreme Court this past November. An evaluation of the transcript thereof produces few if any references to games of the current console generation. In fact, the only modern game mentioned during oral arguments was MadWorld, a standard-definition Wii title that utilizedopts for black and white highly-stylized cartoon violence instead of photo-realistic gore.[6] So what, then, are the Justices considering in making their evaluation? The one game referenced more than others is Postal II, a computer-based first-person shooter that was released back in 2003![7] Neither of these titles are a proper representations of what modern gaming technology is capable of portraying. It is clear, then, that however the Supreme Court rules this summer, the decision will not fully account for the increased levels of immersion provided for by modern graphic and controller technology.

Does this mean the Supreme Court’s decision will be incorrect? In truth, probably not. It is highly likely that the Court will shoot down Schwarzenegger’s law just like every circuit court has done to similar state regulations since 2001.[8] To be regulated by states with very lenient judicial review, video game violence must be excluded from First Amendment protection. The most analogous exclusion is the one afforded to obscenity, which can isn’t afforded isn’t protected protection due to its inherent offensiveness to community standards of what is appropriate.[9] Even considering today’s technology, however, it is unlikely that the Court would treat such violent content in video games on the same grounds as obscenity. Video game graphics still haven’t reached the photo-realistic levels necessary for full immersion,[10] and motion controller’s like the Wii Remote, PlayStation Move, and Microsoft Kinect are still imperfect.[11] As such, the modern video game violenceviolence in modern games is still too distinct from reality to be considered offensive in the same sense as obscenity.[12] However, the same may not be true three, five, or ten years from now as we progress into the eighth and ninth video game console generations. Only time will tell what the PlayStation 4, Wii 2, and Xbox 720 will be capable of, but it is apparent that the upcoming Supreme Court verdict will no longer be valid or applicable as technology continues to progress. And once video games take a leap into full immersion and become virtually indistinguishable from real life, a reevaluation of our First Amendment approach will not only be warranted, but will be necessary.
For a more extensive discussion of the developing video game technologies and their potential effect on the First Amendment protection afforded to video game violence, see Eric Gerson, Note, More Gore: Video Game Violence and the Technology of the Future, 76 Brook L. Rev. ___ (forthcoming Spring 2011).

[1] Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950 (9^th Cir. 2009), cert. granted sub nom, Schwarzenegger v. Entertainment Merchants Ass’n, 130 S.Ct. 2398 (argued Nov. 2^nd, 2010)

[2] Jim Reilly, Violent Game Law Goes to Supreme Court, IGN, Nov. 1, 2010, http://xbox360.ign.com/articles/113/1131462p1.html (“[I]n April 2009, the U.S. Supreme Court agreed to review the decision, marking the first time a video game case has gone before the Supreme Court.”).

[3] Erik Brudvig, Red Dead Redemption Review IGN, May 7, 2010, http://ps3.ign.com/articles/109/1090380p1.html; Erik Brudvig, Mass Effect 2 Review, IGN, Jan. 22, 2010, http://xbox360.ign.com/articles/106/1062898p1.html.

[4] Transcript of Oral Argument, Schwarzenegger, 130 S.Ct. 2398 (Nov. 2, 2010) (No. 08-1448).

[5] Schwarzenegger, 556 F.3d at 950.

[6] Transcript, supra note 4, at 57; Matt Casamassina, MadWorld Review, IGN, Mar. 9, 2009, http://wii.ign.com/articles/960/960344p1.html.

[7] Id. at 12, 41, & 57; Ivan Deez, Postal 2 Review, IGN, April 3, 2003, http://pc.ign.com/articles/392/392215p1.html.

[8] See, e.g., Dahlia Lithwick, Simulated Originalism: James Madison, meet Postal 2, Slate, Nov. 2, 2010, http://www.slate.com/id/2273338/pagenum/all/#p2 (“I count only three votes to uphold the California ban . . . . It doesn’t look very good for the California violent video ban[.]”); Chris Morris, Analysis: Inside the U.S. Supreme Court On ‘Schwarzenegger v. EMA’, Gamasutra, Nov. 2, 2010, http://www.gamasutra.com/view/news/31316/Analysis_Inside_The_US_Supreme_Court_On_Schwarzenegger_v_EMA.php.

[9] See generally Miller v. California, 413 U.S. 15 (1973). See also Ginsberg v. United States, 390 U.S. 629 (1968).

[10] Jonathan Richards, Lifelike animation heralds new era for computer games, Times Online, August 18, 2008. http://technology.timesonline.co.uk/tol/news/tech_and_web/article4557935.ece (“For many years now, animators have come up against a barrier known as ‘uncanny valley’, which refers to how, as a computer-generated face approaches human likeness, it begins take on a corpse-like appearance . . . . As a result, computer game animators have purposely simplified their creations so that the players realize immediately that the figures are not real.”).

[11] See, e.g., Scott Lowe, Microsoft Kinect Review, IGN, Nov. 3, 2010, http://gear.ign.com/articles/113/1132213p1.html (noting that the Kinect’s motion ditection comes with a noticeable amount of delay).

[12] See, e.g., American Amusement Machine Association v. Kendrick, 244 F.3d 572 (7^th Cir. 2001); Interactive Digital Software Association v. St. Louis, 329 F.3d 954 (8^th Cir. 2003).