[This post was co-authored by FMC Communications Intern Scott Oranburg]
This morning, the U.S. Supreme Court made its decision in the case Brown v. Entertainment Merchants Association, deeming a California law unconstitutional that aimed to prohibit the sale of violent video games to anyone under the age of 18. We at FMC are pleased with this ruling, although you may initially be scratching your head as to why we would care about this issue.
Here’s a link to our amicus curiae brief with the National Association for Media Arts and Culture and Fractured Atlas. (Thanks to Andrew Schwartzman of Media Access Project for his work on this filing.)
Now, as to that question about why we care…
In 2005, the state of California passed a law that prohibited
The constitutionality of the law became an issue because California aimed to limit speech through a broad definition of “violence” — a provision pretty much unprecedented in First Amendment law. While there are many laws on the books limiting “indecent” material due to sexual content, the vagueness of the definition of violence could affect other forms of expression such as film, theater, literature… and music. Without having to take a side on the nature of video games, it’s pretty easy to see that the limitations expressed in the California statute could eventually play out in the music community. We at FMC may not have much of a stance on “Grand Theft Auto” or “Halo,” but we are concerned about, say, Rage Against the Machine or Dead Prez’s ability to freely express themselves. If upheld, the California law could have opened the floodgates to different definitions of violent speech in all 50 states. And if Congress were to step in to “fix” things with a national standard, things could get real weird real fast.
Again, it’s not about whether you like violent video games (or even think they should exist), but rather the wide-open definition of “violence” in art. If a law can be narrowly-tailored to protect minors, then that might be OK — although it would be nice if it rested on more than assumptions of harm. Either way, this one wasnt it. As Justice Antonin Scalia pointed out during the hearing, “Fairy Tales are quite grim… are you trying to ban them too?” His comment shows how broadly this law could be interpreted, and how loose interpretations could lead to banning expression that just barely qualifies as violent. Remember: not all video games are made by giant corporations; many are created by entrepreneurs in home offices across the country. Some of these individuals likely explore the boundaries between video games and other media such as music and film. Multiple $1,000 fines could easily put these creators out of business, and the threat of such fines could have a chilling effect on expression and innovation. Worse, the standard set for violent video games could feasibly be extended to Shakespeare in the Park. Things get even more complicated when you consider that the internet has become a direct-to-consumer outlet for many content creators — how would a law restricting access affect this crucial dynamic?
Today’s ruling should alleviate these concerns. If limitations on expression were to have expanded due to the now-overturned California law, artists of all kinds could have been affected. We are happy to see the essential speech rights protected by the highest court in the land. And if the decision means the possibility of a GWAR MMORPG that’s fine with us, too.