In this series, our resident legal brain, Nicholas Sylvain (he really is a sitting judge!) examines Schwarzenegger v. Electronic Merchants Association, the upcoming Supreme Court case that will affect video-game legislation in the United States. The decision will determine if California violent video-game law, which fines retailers for selling violent video games to minors, violates the First Amendment. This first of three parts analyzes the State of California’s written arguments already presented to the Supreme Court and forshadows what it will present to the Supreme Court in person early next month. In coming days, we will also examine other sides’ filings and boil them down into “real English” for the rest of us.
As we slowly move along the road towards oral presentation to the Supreme Court on November 2, the petitioners and other interested parties are filing their written legal arguments.
Let’s take a look at those arguments.
Leading off the pack is the State of California, which in the space of 69 pages sought to justify its controversial law.
In 1973, the Supreme Court established in Miller v. California that the First Amendment prohibited restrictions on adult access to sexually explicit materials unless it qualified as obscenity. But to be legally “obscene,” the material has to meet certain criteria, which are determined by a multi-part test:
First, a work may be subject to state regulation when that work, taken as a whole, appeals to the prurient interest in sex.
Next it must portray, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
And then, taken as a whole, it cannot have serious literary, artistic, political, or scientific value.
If it meets all three tests, it’s legally unprotected “obscene material” and not covered by the Constitution’s right to free speech.
However, California’s argument is heavily based on precedent that is as old as I am: Ginsberg v. New York (1968). Though decided five years before Miller, Ginsberg survives because it was directed at restrictions on the sale of sexually explicit materials to minors. Ginsberg, which challenged a New York law that prohibited shopkeepers from selling “girlie mags” to minors, established that there was no infringement on the constitutional freedoms of minors and that the state has historically had the power to control the freedom of children to a greater degree than as to adults.
In other words, Miller established that porn is legal, but Ginsberg says you can’t sell it to kids.
Ginsberg further noted that the state’s right to limit obscene materials to kids was grounded in enforcing parental authority and that the New York law allowed for a further parental role in determining the “prevailing standards.” In other words, the New York law at issue did not bar parents from purchasing sexually explicit materials for their own children. So your dad could buy you your first Playboy, but the shopkeeper couldn’t sell it to you directly.
Ginsberg ultimately recognized the independent interest of the State “’to protect the welfare of children’ and to see that they are ’safeguarded from abuses’ which might prevent their ‘growth into free and independent well-developed, … citizens.’” In real-speak, that means Ginsberg established that it’s the State’s responsibility to keep porn and other obscene materials out of kids’ hands because it might screw them up. Ginsberg concluded that, because it has this responsibility, the State was reasonable in creating a no-porn-sold-to-kids law because, not only does it have the responsibility to protect kids, it has an interest in not having a bunch of damaged, warped adults walking around who were screwed up by seeing obscene materials at a young age.
To be sure, there is no lack of “studies” which purport to demonstrate that obscenity is or is not ‘a basic factor in impairing the ethical and moral development of . . . youth and a clear and present danger to the people of the state.’ But the growing consensus of commentators is that ‘while these studies all agree that a causal link has not been demonstrated, they are equally agreed that a causal link has not been disproved either.’ We do not demand of legislatures ’scientifically certain criteria of legislation.’
These quotes are important, because this is really the crux of California’s legislation holding retailers lawfully responsible for the sale of violent video games to minors, and it’s the basis of the California’s Supreme Court argument. It’s a legal mash-up: Take the obscenity test of Miller, decorate it with the Ginsberg garnish about minors and parental authority, shake well, and serve over the California statute books.
California takes the daylight afforded to it by Ginsberg and runs it as far as it can, or at least until it runs into the essential problem of this case — Schwarzenegger v. EMA is about violence in video games, not . The remainder of their brief is devoted to taking the square peg of violence, jamming it into the round hole of sex, and hoping five justices of the United States Supreme Court buy it.
Next time, in Part 2, we find… George Carlin?