As a criminology student at Rutgers University, one of my assignments was to write an analysis and criticism of a Supreme Court holding within the last few years. We were encouraged to creatively select a holding with the goal in mind of picking it apart, teasing out its implications, and relating it to criminal justice and criminology.

I took the rare opportunity to cross my academic interest in criminology with my personal interest in video games, covering the biggest landmark legal case for video games in history. What follows is my exact paper, word for word.

Overview

On November 2nd, 2010, nine judges and numerous experts, attorneys, and lawyers sat down in Washington, D.C. to decide the fate of a multi-billion dollar industry and the free speech rights of dozens of companies. Originally known as Schwarzenegger v. Entertainment Merchants Association (EMA), the case was to settle a California law that had been passed to restrict the sale of violent video games to minors, fining offending retail outlets and requiring special markings to distinguish those games that were deemed too violent. The law was ultimately struck down by the Supreme Court and news of the case barely crossed the desks of most criminologists, but dismissing violent video games and crime as irrelevant subjects would be a mistake. This case is far mare relevant to criminology than the average scholar would initially suspect.

Background

On May 5th, 1992, a studio called 3D Realms came out with a game that would forever change the way that the public viewed entertainment media. It was called Wolfenstein 3D and it was the first of a genre known as the first-person shooter, or games played as though looking through the character’s eyes while shooting enemies (3D Realms). It was quickly followed by iconic games like Doom, Quake, and countless others, up to and including modern successors like the Half-Life and Call of Duty series (id Software). While some of these games pitted you against the fantastic, fighting demons, robots, monsters, and their ilk, others took a more realistic approach by putting you in the shoes of a modern day soldier fighting other humans. When the public and some members of Congress realized how violent and graphic some of these games were becoming, particularly the more realistic games, it was clear that there was a new, devil scapegoat in town.

The prevalence of such games today is difficult to ignore. Some entertainment experts are calling video games “the new movies,” citing major successes like Call of Duty: Black Ops, a first-person shooter putting you in the shoes of a modern day commando. If the sales numbers are any indications, those critics would be right. After grossing over $1B in just under a month and a half, Bobby Kotick, chief executive of Activision-Blizzard, the company behind Black Ops, said, “In all of entertainment, only Call of Duty [Black Ops] and ‘Avatar’ have ever achieved the billion dollar landmark this quickly. This is a tribute to the global appeal of the Call of Duty franchise,” (Takahashi, 2010). Many of these blockbuster hits, like Call of Duty: Black Ops, are widely distributed and reach enormous audiences and one Pew Center study showed that almost all teens are playing games of some form or another (Lenhart, Kahne, Middaugh, Macgill, Evans, & Vitak, 2008), so if they have any sort of impact on behavior it is of the utmost importance to be aware of it. This is even more critical if that impact on behavior is violent or criminal.

Games and Psychology

Do games really impact behavior, though? The topic of media studies, or the effects of media on thoughts and behaviors, is not a new one. The field was pioneered by Bandura, who conducted studies on children watching violent media. In his now iconic study, children watched a media clip and then were asked to play with a Bobo doll. The study showed that children who had watched violent clips were more likely to be more violent with Bobo doll, often emulating the behavior seen in the clip (Bandura, 1978). Modern studies have attempted to replicate the Bandura experiment, such as a study where participants played different violent or non-violent video games and then played a game where they had control over punishing their opponent (Anderson & Dill, 2000). Still, this is only one side of the story and the results are not as clear as they might seem at first glance.

The other side of the coin is that idea that the act of playing a game creates its own reality. In the book Rules of Play, the authors posit that game play creates a “magic circle” where the rules of acceptable actions change to accommodate the game in question (Zimmerman & Salen, 2003). This theory fully explains the Bobo doll and Anderson studies, where the aggressive behavior in question still fits into the circle of game play, not the circle of reality. Beyond this, another study centered around learning real world skills from video games showed that learning behavior from games, even when intentionally incorporated into game design, was a very weak link at best (Ke, 2008). Furthermore, video game sales have increased dramatically over the last three decades, yet there has been a corresponding severe drop in violent crime, prima facie evidence that there is not necessarily a connection between violent games and real world violence (Bureau of Justice Statistics, 2008).

Regardless of any connection or lack thereof between video games and real world violence, the link has been made repeatedly between the two, inextricably connecting games to crime in the eyes of the media.  In 1999, journalists attempted to connect the Colombine shooting to the aforementioned video game, Doom (Hartford Courant, 1999). In 2007, sources immediately made the connection between the shooter and his habit of playing Counter-Strike, a team-based realistic shooter (Benedetti, 2007), even though it was later discovered that the local players had never heard of him and that he was actually obsessed with a movie that he based his actions around (Truta, 2007). In February, Fox  News delivered a story where Carole Lieberman suggested that current games like Bulletstorm were promoting and causing rape (Brandon, 2011). Now with recent events in Oslo, sources claim that the attacker was using Call of Duty: Modern Warfare 2 as a “training simulator” to prepare for the bombing and shooting that left over 80 dead (Good & McWhertor, 2011). To the public, it doesn’t matter if there is or isn’t a scientific link between video games; stories like these sell newspapers and get page views, indicating that this is material that the public is interested in hearing about and discussing.

Games and Law

The next logical step from public interest is legal and political action, something numerous people from attorneys to congress people were willing to spearhead. The first instance of this began informally in 2001 with political pressure for stores to card minors when selling M-rated games, then formally in 2005 when Senators Hillary Clinton and Joe Lieberman started a campaign to introduce federal oversight for the existing video game rating system, the Electronic Services Rating Board (ESRB) (Fisher, 2005). The bill, known as the Family Entertainment Protection Act, never passed, though it marked the beginning of an era of legal action against violent video games. Throughout the decade, ex-attorney Jack Thompson pursued litigation against video game companies and retailers at every opportunity, focusing around games like Grand Theft Auto and antagonizing industry commentators like the creators of gaming web comic Penny Arcade (Krahulik & Holkins, 2005). In one interview, Jason Della Rocca, executive director of the International Game Developers’ Association, went so far as to call people like Jack Thompson “massacre chasers,” waiting for major, violent incidents to happen and then actively looking to relate the incident to video games as a cause somehow (Benedetti, 2007). Though this kind of legislation and litigation never gained much of a formal foothold given that the FCPA bill never passed and Jack Thompson was disbarred in 2008, they continued to doggedly increase in frequency.

In 2005 California introduced a law that would impose a fine on any store caught selling M-rated video games to minors. Additionally, the law would require that particularly violent games be labeled as such, though the law was not specific as to how this should be done or who would be responsible for doing it. This wasn’t the first law of its kind to be attempted, given previous, similar failed efforts in Minnesota (Sliwinski, 2008), but major current events in New York and California are notorious for gaining a great deal of national attention. When Governor Schwarzenegger signed this particular law into action, the gauntlet was thereby thrown, challenging a legal body to either formally strike it down or to uphold it and set the precedent nationwide. Games had been discussed and researched for years, looking for some link between playing them and engaging in violent behavior, but was there a real, criminal link? The public seemed to think so, but members of congress and various courts across the country either didn’t find the matter relevant or didn’t find that prohibitive laws were justified in their application. Still, the issue had never been brought before the Supreme Court, so it was anybody’s guess as to what would happen next.

Five years later, California’s law had gone through the various courts, being struck down at each just as the Minnesota law had been. The difference with California’s law is that it eventually made it to the Supreme Court in the form of Schwarzenegger v. the Entertainment Merchants Association (EMA), marking the first instance of a law related to video game violence ever reaching the Supreme Court. For the first time since their inception, video games had, for one reason or another, reached the same level of judicial relevance as books, movies, music, and television, making this a landmark case for numerous reasons. Would the Supreme Court rule in favor of video games as protected free speech as it had for the other media forms or were games dangerous enough, able to induce violent, criminal behavior, where they required special regulation? The Supreme Court’s decision would set a precedent not only for the development, production, and sale of video games, but for all sorts of media studies and regulation. If games were not dangerous enough that they required special laws to protect minors, then the argument would legally be finished; no media was, in the eyes of the courts, dangerous enough to influence behavior in criminal ways. On the other hand, if it was determined that games did require special laws, the argument against all other forms of media could be reopened, spawning a potentially devastating wave of anti-media criticism and regulation.

Reaching the Supreme Court: Brown v. EMA

The case was argued on November 2nd, 2010 and decided on June 27th, 2011 under the name Brown v. EMA. The introduction of the holding reads as follows:

“Respondents, representing the video-game and software industries, filed a preenforcement challenge to a California law that restricts the sale or rental of violent video games to minors. The Federal District Court concluded that the Act violated the First Amendment and permanently enjoined its enforcement. The Ninth Circuit affirmed. Held: The Act does not comport with the first amendment. Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium,” (Brown v. Entertainment Merchants Association, 2011).

Thus, the California law was struck down, citing First Amendment protection. The holding continues by stating that, “…a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails to test.” This brings with it some far-reaching implications about the nature of mediums and their possible impact on society.

Whenever researchers conduct research, they are either searching for truth for truth’s sake or with the notion of changing something about the world in mind. When it comes to policy, especially policy as far-reaching as holdings by the Supreme Court, the plane of research becomes a battleground. There are parties on both sides of the issue at hand each vying for control and attempting to show that their side is correct. Do power lines cause cancer? Do speed limits save lives? Do video games cause people to become violent or criminal? Each side brings its army of studies to bear and opens fire in the courtroom in an attempt to sway the judges to its cause. In the end, the judges are both refereeing bystanders and the ultimate deciders of who emerges victorious. The information and arguments at hand are weighed and measured and policy rises from the results.

In the case of Brown v. EMA, the holding demonstrates a clear example of how this works. Beyond the mention of precedent, the first basis for judicial decisions according to Cardozo (Cardozo, 1921), the holding for Brown v. EMA reads that:

 “Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media,” (Brown v. Entertainment Merchants Association, 2011).

So, in one fell swoop, the judges of the Supreme Court get to close the book on an entire chapter of media studies, at least in terms of their impact on direct legal policy. Unconvinced of the merits of any media studies purporting to find an effect of video games on real world violent behavior, these nine people get to be the utmost final authority on the subject. This implies that science is essentially only as valuable as its ability to convince its audience. It does not matter if there is more or less evidence for one side but it does matter if a group of people can believe in the evidence that is there.

This is representative of an overarching attitude towards science, casting a shadow over the entire discipline of criminology. The way that Brown v. EMA is handled speaks volumes for the treatment of science in law, making this not just a case about violence, violent video games, or free speech but a case about the value of any and all scientific, research-based disciplines. In this instance, no laws can ever be made restricting the sale of violent video games because of the Supreme Court’s decision, a decision made in some part by a judgment of scientific evidence.

Yet who are the justices to interpret science? After all, a Supreme Court justice is selected by the President who is selected by an electoral college who are selected by members of Congress who are voted on by the population at large of the United States. That seems like an awfully long chain of selection to determine who gets to be the arbiter of science, yet nowhere in that chain is there a prerequisite of understanding of research. The people are not required to understand how research works, so there can’t be any expectation for members of Congress to understand how research works except for the extent to which those members can convince the public that they understand it. From there, Congress selects members of the electoral college to vote on the populace’s behalf, yet neither the selection of the electoral college nor the voting in of a new president assumes any understanding of science, either. Like the members of Congress, the President can be no more expected to understand research than the people. Even as the disconnect grows, the President then selects a justice who is supposed to understand research and make important decisions regarding it, but neither the President nor the justice candidate is assumed to have any research training. Congress can then either accept or deny the candidate, but we have already discussed the manner in which members of Congress cannot be expected to understand science. Still, in the final phase, wherein a selected, active Supreme Court justice makes decisions of law and policy, a body of individuals who cannot be expected to comprehend the intricacies of research is ultimately responsible for deciding the fate of science. At no point in the process are scientists actually involved except in making a case for their discipline; a case that is ultimately judged based on its persuasiveness and not on its scientific merits or lack thereof.

Beyond its basic representation of the treatment of science, Brown v. EMA represents what is possibly the final stage of shutting down “protective” anti-media laws in regards to violence. The holding cites “penny dreadfuls,” or dime novels about crime, radio dramas, comic books, various literature from Homer to contemporary writing, and movies as previous cases where the public has called for some sort of protective laws, all of which were either struck down or overturned (Brown v. Entertainment Merchants Association, 2011). Video games are completely interactive in new ways not present in written or cinematic entertainment, so the Californian argument was that they merited special protection. The justices disagree, however, saying that this level of interaction is “nothing new” because Choose Your Own Adventure novels have previously existed to foster participation in determining the outcome of fictional experiences (Brown v. Entertainment Merchants Association, 2011). This may be a slippery slope, but the precedent established here, both in terms of video games specifically and along the continuum of dime novels, comic books, movies, and video games, is that no level of interaction will ever stand out as exceptional and warrant protective laws. The implication is that a company could literally construct a virtual reality violent simulator that is completely immersive, interactive, and realistic and no level of government could make regulations mandating its restriction without crossing the huge hurdle of gathering overwhelming, persuasive, scientific evidence that such a simulator drastically and causally affects the behavior of its participants. Brown v. EMA is not just a decision about video games, but a decision that represents the court’s unwillingness to restrict free speech even for potentially criminal reasons.

As a criticism of the holding itself and without speaking to the benefit or detriment of California’s original law in question, Brown v. EMA has some serious internal inconsistencies. On page 11 of the holding, section III states that:

“Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny – that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest,” (Brown v. Entertainment Merchants Association, 2011).

In spite of this demand for limits in lawmaking, the holding continues to enumerate other mediums that have been identified in possible increases in aggression, such as Saturday Morning Cartoons, non-violent action games, and images of weapons, then uses the lack of their similar restriction as justification to nullify the restriction on violent video games. The holding continues on page 14, stating that:

“The consequence is that [the Act’s] regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it. Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint,” (Brown v. Entertainment Merchants Association, 2011).

 With this in mind, how is it possible to simultaneously identify all possible sources of aggressive behavior, create laws restricting their proliferation, and defend those laws at the Supreme Court level? This exact argumentative tactic, that of requiring both limitation and inclusiveness, appears to be in use to selectively dismantle the California law in precisely the way the justices are accusing California of selectively confronting sources of aggression. The impossibly understandable conundrum is illustrated thus on page 17:

“California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive,” (Brown v. Entertainment Merchants Association, 2011).

How does a state determine what is over- or underinclusive? A catch-22 paradox solvable only by the Supreme Court justices and whatever their logical whims of the moment happen to include. The end result of the holding  in this case is the same, whether it is by this method or by arguing the merits of free speech, government censorship, or the potential social dangers of aggression-inducing material, but this particular portion of the legal methodology appears to be logically inconsistent.

Conclusion

Ultimately, Brown v. EMA represents many aspects of law and society. It is a microcosm in which one can understand the historical development of any social issue, from rising in the public mind to being addressed at the highest level of law and policy. In demonstrating how the Supreme Court justices handled the interpretation of scientific evidence, we see an isolated example of how an issue is drawn into the field of science and trickles up into policy. At the same time, flaws in the selection of authority figures and in the logical assessment of legal problems can be seen, yet this is also an example of how both a field of study and the field of government operate in manners that are both problematic and functional.

At first glance, video games may seem to be tangential to criminology, yet in the public mind they have become inextricably linked. For the first time in history, Brown v. EMA brought this issue to the highest level possible and assessed it critically. Scientific data, the results of numerous studies, and the testimony of experts in the fields of psychology and media studies were brought to bear. The merits of social protection, parental assistance, free speech, and censorship were all considered for a field that had no Supreme Court precedent, making this a landmark case for one of the largest and fastest growing entertainment sectors in the world. Yet, at the end of the day, the evidence was deemed insufficient, social protection and parental assistance were not evaluated as strong enough reasons to restrict free speech and censor an entire medium, and California’s law was struck down, laying this issue to rest in the United States once and for all. While countries like Australia and Germany are still struggling with ratings systems and video game regulation, it is extremely unlikely that the issue of regulating the sale of violent video games will ever gain momentum again in the United States.

References

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