The United States Supreme Court hears its first ever case about video games this week. The stakes are high. Here's what is happening and why it's happening.


The United States Supreme Court is hearing that video game case this week, right? Right. The State of California vs. The Entertainment Merchants Association and Entertainment Software Association (aka "The Video Game Industry"). Oral arguments begin at the Supreme Court in front of Justices Roberts, Thomas, Kagan and the rest on Tuesday at 10am ET.

What's it about, again? Whether violent video games should be treated like pornography — in other words, whether there can be a type of violent video game that would be legal to sell to adults but illegal to sell to kids.


Oh, like R-rated movies? No, not like R-rated movies. It's legal in the United States for a kid to go see an R-rated movie, even if it's against the rules set forth by the movie industry. The only kind of movies that are illegal for kids to see are obscene ones (they're illegal for anyone to sell to anyone of any age). Those movies would fall under a special category defined by the Supreme Court in the late 60s for certain kinds of sexual material. California wants violent video games to be treated like that extreme sexual content, something no violent movies, books or magazines are subject to.

So who got the idea that violent video games should be treated like Hustler magazine? The government of California and a bunch of other states. They've been trying to get this on the books for much of the past decade.

What did video games ever do to them? In the middle of the last decade, California assemblyman Leland Yee, a child psychologist, picked up on an effort across several states to try to criminalize the sale of really violent video games. He says he did this because he believes ultra-violent games can harm kids in ways other forms of violent entertainment can't. He wrote a bill in 2005 that would fine a retailer $1,000 for selling really violent games to kids. California Governor Arnold Schwarzenegger signed it into law later that year.

So it's been illegal in California to sell violent games to children? Nope. The video game industry sued, as they had in many other states, and got the law blocked from taking effect. Two tiers of courts have since said, as they had in other states, that the law violated the Freedom of Speech guaranteed by the First Amendment to the United States Constitution.


All this mention of "really violent video games." Which "violent video games" would this law have pertained to? Yee and his allies often describe passages from 2003 game Postal 2, which does contain a lot of heinous content.

California would go after Postal 2 and what else? Not God of War or Call of Duty, right It's hard to say, but the California law does include the following standards, which the government would use to determine which games should be illegal for kids to buy:

(A) Comes within all of the following descriptions:

(i) A reasonable person, considering the game as a whole, would

find appeals to a deviant or morbid interest of minors.

(ii) It is patently offensive to prevailing standards in the

community as to what is suitable for minors.

(iii) It causes the game, as a whole, to lack serious literary,

artistic, political, or scientific value for minors.

(B) Enables the player to virtually inflict serious injury upon

images of human beings or characters with substantially human

characteristics in a manner which is especially heinous, cruel, or

depraved in that it involves torture or serious physical abuse to the

victim.


That first part seems familiar. It should ring a bell, if you pay attention to law. It's pretty much the Miller Test which was established in the 1970s to determine if something is obscene.

Hmmm. I wonder if anyone who plays video games would agree that there are games that "lack serious literary, artistic, political or scientific value for minors." Probably not.


Why is the Supreme Court getting involved in this? Great question, one that the video game industry, which is defending the case would surely love to know. They've been on a perfect win streak so far. Court after court has struck down the California attempt and those of other states to ban the sale of really violent video games to kids. But in April, the Court agreed to hear the case, so surely they think something here needs another look. This is the final chance for those in the California/Yee camp to win, to essentially score a knockout after losing every round of the fight.


No, no, no. The court would not make it a crime to sell violent games to kids in America, would they? They might. They could. There are no laws that limit the sale or exposure of violent entertainment to minors, but the court could decide, through this case, that the time for such restrictions is right and not a violation of the Constitution.

Wouldn't this cause a problem for violent movies? It would seem to, which is probably why the main trade groups for the movie industry, the music industry, the comic book industry and others have filed briefs to the Court siding with the video game industry. The gaming industry has gotten a mountain of support from Activision to Microsoft, from the American Civil Liberties Union to the United States Chamber of Commerce.


But what about the science? California had been arguing with Yee citing his child psychologist credentials, that they had science that proved a correlation between violent games and violent acts committed by kids. Their science hasn't swayed lower courts and even they aren't just banking on that. They believe their idea of violent games fitting in that Hustler category of extreme content inappropriate for kids should suffice. Plus, they like to argue, those video game industry ratings don't work. Kids buy the violent video games unimpeded (the gaming industry begs to differ, of course).


Yee sure isn't into video games, huh? Just not the violent ones kids might get their hands on, though he said he can live with companies making games that involve chopping off his head.


What would happen if the Supreme Court decided in favor of California? One thing is for sure; it would become a crime to sell really violent games to kids. The problem would arise, of course, as to identifying which games such a law would prohibit. The fear of the people on the side of the gaming industry is that this confusion would force retailers to be conservative in what they sell to kids and that it would force game publishers and developers to also hold back in the types of content they create, lest they sell a game that a retailer would be afraid to sell to a minor.

That doesn't sound so bad. GameStop is already supposed to not sell M-rated games to kids. True, so your reaction to what could happen here depends on how you view the First Amendment and where video games fit in. If the Court rules for California, they are saying there is something different — and more potentially damaging — about video games compared to books, movies, music. Agree or disagree?


OK. Where can we watch this all unfold? Supreme Court hearings are not televised. Reporters aren't even allowed to bring electronics into the chamber. So let's just hope a reporter who knows his or her stuff about video games reserved a seat to sit in the Supreme Court on Tuesday.

Who? You? Yes, I've got a seat reserved in the Court. I'm ready.

This happens on Tuesday? Isn't something else happening on Tuesday? Yup. Don't expect these oral arguments to get many headlines on Tuesday and Wednesday. Election Day is Tuesday and the balance of power in Washington is expected to shift big time. The mainstream media will be focused on that. In fact, Tuesday's the day Jerry Brown, the attorney general for California (who won't be arguing this case himself), may become the next governor of his state, succeeding Arnold Schwarzenegger, unless he loses to Meg Whitman.


Tuesday sounds like a big day for gamers, at least. And we'll know the outcome then? It will be a big day, but it won't be the end of all of this. Oral arguments happen Tuesday morning, but the court has until the end of June to issue its decision.

Follow Kotaku's coverage of this momentous case at our Schwarzenegger Vs page.

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