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California Had to Start Somewhere on Game and Player

California Had to Start Somewhere

Michael Ubaldi  //  November 12, 2010

SCOTUS confronts video games.


ustices of the Supreme Court work like the late William F. Buckley Jr. — much time spent in study followed by a high-velocity release of sound and reason. In April, the high court agreed to hear Schwarzenegger v. EMA. Judging by a transcript released after November 2 proceedings, California deputy attorney general Zackery Morazzini spoke for thirty-two seconds before he was interrupted by Antonin Scalia.

Justice Scalia, whose practice of the Socratic method approximates the discourse between a boxing glove and your face, had heard enough. Defending a 2005 law prohibiting the sale of certain entertainment software to minors, Morazzini presented the "deviant, violent video game" as Exhibit A. "As opposed to what," asked Scalia, "a normal, violent video game?" He adduced Grimm's Fairy Tales. Doubly attempted infanticide, cannibalism, geriatric incineration? Flip to Hansel and Gretel.

Ruth Bader Ginsburg followed quickly: Why video games? What happened to other methods for vitiating the innocence of youth? Morazzini responded with the latest explanation for seeking censorship of moving pictures: there are audiences, and then there are actors. Players pull triggers. "[V]ideo games are not only exemplary teachers of pro-social activities, but also exemplary teachers of aggression." By whose account? Oh, there are studies, he maintained — and while none of them are conclusive, just as with infinite monkeys and infinite typewriters, someone in a lab coat and a grant is bound to pinpoint the punch-jump that makes Junior go bad.

Antonin Scalia adduced Grimm's Fairy Tales. Doubly attempted infanticide, cannibalism, geriatric incineration? Flip to Hansel and Gretel."Suppose a new study suggested that movies were just as violent," countered Elena Kagan. Pernicious is pernicious, so — regulate them both? Morazzini tried his hardest not to slip down the slope he'd adumbrated, but not quite acknowledged, with his grand opening statement.

Then Sonia Sotomayor gave him a good push. One of the studies measured, goodness knows how, the psychological effect for assent to violence — and levels of R-rated action matched those of Looney Tunes; you know, the one where Bugs really lets Elmer Fudd have it. The justice went on to examine motives, which we ought to as well, insofar as Leland Yee — author of the law — terms the most violent games "murder simulators." Unless one is inculcated, programmed, to cause injury, and commits the crime out of a spasm of the muscle memory; he contrives that intent from a germ of emotion or reason or will. What about contempt? Hatred? Disrespect? Sotomayor's example was rap music. "Have you heard some of the lyrics? . . ."

A game I regularly play, Call of Duty: Modern Warfare 2, depicts repetitive and lethal firefights between combatants both legal and illegal, per Geneva. It isn't particularly graphic but it is intense; and as Game and Player editor Jeremy Steeves suggested recently, it has instructed me to succeed — vicariously — in the deception, surprise, incapacitation, and killing of characters controlled by other players.

Now, multiplayer sessions of this game are assembled in lobbies during which players may hear and respond to one another over voice-chat, and read gamer-tags and profiles. As I have said to friends before, one may as well come away from these interactions believing that players think each other to be homosexual black men. Racism and other strains of bigotry appear effortless, almost involuntary, among verbal exchanges — to the point where it is unlikely that a single lobby will be free of it. Customizable names and four-word affiliations contain every typographically possible reference to female anatomy, bodily functions, and sexual assault.

In an hour's playtime, I run across very unsavory people — but Modern Warfare 2 has nothing to do with it.But whether or not this crudity assists in homicidal coarsening is secondary to the fact that it is extrinsic to video games. By definition of the independent, industry-regulated Entertainment Software Ratings Board, a video game cannot contain the majority of these cultural offenses. In an hour, I run across very unsavory people — but neither Modern Warfare 2 nor its peers have anything to do with it.

Later on in the hearing, Justice Anthony Kennedy swept in with what may be the spoiler: the appellants' model for sequestering material for legal adults, Ginsberg v. New York, was a case about sexual — not violent — content. Judges, good judges, can't and won't simply transpose. "[Y]ou are asking us," admonished Kennedy, "to go into an entirely new area where there is no consensus, no judicial opinions."

Well, now. Answered the attorney general, "We had to start somewhere."

More dialectical pinballs bounced around. Scalia wanted to know if media that advertised overdrinking to minors should be regulated. Ixnay on the Nimal House-ay? Stephen Breyer drew a parallel to fighting words — one example of restricted speech — that was severed by Ginsburg, who noted that Chaplinsky v. New Hampshire rarefied the link between intent and action to one of immediacy. So again, we ought to ask, are Wipeout players running to the car to break Mach 1?

"You are asking us," admonished Justice Kennedy, "to go into an entirely new area where there is no consensus, no judicial opinions."Up came Paul Smith, representing the Electronic Merchant's Association. Justices gave him meet dissection, prodding on just where the state's limits on composing and enforcing a law really lay. Chief Justice Roberts twice conflated the things legislatures can proscribe — cigarettes, alcohol, motor vehicle operation — with what it can't. "[C]igarettes," Smith volunteered, "are not speech."

Back to Morazzini. "California's law," went his rebuttal, "really is not an ordinance that is directed to a plot of a game. It's expressly directed to games with essentially no plot, no artistic value." How many of those are there? Elena Kagan submitted, indirectly, Mortal Kombat, though noting its popularity gained during the average law clerk's teen years. Scalia confessed, "I don't know what she's talking about."

An interstice widened when Sotomayor posed the hypothesis that a Vulcan subject to cruel violence would be accountable under California's law. No relief for Spock? Morazzini said no, presumably banking his argument on the defensibility of narrow interpretation. So a player could do his worst, and, "if the video producer says this is not a human being, it's an android computer simulated person, then all they have to do is put a little artificial feature on the creature and they could sell the video game?" Again, it would be legal.

Case submitted, elders finished with opining on culture unacquainted. Six to three? Five to four? One thread emerged: those with the least distance to video games showed the greatest doubt over the State of California's bid to command what may be sold and played.

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