Patterico's Pontifications


“It Ruined Me”: Schwarzenegger v. EMA

Filed under: General — Aaron Worthing @ 6:10 am

[Guest post by Aaron Worthing; send your tips here.]

Today is a big day in the republic, not just because of the election, but because Schwarzenegger v. Entertainment Merchants Association will be heard in the Supreme Court.  It will decide whether the creation and manufacture of video games is a form of expression equally protected under the First Amendment.  That is right, this is a story about video games and the law.  I am so there.

Of course these days video games have more of what most people would consider expression than ever before.  For instance, there can be little doubt that these laws are motivated in significant part by the various games in the Grand Theft Auto series.  But ironically while it is feeding much of the hysteria, it is also the series of games that looks and sounds the most like speech, maybe even art.  We have come a long way from twitchy games about one blip blowing up another blip.  In the Grand Theft Auto games, there are full cut scenes, featuring talented voice actors, delivering lines that aren’t cool but are instead designed to give emotional impact.  Take for instance, this conversation in Grand Theft Auto IV between Michelle and the main character Niko Bellic, a Serbian immigrant:

Michelle: Tell me about yourself. Tell me about Niko Bellic.

Niko: There is not much to tell. I just moved here.

Michelle: I know – and you live with your cousin – but what do you guys do?

Niko: I don’t have regular work, yet.

Michelle: So, what did you do in Europe?

Niko: I worked, in tourism.  In travel industry.

Michelle: Did you fight in the war?

Niko: Sure.

Michelle:How was that?

Niko: How do you think it was? Seeing your friends die? Seeing men have their legs blown off? It was… it was… it ruined me.

Michelle: I’m so sorry.

Niko: Me too.

The game also includes tons of commentary on politics and social issues.  It is, put simply, a very expressive game.  I mean, yes, it is still possible to do the really depraved stuff that the series is famous for, but to reduce the game to just that is to ignore more than half of the experience.

And one need only look at the definition of “violent video game” at issue in the case to see how flagrantly unconstitutional the challenged law is under the first amendment:

(d)(1) “Violent video game” means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:

_____(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.

(California Civil Code §§ 1746.  Sorry for the lines, but there was no other way I could get it to indent.)

Notice that subpart (d)(1)(A) treats violence in a manner identical to the standard for obscenity, including allowing the good (artistic, political, etc. value).  But (d)(1) is equally satisfied by the standards of (B) which doesn’t include any “quality” exception.  And consider what that would cover.

For instance, what would count as “substantially human characteristics?”  Right now I am deep in a game where you regularly set zombies on fire.  Are they sufficiently human?  I mean they were once human, so does that count?  In the game Ratchet and Clank: Up Your Arsenal, you regularly encounter robots that, as you attack them, often lose the lower half of their bodies.  They then will crawl toward you, a la the finale in The Terminator.  Mind you, all of this is done for comedy purposes, given that the robots look like a recurring character who is a buffoon, and the normal reaction to seeing the homage to The Terminator is to laugh; trust me, it is Airplane!-like humor, and not at all horrible.  And indeed, any game that affords  a certain amount of freedom to the player allows for some mean stuff.  Would you say that throwing a man off a building counts?  Well, you can do that in Spider-Man 2.   Mind you, it is a bloodless death, but if you encounter enemies on the roof of a building you can either beat the tar out of them right there, or just chuck them off to their tortuous death.  No questions asked.

It would be hard for me, as a lawyer, to tell a client who makes video games where this line is drawn, at all.  And that creates a problem in itself, called the Chilling Effect.  To quote myself in another context

in First Amendment law, we have what is called the Chilling Effect.  It is the idea that those who speak do not want to fear even getting close to the line between permissible and impermissible expression.  It is the idea that some will be silent not because they wish to engage in unprotected speech, but because they are afraid their protected speech will be mistaken for the unprotected kind.  How far would you go, if you are afraid of losing your business?

It is for that reason that the Supreme Court will strike down a statute if it creates that kind of chilling effect, which is clearly what will happen here.

And at the same time, subpart (d)(1)(A) is also unjustified.  Simply put, the rules applying to obscenity shouldn’t apply to violence as it does to sex.  And if you don’t agree with me, let me suggest a cup of hot coffee to clear your mind.

Now all of that goes to whether the First Amendment protects the right to make such games.  But at the same time, let me put this as simply as possible.  If you have a child who is sixteen years old or younger, and you buy Grand Theft Auto for him or her, you are a bad parent. And I fully support stores voluntarily restricting the distribution of these games, even if it’s a little ridiculous to be carded at Target all the time.  Freedom of Expression is not granted because we want anything to be said to anyone, but because we don’t trust the government to decide who should hear what and when.

Anyway, if you are interested in reading more, here is the main Scotusblog page on the subject, including a nice Argument Preview as well as many relevant documents.  Here’s an interview with lead counsel in this suit.

And here is the case below, correctly decided by the 9th Circuit.  No, that is not a typo.  I am saying the 9th Circuit got something right.  Crazy.

And on the topic of the growing emotional maturity of games, there is an excellent article on IGN games on whether games can be art (in response to a comment by Roger Ebert, who has since taken it back, to a degree).

[Posted and authored by Aaron Worthing.]

48 Responses to ““It Ruined Me”: Schwarzenegger v. EMA”

  1. btw, i purposely rolled back the time, so Patterico’s post goes first.

    But i figured it would be good to talk about something other than the election today, as well as the election itself.

    Aaron Worthing (e7d72e)

  2. I played Grand Theft Auto not long after it came out, with a bunch of cops and FBI agents. We went around carjacking and shooting cops and committing various other lawless acts, laughing the whole way. The more perversely unlawful our characters’ actions, the louder we laughed.

    It’s a game.

    Patterico (c218bd)

  3. I am surprised that they have not made a game where Republicans push old people’s wheelchairs off a cliff, starve babies, and oppress minorities.

    JD (77596e)

  4. As a “sandbox” style game, the reputation really reflects more on the players than the game.

    Aaron (b4ec19)

  5. The only thing that will get this law struck down is the Court’s general unwillingness to create a new class of speech.

    And frankly, as someone who games on a regular basis, and found the ability to stab two guys in the head with wrist blades in Assassin’s Creed to to be completely and totally awesome, I don’t see what the real fuss is about this law. I get that there will be a small decrease in the pool of possible shoppers for some games (read: all the good ones), but the law doesn’t make it illegal for a 13 year old to play, possess, or own a violent game – it just means they have to have their parents buy it for them.

    Lets be honest here – who thinks that parents today will actually not buy their kid whatever game they ask for, regardless of the content? And if the parent won’t buy it for them, should I be troubled? God knows I could do with fewer 12 year olds in Halo games.

    “I’m sorry to interrupt your profane, slur-filled ravings, ‘Xx p00nhun3r xX’, but I have to ask… Are you a young girl, or has your voice just not changed yet?”

    The Departed (d027b8)

  6. You’ll get no argument from me – the obscenity cases were wrong; the court shouldn’t compound the issue by adding a new class of unprotected speech.

    That said, it’s anyone’s guess where it will end up. Scalia has shown himself to be quite free-speech-oriented in surprising ways in the past (see, eg, the Texas flag burning case).

    aphrael (9802d6)

  7. GTA4 really didn’t appeal to me very much, but the game is much more fun and challenging if you try to minimize your criminal activity. It’s also a lot more realistic.

    I do love sandbox style games, but some of them are much more creative than GTA4 was.

    I am surprised that they have not made a game where Republicans push old people’s wheelchairs off a cliff, starve babies, and oppress minorities.

    Comment by JD

    Actually a lot of games basically presume this. GTA4 has quite a bit of political commentary (such as the Republican Space Rangers or the politicians you are supposed to kill in GTA4 and Vice City). It touches on real estate manipulation, racism, gangs.

    Generally speaking, in games, doing ‘the right thing’ is to go with the general morality popular on MTV. Bioshock was a direct (and poor) condemnation of Ayn Rand. Fallout has anti-republican points that are pretty unrealistic (and it’s all about how bad nuclear weapons are). Metal Gear has more insight and depth, but again is generally a war protest.

    As some games are more cartoonish, the political narratives tend to get more cartoonish. Metal Gear’s sober take included the notion that war was necessary in some cases, but Bioshock’s treatment of objectivism was silly.

    I’m not complaining. I think games are an excellent way to express ideas about morality and politics, because games are interactive. You don’t passively observe someone make a choice (in a good game, anyway).

    It is amazing to me that such an obvious form of speech would require a trial. Even though it’s so often not speech I agree with, this is a no-brainer.

    Dustin (b54cdc)

  8. Hooray! We agree 100%!

    Chris Hooten (c37d0e)

  9. Crissyhooten supports Bradblog, which is partnered with a convicted bomber, drug smuggler, and perjurer.

    JD (dd00f1)

  10. So it must say a lot about fundamental freedom that Hooten agrees on this issue.

    Dustin (b54cdc)

  11. Chris Hooten agrees with me?

    That’s good… i think.

    Aaron Worthing (e7d72e)

  12. Now you are smearing me with guilt by association with that guy? What a loser, JD. How far do you want to take the “six degrees of separation” smear with people, sheesh. What are you trying to achieve anyways, being the undisputed world champion of douchedom?

    Chris Hooten (13bd45)

  13. Methinks JD should not try smears with guilt by blogger-association.

    The Departed (d027b8)

  14. btw it is not bradblog which is partnered with Kimmerlin or Kimmerson or whatever the fuck his name is that you are somehow trying to associate with me. Get your facts straight. Oh wait, you don’t deal with those well, I forgot. Way to be a buzzkill, JD. I was trying to be positive, and you had to open your mouth.

    Chris Hooten (13bd45)

  15. It was a half hearted joke, mocking the way hootenanny and the leftists routinely argue, and what they are willing to accept amongst their fellow travelers.

    JD (2b4a42)

  16. Hmmm, guess I’m going to have to do some archive searching for Hooten’s smears by association …

    SPQR (26be8b)

  17. Hooten plays guilt by association.

    That didn’t take long. Want more Chris or are you going to politely retract your hypocrisy by yourself?

    SPQR (26be8b)

  18. SPQR, I would not be so quick to fail to add JD to that list of hypocrites.

    The Departed (d027b8)

  19. That’s just JD being snarky. He’s not civil and he’s not really trying to be a serious philosopher. I eventually realized he isn’t taking himself as seriously as … I take myself, and it’s just more fun with someone mocking and poking.

    JD’s good people, I suspect.

    And if I’m reading between the lines well enough, I wouldn’t compare Kimberlin and Brad Friedman to an egregious internet tough guy. I’m sure I’m just ignorant of the specific problem here. I still advise moving forward. Sincerely, no disrespect intended.

    Would you believe I thought ‘Departed’ was Doc Savage for a few comments? oops.

    Dustin (b54cdc)

  20. I have hard edges. And, Diebold.

    JD (2b4a42)

  21. Would you believe I thought ‘Departed’ was Doc Savage for a few comments? oops.

    Why do I feel as though I’ve been insulted?

    The Departed (d027b8)

  22. It wasn’t an intended insult. When I say ‘no disrespect intended’ I mean it.

    When I try to be insulting, it’s very obvious.

    Dustin (b54cdc)

  23. btw it is not bradblog which is partnered with Kimmerlin or Kimmerson or whatever the fuck his name is that you are somehow trying to associate with me. Get your facts straight.

    It is Brad Friedman who is partnered with Brett Kimberlin, the Speedway Bomber who blew off Carl DeLong’s leg. Do you deny this? How do you feel about it?

    Patterico (55c999)

  24. Patterico – previously, his response was “meh”.

    JD (2b4a42)

  25. Kimmerlin or Kimmerson

    I laughed at this because you-know-who doesn’t like to see that name spelled out, either. Even though they are partners on a 6 figure charity.

    Chris, don’t take up for Brad Freidman. You don’t have to in order to care about our elections being true. He is a con artist, IMO. His partner is a con artist, IMO. And I think it’s a lot worse.

    The democrats should push these people to the extreme fringe of their movements.

    Dustin (b54cdc)

  26. not through bradblog, however. They co-founded, and I don’t know what any of that has to do with me. What’s with the McCarthyism? And JD, you may have hard edges, but you surely have a soft head.

    Chris Hooten (13bd45)

  27. I am about the most hard headed person you would ever have the pleasure of meeting.

    JD (2b4a42)

  28. meh to the guilt by association charges. Not “meh” to Kimberlin’s story. I even clarified that, but you conveniently ignored it like a putz, JD.

    Chris Hooten (13bd45)

  29. What’s with the McCarthyism?

    Meh. Kimberlin is not disliked for his politics. People aligned with him to get rich are not being exposed for their politics.

    And I have no idea what the hell you mean by ‘not through bradblog’. I don’t think it’s very accurate and I don’t think it’s very relevant.

    Who is Agent 99? Why does bradblog censor any discussion of this issue when it directly relates to the issue of fair elections?

    Dustin (b54cdc)

  30. The leftists are angry angry angry.

    JD (2b4a42)

  31. Yes, but all that cranium is protecting mush.

    Chris Hooten (13bd45)

  32. Well, I admit I do dislike him for his politics too, but that’s not what this is about. McCarthyism? We’re asking you about a killer. A lady died with a bullet in her head. A man suffered a fate worse than death and then killed himself. A con artist has routinely invented lie after lie for money.

    You defend Brad because of multiple URLs?

    Dustin (b54cdc)

  33. Incompetence, Hooten, its your only legacy.

    SPQR (26be8b)

  34. Crissyhooten’s feeling of impotence has overcome him, making him just a sad, angry, and hateful thingie. I hope you feel better, once your despair wears off.

    JD (2b4a42)

  35. velvet revolution dot org is a totally different website from and is not related in any way other than Brad Friedman is associated with both. Kimberlin is associated with velvetrevolution, but not bradblog at all. It is totally relevant. You smear all of these associations together so much you don’t know who is associated with what. Kimberlin has nothing to do with bradblog. I don’t know what the deal is with agent99. WTF, am I the bradblog specialist or something? You people are insane. I have nothing to do with that Kimberlin guy. I am not defending Brad, I am stating that you people are morons for not knowing that the two sites are not related. I visit bradblog every once in a while, and suddenly I am associated with some guy other than brad from, because you people are about as sharp as butter knives, and have the apparent logical ability of a turnip.

    Chris Hooten (13bd45)

  36. velvet revolution dot org is a totally different website from

    Is that intended to be insightful?

    . I am not defending Brad

    Of course you are. That’s a defense of Brad you just made… that he has a different URL than one of the URL’s Brett is related to (of course, Brett’s related to the bradblog url too, and it was a silly defense to begin with).

    suddenly I am associated with some guy other than brad from

    You were asked for a reaction to this issue. Your reaction is that you don’t care. I think that’s wrong of you. No one is saying you helped Brad fund Brett’s con operation. You’re failing your own standard of guilt be association, but to me, you’re just defending censorship and conning.

    Dustin (b54cdc)

  37. I just remembered that the first time I chatted with Chris, he was FURIOUS that his comments were moderated automatically when he used profanity.

    And he’s defending automatic moderation if it helps Brett Kimberlin and con artists.

    That’s pretty amazing.

    Dustin (b54cdc)

  38. Dustin – it is more than moderation, it is full on censorship when it comes to that issue. And they are not completely separate issues, as Kimberlin is deeply involved in some of the voting integrity issues, as I recall, along with Freidman.

    JD (c8c1d2)

  39. OK, I just want to make sure I’m getting this right, Dustin…

    Chris’s lack of condemnation of Brad is to be seen as tacit approval?

    I’m just restating my own words what I’m gathering here. If I’m wrong, please let me know.

    The Departed (d027b8)

  40. Chris’s lack of condemnation of Brad is to be seen as tacit approval?

    Chris issued a defense. I quoted it in 36. It’s a silly defense, and I suspect he’s not really clear on what he’s talking about.

    I don’t really know that Chris approves of this con so much as he’s not aware of it. You can’t talk about it there because, as JD notes, it’s silenced completely and severely. I don’t think Chris read the discussion here about it either.

    But I don’t want to weasel out of the proposition you’re actually asking me about.

    I do believe that Brett’s behavior is of a substantial degree and quality that should be condemned. People who fail to condemn it, knowing about it, such as Brad for example, are accepting this behavior. That’s close enough to approval for me.

    I don’t know how this relates to the analogous (or not analogous) issue. But I didn’t want to weasel out.

    Dustin (b54cdc)

  41. Thank you for your response.

    I just wanted to make sure I was clear on this matter.

    The Departed (d027b8)

  42. I’m not defending Brad, or automatic moderation, or anything. I don’t know what the agent99 issue is, and I don’t read velvetrevolution, so I don’t know why everyone thinks they can make poo stick to me with any of those issues. You people demand that I defend brad, or kimberlin, or some other person, then I don’t, and then you claim that I did. CRAZY, whacked-out kool-aid drinkers that think that any of those issues reflect on me or my character at all. How can one even honestly consider such a tremendous logical fallacy? Bob knows fred, who reads jill’s blog sometimes, and jill does cooking projects with sam, who was convicted of cocaine trafficking and child prostitution, so obviously this reflects poorly on not only fred, but bob as well, and all of fred’s other associates and business partners. What kind of crazy-stupid-retarded person goes to such contorted degrees to demonize someone?

    Chris Hooten (13bd45)

  43. Ishould have ignored the barking moon bar when he posted his initial comment. It is not nice to make fun of the short busser. I apologize for leading this thread off the rails.

    JD (c8c1d2)

  44. Auto spell check is teh suck..

    JD (c8c1d2)

  45. Yeah, this actual thread topic is really interesting to me, JD, and sadly it’s completely off the rails. Jharp did a great job ruining a thread on Yusuf yesterday, with all our help.

    The Republicans can make major headway on a lot of emerging issues. IP laws need major reform. New artforms are under attack from government intrusion.

    I’m expecting way too much to see the GOP agree with me on these matters, but I’m happy Aaron is discussing them. I think Aaron’s a PS3 fanboy like me. I think Departed is more of a Halo guy, bless his heart.

    Dustin (b54cdc)

  46. No diss was intended by that, D.

    Dustin (b54cdc)

  47. If the SCOTUS allowed those disgusting crush videos of animals as free speech, does anyone seriously expect them to stop video games?

    JEA (229171)

  48. JEA, no, I certainly don’t.

    Thank goodness. But some are fighting against our rights.

    Dustin (b54cdc)

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