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Supreme Court Probes Into Violent Videogame Business

California’s deputy attorney general, Zackery Morazzini, faced tough questioning from the U.S. Supreme Court yesterday, in the state’s petition before the high court to reinstate a 2005 law restricting the sale of violent videogames to minors.

But the Court also grilled Paul Smith, counsel for the Entertainment Merchants Association (EMA), on the group’s assertion that violent videogames were a form of speech protected by the First Amendment of the U.S. Constitution. The industry likely won’t know the upshot of the oral argument session until next June, when the Court is expected to issue its ruling on the case (Schwarzenegger v. EMA).

Justice Antonin Scalia cut Morazzini’s opening statement short to ask how California defined the “deviant” violence that would render games subject to the criminal statute. Later in the session, Justice Elena Kagan expounded upon Scalia’s question, asking Morazzini, “How do we separate violent games that are covered from violent games just as violent that are not covered?”

Morazzini replied that a jury could be instructed with expert testimony and clips of gameplay to judge the violent content for itself. “I’m not concerned about the jury judging,” Scalia responded. “I’m concerned about the producer of the games who has to know what he has to do in order to comply with the law. And you are telling me, well a jury can — of course a jury can make up its mind, I’m sure. But a law that has criminal penalties has to be clear. And how is the manufacturer to know whether a particular violent game is covered or not?”

“Justice Scalia, I am convinced that the video game industry will know what to do,” Morazzini said. “They rate their videogames every day on the basis of violence. They rate them for the intensity of the violence.”

The California official also told Justice Kagan that “some, but not all” of the videogames currently rated “Mature” by the Entertainment Software Rating Board would likely be covered by the statute.

Justice Stephen Breyer took up this point later in a question to EMA attorney Paul Smith, asking why game publishers could not use their self-imposed ratings system to anticipate which titles would earn “deviant” designation by the California statute.

“These ratings that the state wants us to impose,” Smith replied, “are going to conflict with the ratings that are already on the packaging which are being used by parents every day to make these judgments. So it’s actually interfering.  The prospect of it would interfere with the information already on the packaging.”

Full transcript of the argument is available on the U.S. Supreme Court’s website. The Wall Street Journal has additional analysis.

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