Car News

As the local librarian-with-1st-Amendment-training, I probably ought
to comment on the California case. (One of my MLIS courses
specifically covered video game censorship law, and I've even written
a paper on the topic.) I haven't had time to review the filings and
listen to the oral arguments yet, but here's some background and my
first impression:

_BACKGROUND_

First of all, the plaintiffs (the video game industry) basically has
to prove a short list of things: (1) that the video games constitute
speech insofar as the 1st Amendment is concerned, (2) that the
specific content being censored is not already unprotected, and (3)
that the government cannot justify censorship of that specific medium-
content combination. More specifically, they have to prove 1 and 2 and
then effectively keep the government from disproving 3, because
proving 1 and 2 will allow them to force strict scrutiny (http://
en.wikipedia.org/wiki/Strict_scrutiny).

1 is probably not going to be a problem; case law says they're speech,
finding that something is not speech is incredibly difficult, and the
California law is formulated on the assumption that they're speech.
Where this could prove difficult is if one oddball justice upholds the
law on these grounds and four on other grounds, resulting in a 5-4
vote in favor of the law but without a majority agreeing on why . . .
and this is exactly the sort of issue where you get those sorts of
votes.

2 is probably also not going to be a problem, as violence has never
had the kind of unprotected status that obscenity has, even if part of
the law is modeled on the definition of obscenity.

3 is where any trouble is likely to come from. Part of the statute in
question defines the type of restricted content in a manner that is
basically a word-for-word copy of the description of obscenity, which
can be legally restricted. However, that is not the whole of the
statute, nor is it the only definition of restricted content in the
statute.

_FIRST THOUGHTS_

There are two ways that content can be covered by the statute. One is
to meet a violence-themed version of the Miller test (http://
en.wikipedia.org/wiki/Miller_test); the other is if the game "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." I don't
know where they're getting that definition; unless it's from a source
as rock-solid as the Miller test, it doesn't look likely to survive to
me. (They do define the terms used in that definition, but this is
much more into "massive expansion of unprotected speech" territory
than just implementing the Miller test, and it looks vulnerable to
overbredth and least-restrictive-means arguments to me.)

A labeling requirement for video games that are covered by the statute
is in the law. It looks suspiciously familiar; I want to say that this
was in the equivalent Illinois law, although I'd have to dig up my
notes. It is (A) forced speech (but probably not overturnable on those
grounds alone) and (B) arguably not meeting the least-restrictive-
means test for surviving strict scrutiny (if only because a 2-inch-
by-2-inch label on the front of the packaging is far more intrusive
than necessary). IIRC, the Illinois statute also had some other
overturnable stuff in the same section, though, so this might
theoretically survive if anything else does.

Honestly, it's entirely possible that the Miller test equivalent and
some version of the labeling requirement (which is necessary to make
the rest of it work; you can't restrict sales if you don't know which
games it applies to) will survive if the court doesn't want to take
the position that violence is infinitely protected in all contexts.
And if that happened, I wouldn't mind. I may be a Radical Militant
Librarian, but the Miller test doesn't overly offend me, as it's
incredibly narrow. In fact, some people have argued that it's
impossible for anything to actually meet the test! In actual practice
some things do, of course, but here's the best part of the test as it
appears in the California statute: "It [violence] causes the game, as
a whole, to lack serious literary, artistic, political, or scientific
value for minors." In other words, if the game _as a whole_ has
"serious" literary or artistic value or a political message, it can't
be regulated under this definition, and it would be up to the state to
prove that it lacked any of the above if they wanted to prosecute
anyone. Quite a lot gets in past the obscenity version of the Miller
test on these very grounds, so we can predict that the same thing
would happen with video games.

_IN SUMMARY_

Court-watchers think the court is generally leaning against the
statute, but I do think that it's possible that some partial version
of the statute could survive. I do not think that this would be a
terrible outcome if it was the right part, and the right part also
happens to be the part most likely to survive. Of course, predicting
the Supreme Court is not 100% certain.

For the record, I Am Not a Lawyer (IANAL), and this is not legal
advice.

In service,
M. Alan Thomas II

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