A quick legal review of the Supreme Court Decision
Written by Charles Husemann on 7/1/2011 for
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EIC Ramblings
With the Supreme Court finally reaching a decision on Brown vs. the EMA we chatted up a local legal expert to get this opinion on what these means for the video game industry.
Could you introduce yourself and your legal background?
My name is Paul McGreal. I’m the dean and a professor of law at the University of Dayton Law School and I’ve taught constitutional law and first amendment rights for the last 15 years.
To help frame your viewpoint, do you have any kids and do they play video games?
Yes I do, I have a 12 year old son and we actually play video games together.
Do you monitor what he plays and are you familiar with the ESRB standards?
Yes. As a parent I look at the ratings and I also read about it online before we make a purchase. I consider myself to be an involved parent from that perspective.
The decision from the Supreme Court came down on Monday in favor of the gaming industry. Was that the decision you thought they would reach or were you taken aback by it?
It’s consistent with what I thought they were going to do because the law was too broad. One of the things Justice Scalia pointed out in his opinion was that the same argument the government was using to ban or to punish the sale of violent video games to minors, could equally extend to cartoons, he cited Bugs Bunny, as well as to video games that are rated E for Everybody like Sonic the Hedgehog. So this law was way too broad.
The thing I think was striking was that Justice Scalia seemed to slam the door shut pretty conclusively on any type of law like this for the near future, saying that there was no evidence to uphold the government’s interest in protecting minors from these video games. There’s a lot of work for governments to do in terms of doing studies and looking for a link between playing violent video games and actual violence in the real world by minors. He said there was no proof of that, and there’s a lot the government is going to have to do if it’s going to try and find proof of that.
So would you agree that this decision officially gives video games the same first amendment rights as movies, television, and music?
Unquestionably, there were several attempts to distinguish video games. There was an attempt to say they were target to minors and Justice Scalia rejected that. He said there was no history or tradition of protecting minors from depictions of violence. Every now and then that sort of argument rears its head, whether it was comic books, movies, or television but he first amendment doesn’t make a distinction.
He also said that there was an argument that because video games are interactive and require participation that they should get a different level of protection under the first amendment and he said no, that’s not true because any kind of literature tries to draw in the reader and invest them. So any video game cannot be distinguished on that basis. So yes they have the same first amendment protection.
Leland Yee is already looking at different legislation that will be worded differently. Do you think he has any chance of getting that law passed or not?
I don’t see how Justice Scalia's opinion leaves room for that type of law. The only way I could see that type of law would be successful is if they went back and found additional evidence that Scalia didn’t say existed that showed a concrete connection between playing these games and the commission of violent acts by children in the real world.
The only other government interest that they put forward was helping parents protect their children. One of the things I think he said was that the video game industry had done quite well was its rating system that really helped parents, so even the helping parents’ rationale isn’t going to work. Given this opinion, I don’t see how government can revive this law in the future just by re-wording it.
So this is the end of legislation that would ever restrict the sale of video games?
Yes. If someone really wanted to go ahead and enact a law like this in the future they would need to go back to the drawing board and find the evidence. That seemed to be the one glaring flaw is that the government didn’t have any evidence to show that the problem existed.
We'd like to thank Mr. McGreal for taking time to answer our questions as well as Shawn for coordinating the interview.
My name is Paul McGreal. I’m the dean and a professor of law at the University of Dayton Law School and I’ve taught constitutional law and first amendment rights for the last 15 years.
To help frame your viewpoint, do you have any kids and do they play video games?
Yes I do, I have a 12 year old son and we actually play video games together.
Do you monitor what he plays and are you familiar with the ESRB standards?
Yes. As a parent I look at the ratings and I also read about it online before we make a purchase. I consider myself to be an involved parent from that perspective.
The decision from the Supreme Court came down on Monday in favor of the gaming industry. Was that the decision you thought they would reach or were you taken aback by it?
It’s consistent with what I thought they were going to do because the law was too broad. One of the things Justice Scalia pointed out in his opinion was that the same argument the government was using to ban or to punish the sale of violent video games to minors, could equally extend to cartoons, he cited Bugs Bunny, as well as to video games that are rated E for Everybody like Sonic the Hedgehog. So this law was way too broad.
The thing I think was striking was that Justice Scalia seemed to slam the door shut pretty conclusively on any type of law like this for the near future, saying that there was no evidence to uphold the government’s interest in protecting minors from these video games. There’s a lot of work for governments to do in terms of doing studies and looking for a link between playing violent video games and actual violence in the real world by minors. He said there was no proof of that, and there’s a lot the government is going to have to do if it’s going to try and find proof of that.
So would you agree that this decision officially gives video games the same first amendment rights as movies, television, and music?
Unquestionably, there were several attempts to distinguish video games. There was an attempt to say they were target to minors and Justice Scalia rejected that. He said there was no history or tradition of protecting minors from depictions of violence. Every now and then that sort of argument rears its head, whether it was comic books, movies, or television but he first amendment doesn’t make a distinction.
He also said that there was an argument that because video games are interactive and require participation that they should get a different level of protection under the first amendment and he said no, that’s not true because any kind of literature tries to draw in the reader and invest them. So any video game cannot be distinguished on that basis. So yes they have the same first amendment protection.
Leland Yee is already looking at different legislation that will be worded differently. Do you think he has any chance of getting that law passed or not?
I don’t see how Justice Scalia's opinion leaves room for that type of law. The only way I could see that type of law would be successful is if they went back and found additional evidence that Scalia didn’t say existed that showed a concrete connection between playing these games and the commission of violent acts by children in the real world.
The only other government interest that they put forward was helping parents protect their children. One of the things I think he said was that the video game industry had done quite well was its rating system that really helped parents, so even the helping parents’ rationale isn’t going to work. Given this opinion, I don’t see how government can revive this law in the future just by re-wording it.
So this is the end of legislation that would ever restrict the sale of video games?
Yes. If someone really wanted to go ahead and enact a law like this in the future they would need to go back to the drawing board and find the evidence. That seemed to be the one glaring flaw is that the government didn’t have any evidence to show that the problem existed.
We'd like to thank Mr. McGreal for taking time to answer our questions as well as Shawn for coordinating the interview.
About Author
Hi, my name is Charles Husemann and I've been gaming for longer than I care to admit. For me it's always been about competing and a burning off stress. It started off simply enough with Choplifter and Lode Runner on the Apple //e, then it was the curse of Tank and Yars Revenge on the 2600. The addiction subsided somewhat until I went to college where dramatic decreases in my GPA could be traced to the release of X:Com and Doom. I was a Microsoft Xbox MVP from 2009 to 2014. I currently own stock in Microsoft, AMD, and nVidia.
