High court to rule on video games

WASHINGTON – Supreme Court justices will meet “Resident Evil 4” on Tuesday in a divisive free speech case that’s rated M for mature.

Eleven states, including Florida and Texas, have joined California in urging the court to uphold a law that bans the sale of violent video games to minors younger than 18. These states say that young people need moral and psychological protection.

But in an intriguing political split, eight states – including Washington and South Carolina – want California’s law buried. The interstate conflict foreshadows a provocative debate Tuesday, though the judicial odds seem to favor unfettered video gaming.

“I’d be surprised if the court … upholds the California statute,” said Peter Edelman, a professor at Georgetown University Law Center. “Maybe the court won’t be unanimous, but it would be a major departure if they hold it constitutional.”

The hourlong oral argument Tuesday morning and subsequent court decision will move beyond the $10 billion-a-year video game industry. If the Supreme Court sides with California’s law, the ruling could invite restrictions on books, movies and the Internet in general.

Kibitzers abound, reflecting the case’s high visibility, and most side with the video game industry. Of 32 amicus briefs filed, 28 submitted by the likes of the motion picture industry, the U.S. Chamber of Commerce and the Comic Book Legal Defense Fund oppose California’s law.

“Restricting access to video games would … deprive game developers and those who play their games of a critical instrument for expressing and exercising their creativity,” Theodore Olson, who was the solicitor general during the George W. Bush administration, declared in a brief filed for Microsoft.

Microsoft, among many others, has money as well as principles at stake. The Washington-based corporate giant developed the Xbox and Xbox 360 video game consoles. It also developed big-selling video games, such as Halo, that could feel the chill from the case called Schwarzenegger v. Entertainment Merchants Association.

The plaintiff is California Gov. Arnold Schwarzenegger, who made his Hollywood bones starring in ultra-violent make-believe flicks such as “Conan the Barbarian” and the “Terminator” series. Now, though, he’s the titular defender of the state law that passed in 2005 but has never taken effect.

The law prohibits selling minors games that depict “killing, maiming, dismembering or sexually assaulting an image of a human being” under certain conditions.

The ban would cover games that lack “serious literary, artistic, political or scientific value,” are “patently offensive to prevailing standards” for what minors should see and appeal to a “deviant or morbid interest” of minors.

“You can see the effort to put this into the framework of selling pornography to children,” Edelman noted.

As one example, California’s attorneys cited a game called “Postal 2.”

“In (one) scene, the player hits a woman in the face with a shovel, causing blood to gush from her face,” California’s legal brief recounts. “As she cries out and kneels down, the player hits her twice more with the shovel, this time decapitating her. The player then proceeds to hit the headless corpse several more times, each time propelling the headless corpse through the air while it continues to bleed.”

Supreme Court justices weren’t given copies of “Postal 2,” though the Entertainment Merchants Association provided the court with six games, including “Tom Clancy’s Rainbow Six,” “Full Spectrum Warrior” and “Resident Evil 4.”

In “Resident Evil 4,” players try to save the president’s daughter from enemy hordes that defy belief. Many must die, in various and sundry ways, for the player to win.

“They aren’t zombies,” the hero says, describing his horrid foes. “Then what are they?”

The video game makers want the justices to consider the games in their entirety, so they submitted videotapes of more than 2  1/2 hours of excerpted game play. California, by contrast, provided five-minute excerpts of raw gore. Officials consider it sufficient to demonstrate why parental control is warranted.

“The (law) ensures that parents, who have primary responsibility for the well-being of minors, have an opportunity to involve themselves in deciding what level of video game violence is suitable for a particular minor,” California’s primary legal brief says.

Proponents of the California law cite studies that link video game exposure to, as state officials put it, “an increase in aggressive thoughts and behavior, anti-social behavior and desensitization to violence in both minors and adults.” The social science link to misbehavior, though, is no longer the centerpiece of California’s argument.

Until now, neither the Supreme Court nor lower appellate courts have looked kindly on laws restricting similar speech.

For instance, an appellate court struck down an Indianapolis law that required parental supervision at video arcades in 2001. Last April, by an emphatic 8-1, the Supreme Court struck down a federal statute that penalized videos that depicted animal cruelty.

“Most of what we say to one another lacks ‘religious, political, scientific, educational, journalistic, historical or artistic value,’ let alone serious value,” Chief Justice John Roberts Jr. noted in the animal cruelty case, “but it is still sheltered from government regulation.”


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