Schwarzenegger v. Entertainment Merchants Association and the History of Obscenity
Restricting Access to Violent Video Games
The Supreme Court is currently deliberating in the case of Schwarzenegger v. Entertainment Merchants Assn.. At stake in the deliberations is the constitutionality of California's Assembly Bill No. 1179 [PDF], the stated purpose of which is to "require violent video games to be labeled as specified" and to "prohibit the sale or rental of those violent video games, as defined, to minors."
My interest in the case stems from the way in which the California law is modeled on the "Miller Test" for obscenity, arguing for an analogy between violent video games and pornography.
"Sex and violence have both been around a long time."—Justice Kennedy
In oral arguments, Zackery Morazzini, California Supervising Attorney General, was unwilling to specifically name what games would fall under this law, with the exception of Postal 2. MadWorld was also suggested as a candidate, though Morazzini was less certain of this particular game. (In response to a question from Elena Kagan about Mortal Kombat, Morazzini suggested that it might be covered by the law, but that it would be up to a jury to determine whether it was "violent" under the terms of the law).
In restricting the sale of such games, the law comes up in a rather obvious way again first-amendment protections of free speech. In an interesting moment, Kagan challenged the transparency of a video game as speech; she asked Paul Smith, cousel for the Entertainment Merchants Association, "do you think all video games are speech in the first instance? Because you could look at these games and say they're the modern-day equivalent of Monopoly sets. They are games. They are things that people use to compete" (transcript p. 38; this avenue led to an odd dead-end about narrative, plot, and aesthetic value, in which Antonin Scalia asked incredulously whether anything with a plot necessarily had aesthetic value, see transcript pg. 56). But, of late, the court has been pretty liberal in its contrual of what constitutes "speech."
Carving a First Amendment Exception: Obscenity and the Miller Test
So, if you are trying to carve an exception to the first amendment, how do you do it? Well, there are "fighting words" exceptions for speech/writing which represents a direct incitement to violence. During the oral argument Justice Breyer mentions fighting words exceptions, but Justice Ginsburg, in questiong Morazinni, notes: "you didn't latch on to fighting words. Your analogy is to obscenity for teenagers, as I understand it" (transcript p. 18). And, indeed, it is by analogy to obscenity, not the immediate harm of "fighting words," that the California law tries to restrict the access of minors to video games.
It makes sense that California would use obscenity as a model for their ban on video games. Obscene speech, however difficult it may be to determine precisely what is obscene, is the largest category of material which clearly and unambiguously falls outside of first amendment protection. Ginsberg v. New York establishes a more nuanced exception, allowing access of minors to materials which may not be obscene in the strict sense to be limited: think Playboy, which is not obscene but which may be considered obscene for a certain audience of minors.
The key test for obscenity in current law is the so-called "Miller Test" (itself evolved out of a series of such tests in Anglo-American law, beginning with the 1868 establishment of the "Hicklin Test"). The Miller Test defines a work as obscene if and only if it meets the following three criteria:
- taken as a whole (here is a key departure from Hicklin), the work tends to appeal to the "prurient interest."
- it depicts, in a patently offensive way, sexual material.
- the work lacks scientific, literary, artistic, or political value (the "SLAP" test; an unfortunate acronym, all things considered)
Determining what, exactly is offensive, what appeals to prurient interest, and what has value, requires imagining the judgment of the "average person" (first invoked by Judge Woolsey as "l'homme moyen sensuel" in the 1933 Ulysses decision) and "community standards.
Violence and the Miller Test
So in trying to restrict access to violent video games without violating the first amendment, the California law revises the Miller Test to apply to violent material. A "violent video game" according to the definition offered in the statute must meet these three criteria (here quoted directly, with bold and italic emphasis added):
- A reasonable person, considering the game as a whole, would find it appeals to a deviant or morbid interest of minors.
- It is patently offensive to prevailing standards in the community as to what is suitable to minors.
- It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.
All that stuff in bold restricts the law's applicability to minors exclusively (and thus, I take it, represents an attempt to bring the law within the more restricted ambit of Ginsberg v. New York). But the test itself, as the italicized phrases make clear, is pretty clearly modeled on the Miller test. It brings the test under the supervision of reasonable person who considers the game as a whole from the perspective of contemporary standards. And it preserves the escape-hatch for materials of "serious . . . value."
It substitutes "a deviant or morbid interest" in violence, for a "prurient interest" in sexuality. And, unsurprisingly, determining precisely what constitutes such an interest (or its deviance and morbidity lies) is no easy task.
Not Texts, but What we Do with Texts (or what they do to us)
When Justice Potter Stewart claimed that, despite his inability to define hard-core pornography, he knew it when he saw it, he was on to something. Obscenity laws seek to identify a certain, prohibitable class of texts; but their motivation for doing so is to regulate what people do with those texts. One of the "innovations" of the Hicklin test in 1868 was to eliminate the intention of an author in a work from a consideration of whether the work was obscene. In so doing, Hicklin established a tradition of trying to imagine the effects of an experience of a text on its consumer.
The notorious difficulty of definitions and determinations of obscenity stems from the fact that the law tries to manage certain types of aesthetic experience (broadly conceived here on the model of "relating to the senses") by controlling the circulation of certain types of text. There is, however, no one-to-one relationship between texts and the affects they provoke or the uses to which they are put. George Costanza's involvement with an issue of Glamour magazine (in a quite infamous episode of Seinfeld) demonstrates the point; as do the arguments in the early twentieth century about whether a postcard reproduction of a classical nude could be obscene (the, I think savy and thoughtful, answer of vice crusader John Sumner: yes).
And certain kinds of affects are attached to certain types of people. Throughout the late nineteenth and early twentieth century, discussions of obscenity were often obsessed with protecting young women. The Hicklin Test prohibited matter that "depraves and corrupts those whose minds are open to such influence"; the minds most susceptible were those of children and, especially, young women. The prosecution (or one prosecution) of Ulysses was initiated after a copy of the "Nausicaa" episode (contained in the Little Review) fell into the hands a lawyer's daughter (see Rachel Potter, "'Can my daughter of 18 read this book?' Ulysses and Obscenity," Critical Quarterly 46:4, Dec. 2004 ).
the adolescent male is emerging as the object of greatest cultural anxiety
In revising the Miller Test, California's law preserves many of its key ideas. But its object is very different. It does not simply shift the scope of the Miller Test from obscene, sexually explicit, prurient material to (deviant and morbid) violent material. It also shifts, implicitly but no less certainly, the audience it seeks to protect. Admittedly, since the 1970s the concern of obscenity law (insomuch as it has been enforced) has been with video material and particularly the relationship between hard-core pornography and sexual violence. But with California's repurposing of the Miller Test, the object of greatest cultural anxiety shifts from the young women, whose virtue is imperiled by reading, to the teenage males who, in basements across America, are being transformed into violent sociopaths.
It seems very likely that the Supreme Court will affirm the lower court's ruling that the law violates the first amendment. As Scalia and Sotomayor both noted, however difficult it has been adjudicate, the tradition of treating sexual material as obscene is long and well established. It seems very difficult to slip "violence" in under existing law, however much of the California statute's language is borrowed from the Miller Test. The fears which motivate this law are unsupported by any clear, unambiguous empirical evidence. But it is an interesting moment in the history of media and culture when a law designed for one set of material, within the technological horizon of one period, is repurposed and changes the gender of its chief object of concern.