Schwarzenegger Vows to Fight Repeal of Violent Video Game Law

A controversial California state law banning the sale of so-called "violent video games" to citizens under the age of 18, was struck down Monday in US District Court as unconstitutional. Judge Ronald Whyte made this ruling two years after putting a stay on its enactment pending review. Now, Gov. Arnold Schwarzenegger -- who signed the bill into law -- is vowing to appeal the ruling.

The governor's appeal, with all its embedded ironies of a former action movie star speaking out forcefully against wanton depictions of violence, will no doubt launch a new wave of speeches and photo opportunities, followed by excerpts of the alleged violent acts depicted on television and Internet news, giving those games public exposure - including to children - that advertising couldn't possibly purchase.

The law, known mainly by its 2005 bill title AB 1179, cited studies stating youth participation in violent video games results in gamers experiencing "a reduction of activity in the frontal lobes of the brain, and to exhibit violent antisocial or aggressive behavior." But it then went on to define "violent video game" using language that may have been too vague, and too open to legal challenges.

"'Violent video game' means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being," the act's definition began.

It then continued by applying a strange condition to those options: The violent acts would necessarily have to be something a "reasonable person" would assume would be a "deviant or morbid interest" to a young person - in other words, something you or I would expect to be disgusted by if some 12-year-olds walked by us in the grocery store talking about it.

The two other conditions were that the act would have to be of offense to the community as a whole (which assumes that communities who would not be collectively offended by sexual assault could congregate and form a township, thereby providing a legal exception); and that the act would cause the game as a whole to lack artistic merit.

Surprisingly, in his December 2005 preliminary injunction in response to a lawsuit against Gov. Schwarzenegger by the Video Software Dealers Association (now called the Entertainment Merchants Association) and the Entertainment Software Association, Judge Whyte ruled their arguments that the law as written was too vague in its definition, was not the reason for granting the injunction.

The game Postal II, Whyte wrote, "meets both prongs of the definition (though either alone is sufficient). Shooting schoolgirls in the knee and then setting them afire appeals to the deviant interests of minors...Whether something is 'patently offensive" under community standards is a question of fact...but the court can easily imagine that Postal II 'is patently offensive to the standards' of some communities 'as to what is suitable for minors'...The game appears to have no 'literary, artistic, political, or scientific value for minors'...The game thus is a 'violent video game' under the first definition in the Act. Furthermore, shooting schoolgirls in the kneecap is inflicting serious injury, and then setting them afire and urinating on them as they crawl about is especially cruel and depraved (as those terms are defined in the Act) and constitutes torture."

On the other hand, Whyte found, if you're wearing a uniform, then killing seems to be okay. With regard to Full Spectrum Warrior, he wrote, "The player controls two four-man U.S. Army squads fighting in an Afghanistan-like urban environment...The squad members have personalities; they complain about their mission and use profanity when they come under heavy fire. Careful planning is necessary to succeed; much of the game is spent using one squad to distract an enemy while the other squad circles around him to get a good shot. Enemies are usually shot at a distance, and they fall down bloodlessly when shot or killed with grenades."

So it's not really the killing so much as the bodily fluids which offend the sensibility of communities, according to Whyte's interpretation of the act. As a result, he wrote, "The plaintiffs have not shown they are likely to succeed on their claim that the Act is unconstitutionally vague."

What ended up causing the injunction to be granted - and, inevitably, the law to be repealed - was the notion that the State believed it could actually enforce this statute. "The plaintiffs have shown at least that serious questions are raised concerning the States' ability to restrict minors' First Amendment rights in connection with exposure to violent video games," Judge Whyte wrote, "including the question of whether there is a causal connection between access to such games and psychological or other harm to children."

Whyte's repeal on Monday provoked the Entertainment Merchants Association to issue this statement: "It was inevitable that the federal district court would find the California video game restriction law unconstitutional, as eight similar laws around the country have been overturned in the past six years. We informed the legislature that this would be the eventual result when it was considering the law, and it is indeed unfortunate that legislature ignored the prior cases. It is now time for the California legislature to move beyond political grandstanding and accept the video game industry's invitation to work with them to educate the public about video game ratings and encourage parents to utilize those ratings when selecting video games for their families."

Next: Does the EMA have a point?