Freedom of “Cyber-Speech”

Posted November 5th, 2010 at 11:51 am (UTC-4)
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When Is Virtual Speech Not Like Real Speech?

Pop quiz: what do Governor Arnold Schwarzeneggar, Bugs Bunny, and the destruction of the US Capitol have in common?

Arguably nothing except this: they all played a part in oral arguments this week before the US Supreme Court in a case that could have a major implications for the limits of virtual and cyber-speech.

Schwarzenegger vs. Entertainment Merchants Association is the highest court’s test of a California state law that bans the sale or rental of video games that feature “deviant” levels of violence to minors.   Enacted in 2005, the law has never seriously been enforced as lower courts have found the ban violated free-speech rights.

As in other free-speech court cases, the issues discussed weren’t always pleasant, with references on both sides of the bench to graphic depictions of human pain and degradation.

But just what constitutes “deviant” levels of violence, and who should set those bounds?  The Justice’s questions, and the answers they got, after the jump.

The National Law Journal’s Marcia Coyle was there to hear the case and summarizes the issues, and the questioning, here.  As usual, it’s nearly impossible to tell how a justice will rule based on their questioning; Coyle summarizes the arguments this way:

“By the end…several justices appeared sympathetic to California’s effort to prohibit the sale and rental of violent video games to minors.  And others seemed uneasy about creating a First Amendment exception for violence, and exception that could swallow books, movies and other violence-laden forms of expression.

‘Why are video games special?’ asked Justice Ruth Bader Ginsburg.  ‘How do you cut it off?'”

Attorneys for the state of California argued that video games were special exactly because they’re interactive and not passively experienced like a book.  In games like “Postal 2”, “Mortal Kombat” or “Fallout 3”, players maneuver virtual characters through a maze of situations, and are often presented with choices of violent action.

How violent?  Adam Liptak in the New York Times cites the California law’s definition of video games:

“…in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that is “patently offensive,” appeals to minors’ “deviant or morbid interests” and lacks “serious literary, artistic, political or scientific value.”

Court watchers will note the similarities of language there and in existing statutes upheld by the Supreme Court that ban certain types of pornography.  However so far, notes Jess Bravin in the Wall Street Journal:

“Courts have refused to treat violent content as they would sexual material, which government can restrict under longstanding obscenity doctrines.

But in recent years the Supreme Court has been taking a more paternalistic view toward youth. In 2007, the high court approved punishing a high school student for hoisting a banner that allegedly made light of smoking marijuana, finding antidrug policies outweighed student free-speech rights.”

Beyond the actual decision itself, much of the implications for freedom of cyber-speech will depend on how broad or narrow the majority Court writes its ruling.

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What’s Digital Frontiers?

The Internet, mobile phones, tablet computers and other digital devices are transforming our lives in fundamental and often unpredictable ways. “Digital Frontiers” investigates how real world concepts like privacy, identity, security and freedom are evolving in the virtual world.

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