By Mike Dorf
On Monday, the Supreme Court granted cert in Schwarzenegger v. Entertainment Merchants Ass'n (EMA). The case involves a California law restricting the sales to minors of certain violent video games . The Ninth Circuit struck the law down, declining, as other circuits had declined, to extend Supreme Court precedents permitting the government to restrict children's access to some erotic-but-not-obscene-for-adults materials to cover violence. The Supreme Court had apparently been holding the case pending its resolution of Stevens (the animal cruelty depictions case). Had the Court in Stevens accepted the argument that depictions of animal cruelty are sufficiently similar to child pornography to warrant a categorical exception, then it might have "GVR'd" (granted cert, vacated, and remanded) the EMA case for reconsideration. The Ninth Circuit said in EMA that it would not create a new categorical exception for "speech as to minors," thus reading Ginsberg v New York narrowly. But since the Supreme Court in Stevens treated the Ferber case in more or less the same way as the Ninth Circuit in EMA treated the Ginsberg case, there was no occasion for a GVR.
That has led to considerable speculation about why the Court granted full review in EMA rather than simply denying review. (For a roundup of the speculation, follow the links here.) In this post I want to focus a bit on an issue that surely is not at the heart of the Court's thinking, because it is not raised by the cert petition. Still, the underlying law raises the following question : How should the line between speech and conduct be drawn in the virtual world?
Suppose the government wants to forbid minors from possessing toy guns, by which I mean corporeal toy guns. Such a law may or may not be a good idea; it may be easy to evade by children using pencils or even fingers as mock guns; but I do not see that it can fairly be characterized as a regulation of expression at all. Someone might say it depends on the reason the govt wants to forbid toy gun possession. If the concern is that the toy guns will be mistaken by police officers and others for real guns, leading to actual bloodshed, then that would be fine, but if the concern is that imaginative play with toy guns teaches children to like violence, a possible objection might go, that's the government targeting a kind of speech-based harm, which is impermissible. But this someone would be mistaken, because the law would be targeting the sale of objects rather than expression of any sort.
Now suppose a thus-far fictional technology in which virtual reality games are super-realistic: Players entering the virtual world have all of the experiences of their avatars. Perhaps they plug into sockets in the backs of their brains, as in The Matrix, or perhaps the next version of the Wii is WAY more realistic than the current version. Anyway, suppose further that children no less than adults play in the super-realistic virtual world. And suppose finally that the government bans programming the virtual world to simulate the killing of virtual police officers by minors. The ban would be justified on the ground that children who engage in extraordinarily realistic play-killing police officers may develop a taste for doing similar things either now or when they grow up back in the real world. Whether or not that prediction would prove true, it strikes me that the ban is not a regulation of speech.
Today's video games are, of course, not nearly that realistic. In many ways they are more similar to movies than to a true virtual reality. And it's clear that under the First Amendment the government can't simply ban a movie that includes violence. Restricting minors' access to such movies at least RAISES a First Amendment issue in a way that, I'm claiming, banning violence by minors via their hyper-realistic avatars may not.
Nonetheless, I think a plausible argument could be made that the likes of Grand Theft Auto (GTA) ought not to be conceptualized as speech at all. What seems to give contemporary video games prima facie free speech protection is the fact that they create a virtual reality via pictures and words on a screen--the same medium used to transmit indubitably expressive material such as movies, pictures and texts. But that may just show that current video games are lousy versions of the Matrix-like super-realistic virtual reality. Surely if the makers of GTA could put players in a much more realistic world, they would. And if I'm right that forbidding minors from super-realistically killing super-realistic virtual cops would not raise free speech issues, then it's hard to see why forbidding minors from killing unrealistic virtual cops would.
The difficulty, as I see it, is that there is no clear line between speech and conduct in this context. Even books--undoubtedly speech--can be understood as an effort by their authors to create virtual worlds, albeit in the imagination of their readers. Yet that hardly robs them of their protection as speech. Nor can we simply rely on an active/passive distinction to conclude that actions in the virtual world are regulable in a way that passively absorbed words and images are not. Surely a Choose Your Own Adventure book is prima facie protected speech, notwithstanding the reader's participation in the story.
At the other end of the spectrum, I continue to think that a law banning toy guns (whether wise or not) is simply not a law abridging speech for much the same sort of reason that I would distinguish between a law banning certain sex toys (which does not limit speech) from a law banning pornography (which does limit speech). Sex toys may be constitutionally protected under Lawrence v. Texas (a position adopted by the 5th Circuit but rejected by the 11th Circuit), but that's not as a matter of freedom of speech. Thus, another way to think about the EMA case might be to ask yourself this question: Could a law forbidding the sale of software permitting minors to have sex with virtual prostitutes in a Matrix-like version of GTA plausibly be challenged as infringing freedom of speech, even apart from its categorization as obscenity or obscene with respect to minors? The answer, I think, is pretty plainly no. And that's because we would see the law as targeting an act--sex with a prostitute--rather than any message about the propriety of sex with prostitutes, not to mention killing virtual prostitutes after having sex with them, for which participants in GTA apparently earn extra points. (Amazing.)
Unfortunately, California appears not to have preserved the argument that its law simply doesn't target expression at all, so we won't get to see the Nine wrestling with this conundrum.