The Supreme Court Discusses a Minor's Right to Play Mortal Kombat

The Supreme Court this week heard oral arguments in Arnold Schwarzenegger, Governor of California v. Entertainment Merchants Association,a case that contemplates whether video games deserve specific legal treatment that excludes them from protection under the First Amendment.


SCOTUS transcripts of oral arguments are both enjoyable and fascinating to read, and in this case (number 08-1448, to be exact), the discussion has particular relevance to a younger set that has grown to see video games change from simple distractions between homework assignments to becoming a tournament sport and the source of very public discussions on whether the format is an recognizable art form.

In his questioning Zackery Morazzini, the Supervising Deputy Attorney
General for California, Justice Antonin Scalia frames the overall issue:

JUSTICE SCALIA: You are asking us to create a -- a whole new prohibition which the American people never -- never ratified
when they ratified the First Amendment. They knew they were -- you know, obscenity was -- was bad, but -- what's next after violence? Drinking? Smoking? Movies that show smoking can't be shown to children? Does -- will that affect them? Of course, I suppose it will.

But is -- is that -- are -- are we to sit day by day to decide what else will be made an exception from the First Amendment? Why -- why is this particular exception okay, but the other ones that I just suggested are not okay?

Where the discussion becomes difficult to deliberate is in reference to the games themselves. Three games were mentioned by name in Tuesday's discussion: Mortal Kombat, a fighting game that has also been turned into a movie franchise; MadWorld, an over-the-shoulder perspective video game in colored only in black, white, grey, and red; and Postal 2, an open-ended first-person-perspective shooting game, and the most widely discussed at the Court for its extreme violence. (Perhaps not surprising to those in public relations, the publisher of Postal 2, Running With Scissors, has created a page on its Web site to track the progress of the case, with considerable editorializing.)

Debates on the First Amendment are easily discussed in the abstract, but when recorded examples from gameplay in Postal 2 depict the brutalization of women and what appears to be a deliberate nod to the teen-aged perpetrators of real-life murders in public schools, the debate becomes far less abstract.

While avoiding approaching the topic's more nebulous aspects, the Court takes the practical considerations of censorship into consideration, such as when Justice Scalia asks Morazzini how video game developers can avoid prosecution, or if the expectation is to define video game obscenity trial-by-trial.



Also discussed is the effectiveness of the existing but voluntary ratings system for video games, as organized by the Entertainment Software Rating Board, and whether parents having the last word in the purchase of items otherwise unavailable to minors is protection enough from violent content. Chief Justice Roberts takes a particular interest in how the distribution of video games might be parallel, in the state's view, with the sale of cigarettes and other items seen to be as harmful toward minors.

The arguments overall are an excellent opportunity to see the working styles of individual Justices, and in particular its newest members, Justices Sotomayor and Kagan. Both Justices show a familiarity with the medium and good humor about the process (Kagan remarks that half her staff likely grew up playing Mortal Kombat), though nearly every Justice participates in the discussion.

All in all, the oral arguments are a short, timely, and interesting introduction to the deliberations of the Supreme Court about a topic on which surely most college students themselves have an opinion.