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Going "Postal (2)" on the Violent Video Game Industry

Compiled by Natalie Wallace and Herve Comeau


"Violent" video games are the latest stratum of technology to catch the watchful eye of government regulation.  The question of how far First Amendment protections extend for written materials, films, recorded music, and now video games, has created a wealth of social science-rich jurisprudence.  This year, in Schwarzenegger v. EMA, the Supreme Court will decide whether a piece of California legislation ("the Act") permissibly regulates the sale of "violent" video games to minors.  To succeed, the State will have to show that the Act withstands strict scrutiny or, alternatively, reasonably targets a new category of unprotected speech.  Throughout the case’s judicial history, both the courts and the parties focus on the availability, reliability, and applicability of social science evidence in determining the constitutionality of the Act. 

The Act:  CA. Civil §1746

Section 1746 of the Act originally considered a video game "violent" if it satisfied either prong of a two-part test.  (cite).  Due to strong judicial assertions that the second prong is unconstitutionally vague, see, e.g., 2007 WL 2261546 at 10, the State (and this article) focuses on the first prong.  Assuming that the prongs are severable, the pertinent wording becomes: "[Any] 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, if those acts are depicted in the game in a manner that. . . [c]omes within all of the following descriptions: [1] a reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.  (2) It is patently offensive to prevailing standards in the community as to what is suitable for minors.  (3) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors."  §1746; see also 556 F.3d, 957 n. 10.

Additionally, the State has limited its legislative interest to the protection of minors from "psychological or neurological harm" from playing violent video games.  The State abandoned its previously submitted interest in reducing aggressive behavior.  Since the foci of the State’s submitted social science evidence were determined prior to this strategic legal decision, some of the studies may now be incongruous.    

The District Court grants Plaintiffs’ Motion for Summary Judgment

The District Court identifies the legal question as whether or not the Act targets non-protected speech.  2007 WL 2261546 at 4.  The persistent focus of inquiry throughout the litigation is first hinted at through the district court’s word choice: "If exposing minors to depictions of violence in video games makes them experience feelings of aggression. . . the state could have a compelling interest in restricting minors’ access to such material."  Id. at 6 (emphasis added).

Dr. Craig Anderson’s social science studies receive the majority of the opinion’s attention.  The court first introduces Dr. Anderson by reference to the criticisms it has endured in other jurisdictions.  Id. at 6 – 8, 11.  The court then generally holds the entire pool of presented evidence unsatisfactory because of its failure to differentiate between the effects on minors of different ages.  Id. at 10.  Given that eighteen-year-olds "can vote and fight in a war, a showing needs to be made that an individual nearing the age of majority needs to be shielded from uncensored speech to the same extent as an early adolescent."  Id. at 10.

Despite coming to similar legal conclusions as the other courts that reviewed this social science evidence, the court summarizes its response as less "skeptical".  Id. at 11.  Nonetheless, the Court finds the lack of studies singling out violent video games from other media, along with the absence of age-stratified data, to be decisive shortcomings in the social science evidence.  Ibid.

Appellate Court affirms District Court’s summary judgment

Early in the appellate decision, the court classifies the majority of the submitted State evidence, upon which the Legislature is presumed to have based its regulation, as social science studies, "roughly half" of which list Dr. Craig Anderson as an author.  556 F.3d, 955.  This entire body of work is later deemed insufficient by the court.  Id. at 963–965.  Generally, rather than make its own critiques of the studies, the court focuses on the shortcomings admitted by the authors themselves, such as the lack of longitudinal studies and small sample sizes.  Id.  Where the court does make an independent critique it makes a questionable inference.  The court focuses on the failure of the studies to stratify by age in order to show that violent video games harm minors more than they do adults.  Id.  However, the court is arguably misconstruing the relation of this methodological shortcoming to the related legal question, since the legislature does not need to show that minors are harmed the most in order to show a legitimate state interest in protecting minors at all. 

The 9th Circuit also focuses heavily on the lack of causality evident in the studies.  In its most exaggerated example of the importance of causality, it dismisses Dr. Jeanne Funk’s study in two brief sentences stating the study was strictly correlative.  Id., 964.  The State defends the paucity of causal evidence in the record by further analogy to sex-based obscenity law, asserting that "the Supreme Court has never required any empirical proof of harm when children are involved."  Brief for 9th Cir. at 4.  The 9th Circuit examines this argument in more detail than the district court did, but dismisses it eventually.  556 F.3d, 960–61.  While the Supreme Court’s answer to this question specifically regarding video games is still undetermined, there is an unblemished consensus across the lower courts that obscenity is, and will continue to be, limited to sexually explicit material.  See Id.

However, if this analogy to obscenity law manages to gain traction in the Supreme Court, it would open up room for serious criticisms of the 9th Circuit’s review of the social science evidence.  Because this standard is less stringent than strict scrutiny, social science evidence showing correlations, absent causality, may be sufficient to support a reasonable legislative determination.  The 9th Circuit, however, after explicitly refusing to transpose the obscenity rational basis standard, summarily disregards any social science evidence lacking conclusions of causality.  Id.  If the Supreme Court deems correlative evidence sufficient -- or, for that matter, even mildly probative -- the 9th Circuit’s cursory and dismissive treatment of the bulk of the studies would be highly susceptible to criticism.
Supreme Court grants certiorari and hears oral arguments

A persistent line of questioning related to The Supreme Court’s emphasis on line drawing between different types of violent media could be interpreted as a methodological query apart from any bearing on the permissible scope of legislative action.  The State’s 9th Circuit brief addresses solely its legislature’s prerogative "to deal with one medium at a time as it realizes potential harm," allowing it to regulate only video games regardless of the possible harm attendant to other forms, such as films.  However, methodologically, if the Court is meant to focus only on the permissibility of regulating violent video games, empirical studies evaluating exposure to undifferentiated media would be misleading.  The harm shown could be a result of any combination of exposure to the various media, including, hypothetically, no exposure to violent video games at all.

The Social Science Behind Violent Video Games and Aggressive behavior

Four studies have researched the correlation between video games and real world violent responses. These studies focused on children from grade four to twelve, and measured aggression aimed at teachers, classmates, and self-directed violence. ( Dominick, 1984; Fling et al., 1992; Lin & Lepper, 1987; Van Schie & Wiegman, 1997) The oldest studies, with the least graphic violent video games found a statistically positive correlation between playing video and real world aggressive behavior; the fourth, most recent study, found no correlation that differed from zero. However none of these correlational studies differentiated between games that are expressly violent, that is games that contain violent images, and games based on purely puzzle solving. So none of these early studies spoke directly to the issue at hand, but were ultimately included in the Meta analysis provided by Dr. Anderson to the court.

The experimental studies conducted prior to those conducted by Dr. Anderson are also open to obvious criticism. These experimental studies found support for the increase of violent video games on aggressive behavior. (Cooper & Mackie, 1986; Irwin & Gross, 1995; Schutte, Malouff, Post-Gorden, & Rodasta, 1988; Silvern & Williamson, 1987). These studies didn’t control for excitement, difficulty, or competitive aggression increases. And though the Anderson study also openly criticized these studies they were included in the Meta analysis. Of the studies that did control for those variables neither found an effect of violent video games on aggression. (Graybill, Strawniak, Hunter, & O'Leary, 1987; Winkel, Novak, & Hopson, 1987). These studies however measured an immediate reaction to violent video games and not the long term effect of these games.

In order to take steps to remedy the dearth in existing research Dr. Anderson conducted two studies on violent video games and aggression, one correlational, and the other experimental. Though this was a positive step, the existing research still lacks longitudinal research; though the correlational study attempted to use self-reporting via questionnaire to determine how much time particpants had previously spent playing video games.

Anderson Correlational Study:

"In Study 1, we measured both the amount of exposure to video game violence and the amount of time participants had played video games in prior time periods regardless of content. These video game measures and several individual difference measures were used as predictors of self-reported aggressive behavior and delinquency. We used a college student population, in part because they are old enough for long-term effects of playing violent video games to have had a measurable impact on real-world aggression. Study 1 also included a measure of academic achievement (grade point average [GPA]), mainly because prior longitudinal work on media violence effects on children has demonstrated a negative relation between exposure to violent media and later academic performance (e.g., Huesmann, 1986; Huesmann & Miller, 1994)."

Anderson Experimental Study:

"In Study 2 we randomly assigned participants to play either a violent or a nonviolent video game; the two games were matched (by means of pretesting) on several key dimensions. Subsequently, these participants played a competitive reaction time game in which they could punish their opponent by delivering a noxious blast of white noise. This constituted our laboratory measure of aggression. We also assessed the effects of the video games on both hostile thoughts and hostile feelings to see whether either (or both) served as mediators of the violent video game effect on aggressive behavior."
The correlational model was used to determine the relationship with long term violent video game expose and a multitude of variables; including aggressive behavior, academic achievement, and delinquent world view. All of these, with the exception of grades which were requested from the university registrar, were self-reported through questionnaires. A pilot study was conducted in the Anderson study that attempted to control for the differences between nonviolent and violent games given other dimensions, such as their frustration level, arousal, and overall enjoyment. Through the Pilot study two games were chosen; Wolfenstein 3d which is a first person shooting game in which the player is in a Nazi compound and can choose from a wide array of weaponry to kill Nazi’s, and Myst/Tetrix which are award winning interactive games purposefully designed to be a nonviolent gaming option. While the nonviolent options focuses on puzzle solving, Wolfenstein allows players to commit acts that induce screaming and moaning in their victims.

The subjects were made to believe that the experimenters were testing hand eye coordination and skill development. After playing the games subjects were asked to answer a questionnaire and for the experimental study, subjects were given the option of subjecting an opponent in another room to a bull horn whose volume could be controlled by the subject. The research demonstrated that in both the correlational study using self-reports of aggressive behaviors and the experimental investigation violent video game play was positively correlated to increases in aggressive behavior. The subjects in the experimental study who played violent video games demonstrated more aggressive behavior toward their opponents then did those who played nonviolent video games. And the results of the correlational study indicated that those who reported playing more violent games also self-reported more aggressive behavior in their own lives. Anderson concluded that "the convergence of findings across such disparate methods lends considerable strength to the main hypothesis that exposure to violent video games can increase aggressive behavior."(Anderson study) Because of the lack of longitudinal studies, and the excess of studies with less the credible methods Anderson conceded that these two studies only add some support to empirical and theoretical work that needs more time to develop, but that more can be said when combined with what is known about the effects of violent media. (e.g., Eron et al., 1987; Huesmann & Miller, 1994).


            The Schwarzenegger litigation offers a clear example of the place social science has come to hold in certain judicial determinations.  At no point is the pertinence of social science evidence questioned.  In this scenario, where the reasonableness of legislative action is being judged as a matter of law, the validity of the underlying social science studies seems almost dispositive.

Notes and Further Reading:

The District Court summarizes the applicable strict scrutiny test as requiring that the Act "promote a compelling [state] interest," adopt the "least restrictive means. . . to further the articulated interest."  Id. at 4 (citing Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126) (internal quotation marks omitted).

Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572 (7th Cir. 2001).  [Judge Posner]
Interactive Digital Software Ass’n v. St. Louis County, 329 F.3d 954 (8th Cir. 2003).
Entertainment Software Ass’n v. Blagojevich, 404 F.Supp.2d 1051 (E.D. Ill. 2005).  [Source of submitted Anderson testimony?]
2005 Cal. Legis. Serv. Ch. 638 (A.B. 1179) (West) §1.  (The California Legislature’s findings in justification of the Act.)
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