The Supreme Court struck down the California statute challenged in Brown v. EMA, upholding the lower court decision. The opinion is here. In my opinion, this is the right decision, based on our First Amendment doctrine. More comments after I read it closely, but feel free to start the discussion in the comments below.
Update: So not very much surprising about the analysis here. I think Scalia, writing for the majority, gets the doctrine quite right. You can't just add videogame violence as a new carve-out from the realm of protected speech. Scalia also writes at length echoing EMA's main point: that there is a history of legislative reaction against new forms of media and videogames are just the latest target. Some other nice bits in there as well, e.g. a list of some horrors from children's literature.
Alito (joined by Roberts) disagrees with Scalia not so much based on the rationale for the ruling, but based on his conviction that videogames are a truly unique genre with different properties and therefore deserving of different regulatory policies. What I found most entertaining was the footnotes in Alito's concurrence (People? Popular Mechanics? Engadget?) -- this is what Justice Alito is reading to understand the nature of video games? Hmm.
Justice Thomas has a pretty remarkable (for the lack of a better word) dissent based upon the law, culture, and political philosophy surrounding the parent-child relationship during our agrarian society of two centuries ago. Honestly, unless you're an originalist, it's probably TL;DR stuff.
And Breyer dissents based on the social science data demonstrating connections between videogames and violence -- including studies which are rather harshly denounced by Scalia. It's sort of interesting that Breyer is the only one paying much attention to the science. Beyond that, I may be wrong, but I get the feeling that Justice Breyer, unlike Justice Kagan, isn't too familiar with the videogame genre.
On a procedural note, I'm now considerably less confused about the Supreme Court's motives for granting cert when the lower court's ruling seemed obviously correct and deserving of affirmance. I'm guessing that Thomas and Breyer thought differently and Roberts and Alito at least wanted to consider the arguments. Scalia probably voted to take it too, though I'm guessing he saw it as pretty analogous to Ashcroft v. Free Speech Coalition from the get-go.
I'm reading the opinion now and looking forward to joining in on the discussion with everybody. I wrote a thesis on this case and the censorship of electronic games and other new media. If this is a topic you're interested in (and you just didn't get enough after the 92 page court decision) you can see my thesis on SSRN at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1868759
Posted by: Tommy Rousse | Jun 27, 2011 at 12:29
With regard to research: I've been pleasantly surprised as I read Grand Theft Childhood, which pores over all the different kinds of research and deconstructs how it was done, as well as conducting some research of their own.
Posted by: eric:p | Jun 27, 2011 at 14:10
Made a slight edit to delete my concern about Alito's cite to Tom Chatfield -- thanks to Ren for calling me on that. I'm really not familiar enough with "Fun, Inc" to say much about it, and I'm sure Chatfield is a smart and nice guy. What I was thinking was just this: there's over a decade of work on game studies that Alito could have looked at in support of his argument that video games are different in quality than ordinary texts. Before Chatfield's book came out last year, I hadn't seen him taking part in those conversations... but as to the book itself, Ren assures me that it's good.
Posted by: greglas | Jun 28, 2011 at 17:41
I think the rejection of science ("science") is really important. Media effects research is just not persuasive. It's sad, really - for decades, people have built entire careers on small-scale experiments with undergrads. The results are not persuasive. But what are the other options for social scientists?
Pure theory, whether mathematical or word-based, is a dead end. No natural scientist would suggest that his entire field should do what Economics and Critical Theory have done, spending all their time speculating. No one (outside the field) pays attention to that stuff, and as for the argument that knowledge is built up bit by bit, well, after 30 years of watching I am still waiting to see even a small mound of progress come from these methods. So pure theory is out too.
OK, so, we have to have empirical studies. But doing little experiments in labs with undergrads gets us nowhere. What's left?
There are the large-data-set studies of empirical social scientists in political science, econ, and sociology. Unfortunately, very little has been learned from them either. It's too easy to torture the data to get a * of statistical significance. Causal effects can't be identified. Theories of even moderate complexity are almost impossible to verify.
I guess people are trying machine learning. And there's always the possibility of large-scale experiments. Game companies are doing them right now.
Posted by: ecastronova | Jun 29, 2011 at 10:11
Though this is not the topic of the post, I disagree that economics is a pure theory field. Theories without evidence constantly fall into disfavor in my field, while those that predict the observable outcomes stand the test of time. Speaking from personal experience, I spend far more time collecting and working with data than I do reading about theory. Without theory, though, I could not construct a model or interpret my results. This seems to me the fatal flaw of behavioral economics, which has reported all kinds of interesting facts with no obvious unifying theory.
This blog's authors have done a remarkable job of poking holes in the results of media effects experiments precisely by showing that the underlying theory is flawed, or that the empirical results have alternative interpretations that are worthy of consideration. However, the least convincing of these arguments has been that "all the subjects are undergrads". Useful empirical results arise from judicious use of undergraduate subjects all the time. But media studies practitioners' failure to apply good theory, or to realize a controlled test of that theory, or to even know what a statistical test means, is the real source of our mutual skepticism of their conclusions.
Posted by: Isaac Knowles | Jun 29, 2011 at 18:00
It's kind of you to remove my name from the brackets of shame (thanks, Ren!) - and perhaps unnecessary - in that I was very much a follower rather than a participant in these conversations before my book, which in any case was an avowedly populist treatment rather than an original piece of research.
While I'm flattered to have become, literally, a footnote in digital history, I don't think I would cited myself in the same position - I'd have been more likely to turn to this blog, in fact, and to the papers and people you've been linking to and debating here for some time...
Posted by: Tom Chatfield | Jun 30, 2011 at 13:50
Smart, nice, and incredibly gracious as well. Apologies for those brackets before -- you are certainly a participant!
Posted by: greglas | Jul 01, 2011 at 10:14
http://www.callitlikeiseeit.com/?p=675
for Call It Like I See It coverage of Brown vs EMA
Posted by: Call It Like I See It | Jul 06, 2011 at 01:01