美国最高法院和电子游戏 编辑本段回目录
美国加州立法禁制暴力电子游戏,商家控告法例违反言论自由,诉讼得直,政府上诉到最高法院.控辩双方分别提供喋血街头2(Postal 2),彩虹六号(Rainbow Six),生化危机(Resident Evil)等电子游戏录像作为证供.九位年逾半百,或己届耄耋的老人家,得接触,裁决他们他们不熟悉的东西.
最高法院检视加州对暴力电子游戏的禁制
The state of California has instituted a law that bans the sale of violent videogames to minors, the U.S. Supreme Court will determine if the ban is legal.
加州制定法律禁止向未成年人销售暴力电子游戏.美国最高法院将裁定禁制是否合法.
Banning the sale or rent of violent videogames to minors was the intent of a state law signed by the Governor of California, Arnold Schwarznegger, in October 2005. The ban of violent videogames was slated to take effect in January of 2006, but the law was challenged almost immediately after the governor signed it. And the law has not been enforced.
2005年10月,加州州长阿诺·舒华辛力加(Arnold Schwarzenegger)签署州法,目的是禁止出售或租借暴力电玩游戏予未成年人.禁令本来预定於2006年1月生效.但法律经州长签署後几乎立即受到挑战1,从未实行.
1:代表美加多间游戏,电影公司,零售店的商会(当时叫Video Software Dealers Association,现在叫Entertainment Merchants Association)兴讼.2007年,联邦地方法官判法律违宪(第一修正案),商会胜诉.加州不服,上诉法院维持原判,加州上诉到最高法院,加州政府一方以州长为代表,是为Schwarzenegger v. Entertainment Merchants Association.
On April 26, 2010 the Supreme Court of the United States consented to hear challenges to the constitutionality of the law that banned the sale of violent videogames to children. The law was overturned by the 9th U.S. Circuit Court of Appeals in San Francisco in 2009, but the Supreme Court has agreed to review the case and make a final decision regarding the ban.
2010年4月26日,美国最高法院受理听审禁止向儿童售卖暴力电子游戏的法律是否合宪.2009年位於三藩市(San Francisco)的第九巡回上诉法院2已推翻此法,但最高法院同意复检此案并对禁令作最终判决.
2:第九巡回上诉法院负责西岸11州上诉案件,包括加州.
Freedom of Speech in Videogame Creation
电子游戏创作的表达自由
In the meantime, although the ban was signed into law and scheduled to take effect in January 2006, the law has never been enforced in California. Opponents of the law argue that the law violates the videogame maker’s right to free speech.
其时尽管禁令已经签署成为法律,并计划在2006年1月生效,但从未在加州实施.反对者批评法律损害电子游戏制作者的表达自由.
Bill Mears in the CNN.com article “High Court Accepts Case over Violent Videogames” explains that “the gaming industry sued in federal court and won an injunction halting enforcement of the law until the courts sort out the constitutional questions.” He adds that the court is trying to determine “how far constitutional protections of free speech and expression, as well as due process, can be applied to youngsters.”
CNN.com的比尔·米尔斯(Bill Mears)在《最高法院受理有关暴力电子游戏案件》一文中,解释「游戏产业在联邦法院兴讼,并赢得禁制令阻止法律施行,直到最高法院厘清是否合宪的疑问.」他补充,最高法院尝试裁定「宪法对言论和表达自由保障范围」,还有正当法律程序3是否适用於青少年.
3:正当法律程序(Due process),表示法律必须尊重任何人权利,不能未经正当程序,伤害任何人权利.
Linking Bad Behavior to Videogames
电子游戏与有害行为的关系
In the Associated Press article “Free Speech Versus Kids and Violent Videogames,”Jesse Holland reports that “California lawmakers approved the law, in part, by relying on several studies suggesting violent games can be linked to aggression, anti-social behavior and desensitization to violence in children.”
在美联社《表达自由 vs 儿童和暴力》一文中,杰西·贺兰(Jesse Holland),指出「加州立法者批准法律,部分得力於数份研究支持,暴力游戏与儿童的侵略,反社会行为,不警惕暴力有关系.」
But judges in the 9th U.S. Circuit of Appeals dismissed the studies that showed a link between aggression in children and violent videogames. The judges didn’t believe that the link established in the studies was conclusive.
但第九巡回上诉法院的法官不接纳研究表示暴力电子游戏与儿童好勇斗狠之间关联.法官不相信研究确立两者间关系是证据确凿的定论.
Iowa State Study of 2010 Links Violent Videogames to Aggression
2010年爱荷华州研究暴力电子游戏与欺凌行为间关联
However, a study conducted by Craig Anderson was published in the Psychological Bulletin’s March 2010 issue. The publication is considered a reliable information source as it is an American Psychological Association journal. The magazine NewsRx Health & Science printed an article with the explanatory title “Iowa State University; Study Proves Conclusively that Violent Video Game Play Makes More Aggressive Kids.”
然而克雷格·安德森(Craig Anderson)的一项研究刊登於《心理学简报/Psychological Bulletin》2010年三月号.它是美国心理学协会刊物,资料来源经过可靠审核.《健康与科学新知/NewsRx Health & Science》杂志刊登的文章标题提纲挈领,《爱荷华州立大学研究确切证明暴力电子游戏导致更多具侵略性儿童》.
The article include quotes from Craig Anderson, the head of the Iowa State study, who states “…regardless of research method -- that is experimental, correlational, or longitudinal - and regardless of the cultures tested in this study [East and West], you get the same effects….And the effects are that exposure to violent video games increases the likelihood of aggressive behavior in both short-term and long-term contexts..."
文中引述爱荷华州立大学研究主管克雷格·安德森言道:「无论任何研究方法 - 实验上,关联上,或直观上 - 也无论研究受(东西方)众文化的考验,你会得到相同结果...结果显示无论在长期与短期环境,暴力电子游戏皆提高儿童侵略行为...」
Violent Videogame Defined
界定暴力电子游戏
How do researchers who conduct the studies determine which games are violent? Tor Thorsen in the GameSpot article “Schwarzenegger Signs Game-Restriction Bill” quotes the legal summary of the legislation establishing the ban and explains that a “violent” game is a "game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being."
进行研究的学者怎样判断哪些游戏属暴力?汤·托尔森(Tor Thorsen)在游戏场(GameSpot)的文章《舒华辛力加签署限制游戏草案》中,引述确立禁令的法律摘要,并解释「暴力」游戏是「游戏可供玩家一系列选项,包括杀戮,致残,肢解,或性侵犯人类影像」.
Opponents of the California law point out that the Entertainment Ratings and Software Board (ESRB) already assign ratings to videogames, so banning the sale of violent videogames to those 18 and younger is unnecessary. But Jesse Holland reports that “supporters of the law say the same legal justification for banning minors from accessing pornography can be applied to violent video games.”
反对加州法律的人指娱乐软件评级委员会(Entertainment Software Rating Board/ESRB)已经为电子游戏分级,毋须限制销售暴力电子游戏予18岁或以下青少年.但杰西·贺兰报道「法律支持者说禁止青少年接触色情有同样法理依据,适用於暴力电子游戏.」
Different Studies of Videogames Give Different Results
不同的电子游戏研究有不同结论
Supporters of the ban also insist that the studies that link aggression to violent videogames are valid and conclusive. Rowell Huesmann in the March 2010 issue of Psychological Bulletin summarized the debate in the article “Nailing the Coffin Shut on Doubts that Violent Video Games Stimulate Aggression: Comment on Anderson et al.”
支持者又坚持将侵略行为和暴力电子游戏相提并论的研究有效且毋庸置疑.罗威尔·修斯曼(Rowell Huesmann)在《心理学简报》2010年三月号撰文《为暴力电子游戏促使侵略行为的怀疑钉上棺材:修斯曼等人评论》.
Huesmann says the results of the Anderson's study probably will not “change the critics’ views or the public’s perception that the issue is undecided because some studies have yielded null effects, because many people are concerned that the implications of the research threaten freedom of expression, and because many people have their identities or self-interests closely tied to violent video games.”
修斯曼说安德森的研究大概不会改变批评者看法和公众觉得问题尚无定论,因为一些研究得出没有影响,因为很多人留意到研究意味威胁表达自由,而且很多人的个性或个人利益紧系於暴力电子游戏.
Highlights of Supreme Court Video Game Case
最高法听证电子游戏案节录 (2010年11月2日)
California deputy attorney general Zackery Morazzini, staring oral arguments:The California law at issue today before this Court differs from the New York law at issue in Ginsberg in only one respect. Where New York was concerned with minors' access to harmful sexual material outside the guidance of a parent, California is no less concerned with a minor's access to the deviant level of violence that is presented in a certain category of video games that can be no less harmful to the development of minors.
加州副检察长萨奇·莫志尼(Zackery Morazzini),开始口头辩论:
今日本庭议题,加州的法律,与过去纽约的法律因金斯伯格(Ginsberg)4而起争议,只有一方面不同.纽约关心青少年没有家长指引接触有害色情资讯,加州的关怀不下於纽约,而在於青少年接触过分暴力,遂提出某些类型电子游戏同样不利於青少年发展.
4:1968年金斯伯格诉纽约(Ginsberg v. New York).纽约有法律禁止销售色情刊物予青少年,遭到检控的金斯伯格以言论自由抗辩,上诉到最高法院.最高法院裁定法律合宪,政府可以限制青少年接触色情,但不适用於成人,亦须证明色情讯息完全没有可取的社会价值,方可禁制.
When this Court in Ginsberg crafted a rule of law that permits States to regulate a minor's access to such material outside the presence of a parent, it did so for two fundamental reasons that are equally applicable this morning in this case.
本庭於金斯伯格一案设立法律规定,当家长不在时,允许国家规管青少年接触类似资讯,故此两点基础理由同样适用於今早本案.
First, this rule permits parents' claim to authority in their own household to direct the upbringing and development of their children; and secondly, this rule promotes the State's independent interest in helping parents protect the wellbeing of children in those instances when parents cannot be present.
第一,法律承认家长是其家中认可权威,决定怎样教化,养育他们子女;第二,规定促进国家自身利益,在家长缺席的情况下,协助家长保障儿童的福祉.
So this morning, California asks this Court to adopt a rule of law that permits States to restrict minors' ability to purchase deviant, violent video games that the legislature has determined can be harmful to the development -
所以今早加州要求本庭通过法律规定,容许国家限制青少年可以购买过分的暴力电子游戏,立法机构已经确定不利其发展...
Justice Antonin Scalia: What's a deviant — a deviant, violent video game? As opposed to what? A normal violent video game?
大法官安东尼·史格里亚(Antonin Scalia):
什麽是过分 - 一个过分的暴力电子游戏?那麽相对的是什麽?一个正常的暴力电子游戏?
Morazzini: Yes, Your Honor. Deviant would be departing from established norms.
莫志尼:没错,法官阁下.过分是指有乖公认规范.
Scalia: There are established norms of violence?
史格里亚:暴力哪里有公认规范?
Morazzini: Well, I think if we look back -
莫志尼:好的,我想我们可否回顾...
Scalia: Some of the Grimm's fairy tales are quite grim, to tell you the truth.
史格里亚:有些格林童话挺可怕,向你道出现实.
Morazzini: Agreed, Your Honor. But the level of violence -
莫志尼:同意,法官阁下.但暴力程度...
Scalia: Are they okay? Are you going to ban them, too?
史格里亚:它们行吗?将来你是不是又要禁制格林童话?
Morazinni: Not at all, Your Honor.
莫志尼:绝不,法官阁下.
Justice Ruth Bader Ginsburg: What's the difference? mean, if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm's fairy tales?
大法官鲁恩·金斯伯格(Ruth Bader Ginsburg):
有什麽分别?我意思是,当你假设一类型暴力题材危及儿童,你怎样仅限於电子游戏?电影又如何?漫画又如何?格林童话呢?
Why are video games special? Or does your principle extend to all deviant, violent material in whatever form?
为何电子游戏与别不同?抑或你的原则可以推展到任何过分的,暴力的题材?
Morazinni: No, Your Honor. That's why I believe California incorporated the three prongs of the Miller standard. So it's not just deviant violence. It's not just patently offensive violence. It's violence that meets all three of the terms set forth in -
莫志尼:不是,法官阁下.此所以我相信加州采纳米勒标准(Miller standard)5的三叉,不仅是过分暴力,也不仅是公然侵犯的暴力,符合所有三项解释的暴力...
5:1973年米勒诉加州(Miller v. California),最高法院裁确立米勒标准,切合三项标准的淫亵材料,不受第一修正案保护.第一点大意指有悖当代社会标准;第二点大意指显然违法的性侵犯行为;第三点大意指欠缺文学,艺术,政治,科学价值.
Chief Justice John Roberts: I think that misses Justice Ginsburg's question, which is: Why just video games? Why not movies, for example, as well?
首席大法官约翰·罗伯茨(John Roberts):
我认为你回避金斯伯格大法官的问题,问题是:为何只是电子游戏?举例,为何不是电影等等?
Morazzini: Sure, Your Honor. The California legislature was presented with substantial evidence that demonstrates that the interactive nature of violent — of violent video games where the minor or the young adult is the aggressor, is the — is the individual acting out this — this obscene level of violence, if you will, is especially harmful to minors. It -
莫志尼:好的,法官阁下.加州立法机构已提交大量证据表明互动状态的暴力 - 暴力电子游戏下青少年和年轻人成为侵犯者 - 他们自身正在这样做 - 暴力程度令人咋舌.如果你同意,它对青少年尤其有害,它...
Kagan: Suppose a new study suggested that movies were just as violent. Then, presumably, California could regulate movies just as it could regulate video games?
大法官伊莲娜·卡根(Elana Kagan):
假设有新的研究赞同电影一样暴力.想必加州之後可以监管电影,正如它可以监管电子游戏?
Morazzini: Well, Your Honor, there is scientific literature out there regarding the impact of violent media on children. In fact, for decades, the President, Congress, the FTC, parenting groups, have been uniquely concerned with the level of violent media available to minors that they have ready access to.
莫志尼:嗯,法官阁下.这是有关暴力媒体对儿童影响的科学文献.事实上数十年来,总统,议会,联邦贸易委员会(FTC),家长组织,各方罕有地关心青少年随时可以接触的暴力媒介达到什麽程度...
Justice Sonia Sotomayor: I don't think; is that answering Justice Kagan's question? One of the studies, the Anderson study, says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?
大法官桑妮雅·索托梅约(Sonia Sotomayor):
我不这麽看,那是在回答卡根大法官的问题?安德森(Anderson)其中一项研究说,一集宾尼兔(Bugs Bunny)6的暴力影响相当於一出暴力电影.那麽现在立法机构,能不能根据此研究,说我们要取缔宾尼兔?
6:
Morazzini: No —
莫志尼:不...
Sotomayor: There are people who would say that a cartoon has very little social value; it's entertainment, but not much else. This is entertainment.
索托梅约:有人或许会说,卡通缺少社会价值,仅属娱乐而已,就是娱乐.
I'm not suggesting that I like this video, the one at issue that you provided the five-minute clip about. To me, it's not entertaining, but that's not the point. To some it may well be.
我不是表示我喜欢这类影像,问题是你提供了5分钟的片段7,对我而言不是娱乐,但这不是重点,对一些人而言或许是.
7:应该是控方提供电子游戏喋血街头2(Postal 2)的录像作为呈堂证供.
Morazzini: Justice Sotomayor, cartoons do not depart from the established norms to a level of violence to which children have been historically exposed to.
莫志尼:索托梅约大法官,通过历史,显示卡通对儿童的暴力程度,没有乖离公认规范.
***
Sotomayor: Could you get rid of rap music? Have you heard some of the lyrics of some of the rap music, some of the original violent songs that have been sung about killing people and about other violence directed to them?
索托梅约:你能够清洗说唱音乐(rap music)吗?你有没有听过有些说唱音乐的歌词?有些原始的暴力歌,唱的是有关杀人和他们主导的其他暴力.
Morazzini: I would agree that it -
莫志尼:我同意...
Sotomayor: Could the State -
索托梅约:国家能否...
Morazzini: I would agree it's egregious, Justice Sotomayor. However -
莫志尼:我同意它们很坏,索托梅约大法官.然而...
Sotomayor: Why isn't that obscene in the sense that you're using the word, or deviant?
索托梅约:为何在这方面,不是你一直采用的淫亵,或过分一词?
Morazzini: Well, I'm not sure initially that it's directly harmful to the development of minors in the way that we know that violent video games can be. We know that violent material, like sexual material, appeals to a base instinct in -- in especially minors. It has -- it can be presented in a manner that -
莫志尼:好的,我不确定说唱音乐在早期对青少年发展的直接害处,而我们知道暴力电子游戏则有碍.我们知道暴力素材,如色情素材,唤起特别的青少年本能,它提供参考...
***
Justice Elana Kagan: Mr. Morazzini, could I take you back to Justice Scalia's original question, which was what counts as deviant violence or morbid violence. Because I read your briefs all the way through and the only thing that I found you said that was clearly covered by this statute was Postal 2. But presumably the statute applies to more than one video game. So what else does it apply to? How many video games? What kind of video games?
卡根:莫志尼先生,我能否带你回到史格里亚大法官原先的问题,什麽才算是过分或暴力或病态暴力.因为我从所有途径阅读你的简介,我发现你唯一说得出的,就是喋血街头2肯定会受法例干涉.但法例想必适用多於一款电子游戏,还有什麽在内?几多电子游戏?什麽类型的电子游戏?
I mean, how would you describe in plain English what morbid violence is, what you have to see in a video game for it to be covered?
我的意思是,你怎样以简洁英文形容什麽是病态暴力?你在电子游戏里看到什麽会受到干涉?
Morazzini: Okay. Justice Kagan, I would go back to the language of the statute, and the statute covers video games where the range of options available to the player includes maiming, killing, dismembering, torturing, sexually assaulting, and those types of violence. So I would look to games where -
莫志尼:好的,卡根大法官.我会回到法例的说法,法例涵盖电子游戏内有可供玩家一系列选项,包括致残,杀戮,肢解,虐待,性侵犯,诸如此类暴力.所以我将看游戏中...
Kagan: So anything that has those kinds of violence counts?
卡根:所以任何以上类型的暴力都算?
Morazzini: No, and then we would move to the three prongs of the Miller [obscenity] standard, Your Honor. We would look to see -
莫志尼:不是,所以我们转用米勒(淫亵)的三叉标准,法官阁下.我们会去看...
Kagan: Well, so how do we separate violent games that are covered from violent games just as violent that are not covered?
卡根:好吧,那麽我们怎样从暴力游戏中区分要受干涉的与不受干涉的暴力?
Morazinni: Well, Your Honor, I think a jury could be instructed with expert testimony, with video clips of game play, and to judge for themselves whether -
莫志尼:是的,法官阁下.我想陪审团在专家证词,游戏进行的录影片段下得到指示,或者他们可以自行判断...
Scalia: I'm not concerned about the jury judging. I'm concerned about the producer of the games who has to know what he has to do in order to comply with the law. And you are telling me, well a jury can — of course a jury can make up its mind, I'm sure. But a law that has criminal penalties has to be clear. And how is the manufacturer to know whether a particular violent game is covered or not?
史格里亚:我不在乎陪审团判断.我在乎游戏生产者须要知道他们所为要顺应法律.而你告诉我,是陪审团 - 没错是陪审团集合其思想,我肯定.但一道有刑罚的法律应该清晰.生产商怎样知道个别的暴力游戏是否受影响?
Morazinni: Well, Your Honor -
莫志尼:好的,法官阁下...
Scalia: Does he convene his own jury and try it before — you know, I really wouldn't know what to do as a manufacturer.
史格里亚:生产商是否先要尝试召开自己的陪审团 - 你知道,我真的不清楚生产商要做什麽.
Morazinni: Justice Scalia, I am convinced that the video game industry will know what to do. They rate their video games every day on the basis of violence. They rate them for the intensity of the violence.
莫志尼:史格里亚大法官,我确信电子游戏业会知道怎样做.他们每天都以暴力为基准分级其游戏.他们以暴力程度分级.
***
Justice Anthony Kennedy: Let me just make one comment on that point. It seems to me all or at least the great majority of the questions today are designed to probe whether or not this statute is vague. And you say the beauty of the statute is that it utilizes the categories that have been used in the obscenity area, and that there's an obvious parallel there.
大法官安东尼·甘乃迪(Anthony Kennedy):
就容我在此点提出意见.在我看来,今日所有或至少大部分问题,是打算探讨法例是否清晰.你说法例很好地采用经已应用於淫亵范畴的分类,两者显然并行不悖.
The problem is, is that for generations there has been a societal consensus about sexual material. Sex and violence have both been around a long time, but there is a societal consensus about what's offensive for sexual material and there are judicial discussions on it. Now, those judicial discussions are not precise. You could have had the same questions today with reference to an obscenity statute, and we have — we have said that, with reference to obscenity there are certain — that there are certain materials that are not protected. Those rules are not precise at the margins and some would say not precise in a more significant degree as well.
问题是色情题材已经有好几代的社会共识.色情与暴力皆存在已久,但只有对什麽是冒犯的色情题材有社会共识,有司法讨论.至今上述司法讨论尚未明确,即使今日参考的是淫亵法例,你会遇到同样问题,我们得说,依据何谓淫亵,若干题材不受保护.这些法律尚有商榷馀地,或许有人还会说很大程度尚不确定.
But you are asking us to go into an entirely new area where there is no consensus, no judicial opinions. And this is — and this indicates to me the statute might be vague, and I just thought you would like to know that — that reaction.
你却要求我们进入未有共识,未有司法意见的全新领域.对我而言即表示法例或许模糊不清,我想你要知道上述回应.
Moarzzini: Justice Kennedy, as with sexual — the regulation of sexual material and obscenity, we had to start somewhere. California is choosing to start now. We can build a consensus as to what level of violence is in fact patently offensive for minors, is deviant for minors, just as the case law has developed over time with sexual depictions. Your Honor, I believe the key is the similarities violence has with sex.
莫志尼:甘乃迪大法官,与色情无异,为规管色情和淫亵,我们得在某地开始.现在加州正选择开始.事实上什麽程度暴力显然伤害青少年,对青少年不当,我们能够建立共识,正如色情描述的案例法随时代进展.法官阁下,我相信暴力的关键与色情并无二致.
Scalia: What about excessive glorification of drinking, movies that have too much drinking? Does it have an effect on minors?
史格里亚:过分吹捧喝酒又怎麽样,电影有太多喝酒场面?有没有影响青少年?
I suppose so.
我想也有.
I — I am not just concerned with the vagueness.
我不仅关注其含糊不清.
I am concerned with the vagueness, but I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence.
我关注其模糊,但我也关注第一修正案,指国会不得立法剥夺言论自由.言论自由一向理解为不包括淫亵.从未曾理解为不包括暴力描写.
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.
你要求我们创立一条全新禁令,是美国人民自批准第一修正案後从未批准的.他们知道,你知道,淫亵不好,但暴力之後下一步是什麽?饮酒?吸烟?不能给孩子看出现吸烟的电影?对孩子有没有影响?我想当然有.
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?
然而我们是否要日日坐在这里,决定还有什麽将会成为第一修正案的例外?为什麽要接纳这个特别的例外,我却不赞成接纳其他的例外?
Morazinni: Well, Justice Scalia, I would like to highlight the fact that the material at issue in Ginsberg was not obscene. Under no existing definition of obscenity was the partial nudity that this Court allowed States to regulate minors' access to -
莫志尼:好的,史格里亚大法官.我想强调事实是金斯伯格一案中的有争议的材料不属淫亵.局部裸照是否属淫亵,未有现行定义下,法院允许国家监管青少年接触...
Justice Samuel Alito: Well, I think what Justice Scalia wants to know is what James Madison thought about video games. [Laughter]
大法官塞缪尔·阿利托(Samuel Alito):
嗯,我想史格里亚大法官想知道詹姆斯·麦迪逊(James Madison)8对电子游戏有何感想(笑).
8:美国开国元老之一,向誉为美国宪法之父.第四任美国总统.
***
Paul Smith, attorney representing the video game industry, beginning his remarks: The California law at issue restricts the distribution of expressive works based on their content. California, as we have heard today, does not seriously contend that it can satisfy the usual First Amendment standards that apply to such a law. Instead it's asking this Court to grant it a new free pass, a brand-new Ginsberg-like exception to the First Amendment that would deny constitutional protection to some ill-defined subset of expressive works, and I submit not just video games, but necessarily movies, books and any other expressive work that describes or portrays violence in a way that some court somewhere, some day, would decide is deviant and offensive.
保罗·史密夫(Paul Smith),电子游戏业代表律师,开始发言:
受争议的加州法律妨碍表达工作根据其内容发布.正如我们今日所听到,加州没有认真处理,它能否满足第一修正案的一般标准,是否适用於此法.反而要求法院给予免费门票,成为类似金斯伯格一案,第一修正案的全新例外,抵制宪法保护表达工作上一些不明确题材,我认为不仅电子游戏,电影,书籍或其他表达工作必须描写或描绘若干暴力,有些时候,有些地方,有些法院则判断为过分与冒犯.
Roberts: What about the distinction between books and movies may be that in these video games the child is not sitting there passively watching something; the child is doing the killing. The child is doing the maiming. And I suppose that might be understood to have a different impact on the child's moral development.
罗伯茨:怎样面对书籍和电影与之有别,儿童在电子游戏不是被动地坐着观看,他们正在做出杀人,使人残废行为.我想或许会理解成对儿童道德发展有不同影响.
Smith: Well, Your Honor, it might. The State of California has not marshalled a shred of evidence to suggest it's true. And if you look at the social science -
史密夫:没错,法官阁下,或许.加州搜集不到丁点证据肯定属实.如你留意社会科学...
Roberts: What was the state of the record that was present before the Court in Ginsberg?
罗伯茨:法院处理金斯伯格一案前,有何已存的记录提供?
Smith: The state of the record was that they were aware of science on both sides and made a judgment that as a matter of common sense they could decide that obscenity, even somewhat at-large obscenity —
史密夫:记录的情况是双方皆重视科学,并视为常识问题来判断,他们可以决定淫亵,甚至一些极度淫亵...
Roberts: So the Court acted on the basis of common sense?
罗伯茨:所以法院根据常识行动?
Smith: Yes. It said as long as there is science on both sides, but in that particular area, which is an exception based — that goes back to the founding, they felt that it was proper for them to adjust the outer boundaries of the exception.
史密夫:没错.所以说只要双方都重视科学,但在特别范畴,例外建基於 - 可以追溯到建国元老,他们认为调整边缘之外的例外是适当的.
Ginsburg: But the material wasn't obscene. They were girlie magazines, I imagine to today's children they would seem rather tame, the magazines involved. But they were definitely not obscene with respect to adults.
罗伯茨:可是题材并非淫亵,是裸女杂志.我猜如今孩子想看这些杂志而不会听话.这些杂志包括在内,但对成人而言肯定不属淫亵.
Smith: Your Honor, that's certainly true. But one of the things about the case that is important to recognize, is they didn't pass on the particular material before the Court. They simply said, is this somewhat larger definition of variable obscenity going to be acceptable to -
史密夫:法官阁下,确实如此.但案中一处重要地方须要承认,法院判案前人们经已不接纳此特别题材.仅仅表示,一些定义较宽,变化较大的淫亵可获批准...
Justice Stephen Breyer: Talking about common sense, why isn't it common sense to say that if a parent wants his 13-year-old child to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence upon small children and women and do this for an hour or so, and there is no social or redeeming value, it's not artistic, it's not literary, et cetera, why isn't it common sense to say a State has the right to say, parent, if you want that for your 13-year-old, you go buy it yourself, which I think is what they are saying.
大法官史蒂芬·布雷耶(Stephen Breyer):
谈谈何谓常识.为何常识不会说,父母希望13岁孩子得到游戏,他们会坐下花一小时以上,想像自己是施虐者,没有道理地对强行使用暴力,痛苦地折磨,虐待儿童,妇女.而且不是艺术,不是文学等,毫无社会或可取价值.为何常识不会说,国家有权利向父母说,当你们还是13岁时,可以自行买这种游戏,我想这是父母要说的.
Smith: Well, Your Honor, the State has to have some reason to think that parents -
史密夫:好的,法官阁下,国家必须有一定理由认为父母...
Breyer: It does, it does. What it has is — and I have looked at the studies, perhaps not as thoroughly as you. But it seemed to me that Dr. Ferguson and Dr. Anderson are in a disagreement. They aren't in that much of a disagreement actually, but they have looked in depth at a whole lot of video games, not movies they are talking about or other things; they are talking about video games.
布雷耶:有的,有的.有的是 - 我看过研究,或许对你而言不够彻底,在我看来费格森博士( Dr. Ferguson)和安德森博士(Dr. Anderson)意见有分歧.但事实上他们分歧不大,他们都深入检视大量电子游戏,他们没有旁及电影或其他东西,他们说的是电子游戏.
And both groups come to the conclusion that there is some tendency to increase violence. And the American Psychiatric — Psychological Association, the American Pediatric Association, sign on to a long list on I think it is the Anderson side that this does hurt children.
双方结论皆指有若干趋势增加暴力.美国心理学协会(American Psychological Association),美国儿科协会(American Pediatric Association),联署成一份长长名单,我看是站在安德森一边,暴力电子游戏会伤害儿童.
I have to admit that if I'm supposed to be a sociological expert, I can't choose between them. But if I can say could a legislature have enough evidence to think there's harm, the answer is yes.
我承认,假设我是社会学专家,我无法二择其一.但我能够说如果立法机关有足够证据认为有害,答案是可以限制.
Smith: There is two aspects of harm. The one I was about to address was the question of whether parents need additional help in exercising the role that they have played throughout the history -
史密夫:危害有两方面,一方面我正要疏理的问题是,父母所担当角色是否需要额外协助,纵贯历史,父母已经行使...
Breyer: Yes. They need additional help because many parents are not home when their children come home from school. Many parents have jobs, we hope. And when their children are there, they do what they want. And all this says is that if you want that gratuitous torture of, let's say babies, to make it as bad as possible, what you do, parent, is you go buy it; don't let him buy it on his own, and he's 13 years old. Now, what's the common sense or what's the science of that?
布雷耶:没错.父母需要额外协助,因为他们子女放学回家的时候,他们不在.我想很多父母都有工作,当孩子在家,他们干自己想做的事.所有情况表示,比如说你想无谓地虐待婴儿,尽情行恶,你是父母你会怎样做,去买这些暴力电子游戏抑或不让年仅13岁孩子自行去买.现在,什麽才算常识,什麽才算科学?
Smith: Well, two aspects. With respect to parental controls, Your Honor, there is a whole variety — a whole series of things that parents have available to them and are using today to deal with any concerns they have about what's appropriate for their children.
史密夫:好的,两方面.对於家长控制9,法官阁下,有各式各样 - 如今有一系列法门可供家长使用,处理什麽才适合他们小孩的任何顾虑.
9:泛指电脑,手机,游戏机和数码电视等设备提供给家长的监视,过滤服务.
Roberts: I don't want to interrupt your answer, but any 13-year-old can bypass parental controls in about 5 minutes.
罗伯茨:我不想打断你的回答,但任何13岁儿童都能够在5分钟内避开家长控制.
Smith: That is one element of about five different elements, Your Honor. If I could talk about — there is the ratings. Parents are doing the purchasing 90 percent of the time. Even if the child does the purchasing, they bring the game home, the parent can review it.
史密夫:家长控制只是五种不同要素的其中之一,法官阁下.容我指出有评级存在.90%时间是由父母去购物,即使倘若是孩子去购物,买游戏回家,家长能够检视它.
The game is being played in the home on the family television or computer most of the time. Any harm that is supposed to be inflicted on them is supposed to take place over a period of years, not minutes, so the parent has ample opportunity to exercise parental supervision over what games are being played in the house. Plus there is the parental controls, which are similar to the ones that the Court has found to be significant in the Playboy case, in the COPA case, a whole variety of cases.
游戏通常在家中家庭电视或电脑进行.假设游戏会加害孩子,假设在若干年间出现,在家中进行什麽游戏,父母有充分机会实施家长监督,还有家长控制,正如法院发现过一些案例有重大意义,花花公子(Playboy)案10,儿童在线保护法(COPA)案11等,任何各式各样案例.
10:通讯规范法(Communications Decency Act/CDA)只准有线电视於下午10时到早上6时播放色情节目.花花公子娱乐集团兴讼,指其违宪.联邦地方法院裁定後者胜诉,美国政府上诉至最高法院,至最高法院维持政府败诉,裁定法例部分条文违反第一修正案(United States v. Playboy Entertainment Group).
11:美国议会先後於1996年和1998年制定通讯规范法(Communications Decency Act/CDA)和儿童在线保护法(Child Online Protection Act/COPA).规管网上色情资讯,皆惹来诉讼,皆交由最高法院终审,皆裁定法律违宪(Reno v. American Civil Liberties/Ashcroft v. American Civil Liberties Union).後来议会修订法例方获承认.不少评论根据以上案例,认为加州法律难逃厄运.
***
Kagan: You think Mortal Kombat is prohibited by this statute?
卡根:你认为真人快打(Mortal Kombat)12会受到法例处罚吗?
12:
Morazzini: I believe it's a candidate, Your Honor, but I haven't played the game and been exposed to it sufficiently to judge for myself.
莫志尼:我相信它是候审游戏,法官阁下,但我未曾玩过,接触过此游戏,个人未足以判断.
Kagan: It's a candidate, meaning, yes, a reasonable jury could find that Mortal Kombat, which is an iconic game, which I am sure half of the clerks who work for us spend considerable amounts of time in their adolescence playing.
卡根:它是候审游戏,意味着,是的,一个明理的陪审团会发现,真人快打是一个标志游戏,我肯定为我们工作的半数职员,在青春期花了相当时间玩它.
Scalia: I don't know what she's talk about.
史格里亚:我不懂她(译注:卡根)在说什麽.
Morazzini: Justice Kagan, by candidate, I meant that the video game industry should look at it, should take a long look at it. But I don't know off the top of my head. I'm willing to state right here in open court that the video game Postal II, yes, would be covered by this act. I'm willing to guess that games we describe in our brief such as MadWorld would be covered by the act. I think the video game industry —
莫志尼:卡根大法官,作为候审游戏,我的意思是指电子游戏业要检视它,要长期观察它,但现时我尚未清楚.我乐意在法庭公开申明权力,没错,电子游戏喋血街头2,将会受到法案影响.我乐意推断我们简略交代过的游戏,诸如疯狂世界(MadWorld)会受法案影响.我认为电子游戏业...
Sotomayor: Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?
索托梅约:若一款电子游戏描绘一个火神(Vulcan)与人作对,受到致残和虐待,会不会受法案影响?
Morazzini: No, it wouldn't, Your Honor, because the act is only directed towards the range of options that are able to be inflicted on a human being.
莫志尼:不会,不会,法官阁下,因为法案只针对有一系列选项,可以加害人的游戏.
Sotomayor: So if the video producer says this is not a human being, it's an android computer simulated person, then all they have to do is put a little artificial feature on the creature and they could sell the video game?
索托梅约:那麽如果游戏生产者说它不是人,是模拟人的电脑机械人,所有生产者都可以为生物加上些少人工特徵,就可以售卖电子游戏?
Morazzini: Under the act, yes, because California's concern, I think this is one of the reasons that sex and violence are so similar, these are base physical acts we are talking about, Justice Sotomayor. So limiting, narrowing our law here in California, there in California to violence — violent depictions against human beings.
莫志尼:根据法案,是,因为我想加州考虑的其中一个理由,是色情与暴力颇为相似,皆建基於我们说及的物理行动.所以加州限制,收紧暴力的法律是针对人的暴力描绘.
Sotomayor: So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven't been maimed and killed forever. Just temporarily.
索托梅约:当角色遭致残,遭斩首,又瞬即回复生命继续战斗,那又怎麽办.会否受法律干涉?因为他们没有永远残废或丧命,仅属暂时.
Morazzini: I would think so. The intent of the law is to limit minors' access to those games.
莫志尼:我想会受影响.法律目的是规范青少年接触这类游戏.
