Justices to Weigh Law on Minors’ Access to Violent Video Games

By Mark Walsh — April 26, 2010 2 min read
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The U.S. Supreme Court today agreed to take up a California law that prohibits the sale or rental of violent video games to minors.

The justices accepted an appeal filed on behalf of Gov. Arnold Schwarzenegger defending a 2005 law that was struck down by a federal appeals court as a violation of the First Amendment.

The law defines violent video games as ones 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 meets either of two standards. One standard includes whether the game lacks serious literary, artistic, political, or scientific value for minors. The second standard involves whether the game “enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved.”

The law was challenged by the video gaming industry, and in a February 2009 ruling, a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held that the law violates the First Amendment.

“Under strict scrutiny, the state has not produced substantial evidence that supports the Legislature’s conclusion that violent video games cause psychological or neurological harm to minors,” said the 9th Circuit panel’s unanimous opinion. “Even if it did, the Act is not narrowly tailored to prevent that harm and there remain less restrictive means of forwarding the state’s purported interests, such as the improved ESRB rating system, enhanced educational campaigns, and parental controls.”

In the lower courts, the state submitted violent scenes from such video games as “Grand Theft Auto: Vice City,” “Postal 2,” and “Duke Nukem 3D.”

In its appeal to the Supreme Court in Schwarzenegger v. Entertainment Merchants Association (Case No. 06-1448), the state said, “This is an important issue with national implications,particularly in light of the growing evidence that these games harm minors and that industry self-regulation through the existing rating system has proven ineffective.”

In its brief urging the high court not to take up the case, the video game industry argues that virtually every other attempt by states or localities to restrict the sale of violent video games to minors has been struck down. The brief argues that the 9th Circuit’s ruling was correct.

“Outside of limited contexts such as public schools,the government may not generally act as a censor on what material is appropriate for minors,” said the industry’s brief. “The proper arbiters of what minors view are parents, not the government.”

The court will take up the case in its next term, which begins in October.

A version of this news article first appeared in The School Law Blog.