Law & Courts

High Court Strikes Down Calif. Law on Violent Video Games

By Mark Walsh — June 27, 2011 4 min read
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The U.S. Supreme Court on Monday struck down a California law that bars the sale of violent video games to minors.

The court ruled 7-2 in Brown v. Entertainment Merchants Association (Case No. 08-1448) that the state’s attempt to shield young people from violence in video games violates the First Amendment guarantee of free speech.

Writing for the majority, Justice Antonin Scalia said the high court had never permitted government to restrict violent speech directed to minors. From the bench, he noted that children and teenagers are exposed to violence in literature from a very young age, ranging from Grimm’s Fairy Tales to high school reading lists that include Homer’s Odyssey and William Golding’s Lord of the Flies.

“In truth, the California act is the latest is a long series of failed attempts to censor violent entertainment for minors,” Scalia said, citing past efforts to restrict dime novels, movies, comic books, and music lyrics.

“Despite these censorship campaigns, this court has never permitted governmental regulation of minors’ access to any forms of entertainment except on obscenity grounds,” Scalia said.

His opinion was joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

Justice Samuel A. Alito Jr. wrote an opinion concurring in the outcome, which was joined by Chief Justice John G. Roberts Jr. He said he would have only ruled that the California law did not provide fair notice of what was constitutional, but he would not have gone as far as the majority in foreclosing government regulation of video games.

“There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show,” Alito said.

He said there as an “astounding” amount of violence in many games, and that there is “no antisocial theme too base” for the game industry to exploit. Among the games he cited as disturbing was “School Shooter,” a game that caused controversy earlier this year with its theme of allowing players to reenact the student killings at Columbine High School and Virginia Tech.

Justices Clarence Thomas and Stephen G. Breyer each dissented.

Justice Thomas cited the history of parental control of children from the early days of the Republic and said, “The freedom of speech, as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians.”

Breyer said the California law “imposes no more than a modest restriction on expression.”

“This case is ultimately less about censorship than it is about education,” Breyer added. “Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments.”

The high court heard arguments in the case in November, but didn’t announce an outcome in the case until the last day of its term on June 27.

Under California’s law, adopted in 2005 but never enforced, violent games are defined as those that include “killing, maiming, dismembering, or sexually assaulting an image of a human being,” if the game lacks “serious literary, artistic, political, or scientific value for minors.”

The state has not specified what games meet the definition, which borrows heavily from the high court’s obscenity jurisprudence. The law requires distributors to place an “18" label on violent games, and it bars retailers from selling or renting such games to anyone under 18, with civil penalties of up to $1,000 per violation. Parents would not be barred from buying the games for their children.

Acknowledging that the measure would not pass strict scrutiny—the highest level of judicial analysis—for laws that impinge on free speech, California had asked the Supreme Court to place violent video games in the same category as sexually explicit materials, requiring only a rational basis for their regulation as they relate to minors.

The state argued that it was helping parents raise their children free of exposure to violent and offensive speech, and it stressed a number of the Supreme Court’s precedents in the area of regulating school speech.

The industry groups for merchants and video-game producers that challenged the law had argued that California’s measure was the latest in a long history of overreactions to new media aimed at young people.

The Entertainment Merchants Association and the Entertainment Software Association said comic books, true-crime novels, movies, and rock music were all accused of harming youths, but such fears proved unfounded. The groups also argued that upholding the law would create a slippery slope that could allow regulation of young people’s access to other works containing violence.

Michael D. Gallagher, the president and CEO of the Entertainment Software Association, a Washington-based group that represents the video game industry, said the decision was “a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere.”

“The court declared forcefully that content-based restrictions on games are unconstitutional, and that parents, not government bureaucrats, have the right to decide what is appropriate for their children,” Gallagher added in a statement.

On the other side, Common Sense Media, a San Francisco-based media review group that filed a friend-of-the-court brief in support of the California law, called the decision disappointing.

“If parents decide a violent game is okay for their kid, that’s one thing, but millions of kids are not able to judge the impact of ultra-violence on their own,” James Steyer, the chief executive of the group, said in a statement. “Today, the multi-billion dollar video game industry is celebrating the fact that their profits have been protected.”

Photo: A Bulletstorm video game is displayed at a store in Palo Alto, Calif. (Paul Sakuma/AP)

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