Supreme Court to review ban on sale of violent video games to minors

McClatchy NewspapersApril 26, 2010 

WASHINGTON — The Supreme Court on Monday agreed to review a challenge to California's ban on the sale of violent video games to minors.

Hot on the heels of overturning a congressional ban on videos depicting animal cruelty, justices said they would consider the constitutionality of California's 2005 law sometime during the next term that starts in October. A federal judge has previously blocked the state law from taking effect.

"The public agrees (that) video games should be provided the same protections as books, movies and music," Entertainment Software Association President Michael D. Gallagher said Monday, adding that "we look forward to ... vigorously defending the works of our industry's creators, storytellers and innovators."

The law's author, California State Sen. Leland Yee, a Democrat from San Francisco, likewise said he was "pleased" with the upcoming court review.

"The Supreme Court has never heard a case dealing with violent video games," Yee noted, so "states are now certain to receive direction on how to proceed with this important issue."

The closely watched free-speech case is likely to become one of the first to be heard by the newest Supreme Court justice, who is expected to be nominated by President Barack Obama in coming weeks.

The court's newest member will replace Justice John Paul Stevens, who joined an eight-member majority last week in overturning the congressional ban on videos depicting animal cruelty. That 8-1 decision, with its expansive view of the First Amendment, suggests justices could be skeptical as they review California's law.

"The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits," Chief Justice John Roberts Jr. wrote for the majority last week.

The California law now in question prohibits the sale of video games to minors under 18 "where a reasonable person would find that the violent content appeals to a deviant or morbid interest of minors." As with laws governing obscenity, the state statute exempts games that have "serious literary, artistic, political, or scientific value."

At least nine other states and localities have enacted similar restrictions, including Washington, Minnesota and Illinois. In California, retailers are subject to $1,000 fines for each violation.

"This court should...permit states to treat extremely violent material the same as sexually explicit material," California Attorney General Jerry Brown argued in a legal brief, adding that "the First Amendment rights of minors are not coextensive with those of adults."

Yee, a child psychologist, cited academic studies suggesting links between playing violent video games and aggressive behavior. Supporters of the law further cite specific game descriptions to justify the restrictions

"Girls attacked with a shovel will beg for mercy; the player can be merciless and decapitate them," Brown elaborated in his legal brief. "People shot in the leg will fall down and crawl; the player can then pour gasoline over them, set them on fire, and urinate on them."

Nonetheless, the San Francisco-based Ninth Circuit Court of Appeals unanimously struck down the California law.

"The state had wrongly chosen to ban the games without exploring less restrictive alternatives, such as working with parents and retailers," stated attorney Paul M. Smith, in a legal brief filed for the Entertainment Software Association and the Entertainment Merchants Association.

The video game merchants also maintain that even controversial games can explore important themes. The vividly violent games "Resident Evil 4" and "Tom Clancy's Rainbow Six 3," for instance, contain "detailed plots and battles of good against evil," according to Smith.

The video game industry maintains its own rating system, including descriptors such as "crude humor" and "cartoon violence." The ratings help adults guide video game purchases by minors, which Smith argues is the proper form of protection.

The Ninth Circuit in its February 2009 decision determined the state law was the kind of speech restriction subject to "strict scrutiny," which means it must be narrowly tailored to meet a compelling government interest.

"We must distinguish the state's interest in protecting minors from actual psychological or neurological harm from the State's interest in controlling minors' thoughts," appellate Judge Consuelo Callahan wrote. "The latter is not legitimate."

The case is called Schwarzenegger v. Entertainment Merchants Association.

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