Supreme Court strikes down violent video game ban

McClatchy NewspapersJune 27, 2011 

WASHINGTON — The Supreme Court on Monday struck down California's ban on the sale of violent video games to minors, extending the kind of speech protected by the Constitution and complicating the work of paternalistic legislators.

In a ruling closely watched by other states and the entertainment industry, the court in what amounts to a 7-2 ruling determined that California's 2005 violent video game restrictions violated free speech rights guaranteed by the First Amendment.

"Even where the protection of children is the object, the constitutional limits on governmental action apply," Justice Antonin Scalia wrote for the majority.

The ruling in Brown v. Entertainment Merchants Association is a defeat for current Gov. Jerry Brown. As California's attorney general, he defended the law, signed by former Gov. Arnold Schwarzenegger, the onetime star of the violent "Terminator" movie series.

The ruling also continues a run of cases in which the justices have struck down restrictions on violent or salacious material conveyed through a succession of media formats.

"Whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary," Scalia wrote.

Next term, the trend could continue, as the court announced Monday it would review the Federal Communications Commission's rules governing indecent broadcasts.

The video game ruling Monday, moreover, could constrain at least 11 other states, including Florida, Mississippi and Texas, that explicitly sided with California's efforts to restrict the video games minors can buy. The California state senator who authored the law, Democratic Sen. Leland Yee, acknowledged he was "rather disappointed" by the decision but suggested lawmakers might try yet again.

"If we craft the bill differently, there may be a basis for it to be upheld," Yee said at a news conference in California.

Justices Stephen Breyer and Clarence Thomas dissented separately.

"The interest that California advances in support of the statute is compelling," Breyer wrote, adding that video games can end up "teaching (children) to be violently aggressive in life."

At Breyer's behest, the Supreme Court library compiled hundreds of academic studies that concluded psychological harm results from playing violent video games.

Thomas stressed his belief that courts should strictly confine themselves to the original meaning of the Constitution, stating that the Constitution's authors believed firmly that "parents have authority over their children."

Chief Justice John Roberts and Justice Samuel Alito agreed with the majority that California's law, while "well intentioned, (was) not framed with the precision the Constitution demands." The two conservative justices, however, suggested that, as Alito put it, "differently framed statutes" that imposed narrower restrictions might survive court scrutiny.

California's law banned the sale of violent video games to customers under 18. Lawmakers defined "violent" as activity involving "killing, maiming, dismembering, or sexually assaulting an image of a human being." Each violation could bring a $1,000 fine.

The law was modeled after obscenity statutes. It set a familiar sounding threshold that a "reasonable person" must think the violent game was "patently offensive," appealed to a minor's "deviant or morbid interest" and lacked serious scientific, literary or artistic merit.

Though passed six years ago, the California law has faced legal challenges the entire time and it has never been put into practice.

California lawmakers justified the restriction as a way to protect minors' "physical and psychological welfare, as well as their ethical and moral development." They cited games such as "Postal 2," in which one illustrative scene includes the player hitting a woman in the face with a shovel.

"As she cries out and kneels down, the player hits her twice more with the shovel, this time decapitating her," California's legal brief recounted. "The player then proceeds to hit the headless corpse several more times, each time propelling the headless corpse through the air while it continues to bleed."

Entertainment industry advocates countered with their own, more edifying game examples, such as "Full Spectrum Warrior" and "Tom Clancy's Rainbow Six." Consumers worldwide spent an estimated $25 billion last year on video games, hardware and accessories.

"The Supreme Court affirmed what we have always known, that free speech protections apply every bit as much to video games as they do to other forms of creative expression like books, movies and music," said Michael D. Gallagher, president and chief executive officer of the Entertainment Software Association.

Three of the top 10 best-selling video games are part of the "Grand Theft Auto" series, according to the NPD market research company. The games are rated M, for mature.

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