WASHINGTON — A California law that bans selling violent video games to minors continued its rocky legal tour Tuesday as members of the Supreme Court seemed troubled by the law's vagueness and unmoved by arguments to uphold the measure, which would create a new exception to the First Amendment's protection of free speech.
In an hour of questioning that showed the justices' sense of humor and their relative inexperience with the world of video gaming, most seemed uneasy about being asked to apply a new free-speech standard to violent video games while ignoring the violence that minors can experience online or in movies, music, cartoons and books.
"You're asking us to create . . . a whole new prohibition which the American people never, never ratified when they ratified the First Amendment," Justice Antonin Scalia said.
Scalia pointed out that even so-called children's books such as "Grimm's Fairy Tales" are ripe with violent imagery of assorted villains getting their comeuppance.
"Some of 'Grimm's Fairy Tales' are quite grim, to tell you the truth," Scalia remarked.
Justice Ruth Bader Ginsburg was equally skeptical.
"If you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games?" Ginsburg asked. "What about films? What about comic books? 'Grimm's Fairy Tales'? Why are video games special?"
Zackery Morazzini, supervising deputy attorney general for the state of California, argued that video games are especially harmful because minors don't just read or see acts of violence, they participate by committing virtual acts of violence in many instances.
He said studies had shown the games to be "exemplary teachers of aggression, which was the fundamental concern of the California legislature in enacting this statute."
Justice Sonia Sotomayor pointed out, however, that another study said that watching a Bugs Bunny cartoon had the same effect on minors that playing a violent video game did.
"So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?" she asked.
Gov. Arnold Schwarzenegger signed California's controversial measure into law in 2005. It bans selling or renting 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." Retailers that break the law could face a $1,000 fine for each violation.
At least nine other states and localities have enacted similar laws, but before California's law could be implemented, trade groups for the video gaming industry challenged it.
A federal district court and the San-Francisco-based 9th U.S. Circuit Court of Appeals ruled that the law violated free speech protections, which led state officials to ask the high court to determine the law's constitutionality.
California argues that video games that allow players to kill, maim, dismember or sexually assault the image of another human being don't have free-speech protections that can be regulated by government.
Specifically, the state claims that violent video games fall into the same category of speech as obscenity, which the courts already restrict selling to minors.
Like obscenity laws, the California measure exempts games that have "serious literary, artistic, political or scientific value." Scalia suggested facetiously that the job of deciding which videos meet that vague standard would fall to the "California Office of Censorship."
"I'm concerned about the producer of games who has to know what he has to do in order to comply with the law," Scalia added.
Attorney Paul Smith, who represented the gaming industry at Tuesday's hearing, said the case was a latter-day version of a recurring theme in U.S. history: the wary eye of government on new forms of media and expression. He said similar societal concerns were raised about crime novels, comic books and television at the height of their popularity.
If the law is upheld, Smith said, it would "deny constitutional protection to some ill-defined subset of expressive works" that could ultimately include movies, books "and any other expressive work that describes or portrays violence in a way that some court somewhere, someday, would decide is deviant and offensive."
Smith said the California law was unnecessary because parents already had a variety of controls, such as a voluntary gaming-industry rating system and the ability to judge the appropriateness of children's games in their own homes.
The high court isn't expected to rule on the closely watched case until the middle of next year.
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