Calif. Law Regulating Video Games Struck Down

Published April 1, 2009

A 2005 California law aimed at restricting the sale or rental of violent video games to minors and requiring a warning label on certain games violated the U.S. Constitution’s free speech protections, a federal appeals court has ruled.

The video game industry and civil libertarians hailed the decision by the Ninth U.S. Circuit Court of Appeals. The three-judge panel unanimously upheld a 2007 lower court decision and reaffirmed video games “are a form of expression protected by the First Amendment.”

Another Defeat for Regulators

The February ruling in Video Software Dealers Association v. Schwarzenegger marks the latest defeat for state regulation of video games. State and federal courts have struck down 13 similar laws in Illinois, Louisiana, Michigan, Minnesota, and Oklahoma on free expression grounds.

California’s law would have imposed a fine of up to $1,000 on anyone who sold or rented to a minor any video game labeled “18.” The court flatly rejected the state’s argument purporting a link between violent video games and aggressive behavior.

“The State has not produced substantial evidence that supports the Legislature’s conclusion that violent video games cause psychological or neurological harm to minors,” Judge Consuelo M. Callahan wrote in the 30-page ruling.

Decision Hailed

Video game industry officials called the court’s decision “a vindication” of their preference for voluntary ratings, retailer-based educational efforts, and parental responsibility.

“Ratings education, retailer ratings enforcement, and control of game play by parents are the appropriate responses to concerns about video game content,” said Entertainment Merchants Association President and CEO Bo Anderson.

State May Fight On

The author of the California law, state Sen. Leland Yee (D-San Francisco), urged Attorney General Jerry Brown to appeal the Ninth Circuit decision to the United States Supreme Court.

“We need to help empower parents with the ultimate decision over whether or not their children play in a world of violence and murder,” Yee said in a press release.

Crossing a ‘Bright Line’

The Ninth Circuit also said legislators crossed a bright constitutional line with the law’s labeling requirement. The court said California’s label mandate “compels the carrying of the State’s controversial opinion,” as opposed to relating “purely factual information” stating a game contains intense violence.

State lawyers argued that since the government can restrict minors’ access to pornography, it should be permitted to establish an adults-only category of ultraviolent video games.

The court panel disagreed on that, too. Citing a 1968 Supreme Court decision, Ginsburg v. New York, the Ninth Circuit panel said obscenity applies only to sex, not violence.

Legislatures Giving Up

First Amendment attorney Lawrence Walters, who specializes in video game litigation, said he hoped 13 high-profile defeats would dissuade legislators from continuing to seek restrictions on video game sales.

“Everyone was waiting on the Ninth Circuit,” Walters said. “All of the major cases have been resolved at this point. Legislatures are backing away from this issue, because they know they’ll lose.”

Ben Boychuk ([email protected]) writes from Rialto, California.