California AG Brown Fights for Video Game Restrictions

Published August 1, 2009

California Attorney General Jerry Brown is asking the United States Supreme Court to overturn a Ninth U.S. Circuit Court of Appeals decision invalidating a state law regulating video game sales to minors.

“California’s children are exposed every day to video games that glamorize killing sprees, torture, and sexual assault,” Brown said in a prepared statement. “In the face of this brutal and extreme violence, I am petitioning the Supreme Court to allow the state to enforce its reasonable ban on the sale or rental of violent video game sales to children.”

First Amendment Concerns

Brown filed a petition for a writ of certiorari on May 20, three months to the day after a three-judge federal court panel unanimously reaffirmed video games “are a form of expression protected by the First Amendment.”

The state’s appeal asks the Supreme Court to consider two questions.

First, does the First Amendment forbid a state from restricting the sale of violent video games to minors? And second, must the state show a direct, causal link between violent video games and physical and psychological harm to minors before it can prohibit the sale of the games to minors?

Law Thrown Out

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 Constitution’s free speech protections, a federal appeals court ruled on February 20. California’s law would have imposed fines of up to $1,000 on anyone who sold or rented to a minor any video game labeled “18.”

Although federal courts have consistently and repeatedly voided laws aimed at regulating video game sales, the Supreme Court has not yet addressed the issue directly.

State and federal courts have struck down 13 such laws, including in Illinois, Oklahoma, Minnesota, Michigan, and Louisiana.

‘Monumental Waste’

The video game industry and at least one First Amendment specialist criticized California’s appeal as a waste of time and taxpayer dollars.

The Entertainment Software Association, one of the parties challenging California’s law, said it was “confident” the state’s appeal would fail.

“From a resources allocation perspective, this is a monumental waste of time and money,” said attorney Lawrence Walters, who specializes in video game cases. “The odds are one in 100 that the Court will take the case, in the first place. If it does, the precedent in support of the Circuit Court’s ruling, striking down the law, is consistent and strong throughout the country.”

Obscenity Designation Sought

California’s appeal argues the Supreme Court should treat video games under the rules for obscenity, which would give states more leeway to regulate content. Walters conceded the justices “could theoretically rule that video games are not protected speech,” akin to obscenity, but he isn’t convinced they would ignore so much precedent.

The Ninth Circuit panel rejected the claim that obscenity standards should apply to violence.

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