The U.S. Supreme Court will rule on a constitutional challenge to California’s ban on the sale and rental of violent video games to minors.
The high court agreed in April to take the case, rife with First Amendment questions, in which the state of California argues it has the right to restrict access to violent video games in the same manner it keeps sexually explicit materials out of the hands of anyone under the age of 18. The California law defines a violent video game as one that “includes killing, maiming, dismembering or sexually assaulting an image of a human being.”
California Gov. Arnold Schwarzenegger (R) signed the measure into law in 2005. The law also imposes strict labeling requirements on violent video games—such as the wildly popular Grand Theft Auto series that also contains story lines suggesting sexual activity.
But federal judge Ronald Whyte immediately suspended the law after the Entertainment Software Association (ESA) filed a lawsuit arguing it violated the free speech rights of game designers and companies. The U.S. Circuit Court for the 9th Circuit upheld that decision last year.
Game Industry Pleased
Michael D. Gallagher, president and CEO of the ESA, says he’s confident the Supreme Court will rule in favor of his association.
“Courts throughout the country have ruled consistently that content-based regulation of computer and video games is unconstitutional,” Gallagher said in a statement on April 26, the day the Court announced it would take the case.
“We are hopeful that the Court will reject California’s invitation to break from these settled principles by treating depictions of violence, especially those in creative works, as unprotected by the First Amendment,” he said.
Gallagher maintains public opinion is on his side. He points to a recent poll by KRC Research that found 78 percent of respondents believe the First Amendment should protect video games in the same way it protects the content of books, movies, and music.
California Argues ‘Common Sense’
California Attorney General Jerry Brown, who is running as a Democrat for governor, says at least nine other state and local governments have passed similar measures. He urged the court to rule in favor of the law.
“It is time to allow California’s common-sense law to go into effect and help parents protect their children from violent video games,” Brown said in a written statement.
“We have a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions, just as we already do with movies,” said Schwarzenegger, a former movie star, in a written statement. “I am pleased the U.S. Supreme Court has decided to take up this issue, and I look forward to a decision upholding this important law that gives parents more tools to protect their children, including the opportunity to determine what video games are appropriate.”
Court Tackling Speech, Technology
The Supreme Court’s decision to take on this case came just days after the justices ruled 8-1 to throw out a federal law that outlawed the sale of videos depicting acts of illegal animal cruelty. The court’s decision in that case hinged on First Amendment free speech grounds.
Adam Thierer, president of the Progress & Freedom Foundation in Washington, DC, says he hopes the justices remain consistent and strike down the California law, too.
“I hope the Supreme Court is taking this case to affirm the free speech rights of game creators and users, and not to overturn ten years of solid, sensible lower court decisions granting video games the same First Amendment protections as books, film, music, and other forms of entertainment,” Thierer said.
“Government regulation of game content is unnecessary because parents have been empowered with sophisticated video game parental controls and a highly descriptive ratings system that is widely recognized and easy to use,” he continued. “Lawmakers should focus their efforts on making sure parents are better aware of existing tools and ratings instead of trying to censor game content in such a plainly unconstitutional fashion.
“Let’s hope the Supreme Court affirms that educational approach and the Ninth Circuit’s decision at the same time,” Thierer said.
‘Reluctant to Expand’ Restrictions
Mitchell Langberg, a First Amendment attorney at the Los Angeles law firm Brownstein Hyatt Farber Schreck, notes federal courts have been reluctant to grant the government the power to regulate speech based on content, even for the sake of protecting children.
“With the exception of pornography, the Supreme Court has aggressively protected First Amendment rights at the expense of regulation,” Langberg said. “The Supreme Court has been reluctant to expand the areas of less-protected speech, and courts across the country have refused to do so in the context of violence. The Supreme Court has also made clear that children have First Amendment rights.”
Langberg adds the high court’s recent ruling upholding the right to sell videos of animal cruelty is not good news for those who support California’s video game ban.
“I think this Supreme Court is likely to see the video game law as an improper encroachment upon First Amendment rights, affirm the 9th Circuit, and strike down the law,” he added.
Jim Lakely ([email protected]) is co-director of the Center on the Digital Economy at The Heartland Institute and managing editor of InfoTech & Telecom News.