Supreme Court to enter fight over violent video games

By Robert Barnes
Washington Post Staff Writer
Tuesday, April 27, 2010

Fresh from deciding one major free-speech challenge last week, the Supreme Court said Monday that it will take up another: whether states may forbid the sale of violent video games to minors.

California says the court's 1968 decision that states may restrict the sale of sexually explicit materials to minors should be extended to the violent images in video games such as Grand Theft Auto. Other states have passed similar laws, but all have been shot down by federal courts that say the Supreme Court has never authorized such an expansion.

The U.S. Court of Appeals for the 9th Circuit said the same thing about California's law. The state "is asking us to boldly go where no court has gone before," Judge Consuelo M. Callahan wrote for a unanimous three-member panel. "We decline the state's entreaty" to "redefine the concept of obscenity under the First Amendment," it added.

That the Supreme Court will take on the task -- its first look at the First Amendment protections afforded computer and video games -- came as something of a surprise after last week's action. The court voted 8 to 1 to strike down a federal law that outlawed the sale of videos depicting acts of illegal animal cruelty, saying it was unprepared to carve out another area of speech from First Amendment protection.

California's case raises the additional issue of how far legislation may go to protect minors from the harm its says results from exposure to extremely violent video games.

Gov. Arnold Schwarzenegger (R) praised the court for accepting Schwarzenegger v. Entertainment Merchants Association, which will be argued during the court term that begins in October.

"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," Schwarzenegger said.

The video-game industry had urged the high court to let the appellate court decisions stand.

"In over fifty years of obscenity jurisprudence, this court has never applied the obscenity doctrine outside the context of sexual speech," said a brief filed by game producers. "What the state proposes in this case would effect a sea change in the permissible regulation of all media -- including books, movies, and television programs -- that contain violent content and are accessible to minors."

Michael D. Gallagher, president and chief executive of the Entertainment Software Association, which represents U.S. computer and video game publishers, issued a statement pointing to the court's decision last week in U.S. v. Stevens that "the First Amendment protects all speech other than just a few 'historic and traditional categories' that are 'well-defined and narrowly limited.' We are hopeful that the Court will reject California's invitation to break from these settled principles."

California's law, passed in 2005, prohibited the sale or rental of violent games to anyone younger than 18. It defined such a game as one that includes "killing, maiming, dismembering or sexually assaulting an image of a human being" in a way that a reasonable person would find appeals to a "deviant or morbid interest," is patently offensive, and lacks "serious literary, artistic, political, or scientific value for minors."

Retailers could have been fined as much as $1,000 for each violation.

But judges never allowed the law to go into effect.

The appellate court was unwilling to extend the obscenity standard and said California had not proved that the restrictions were necessary to prevent harm to minors. None of the research relied upon by the legislature, the court said, "establishes or suggests a causal link between minors playing violent video games and actual psychological or neurological harm."

In other words, it said, the studies showed that violent youths have played violent video games, but they did not prove that it was the video games that made the youths violent.

Video-game dealers said California and other states that have enacted similar laws are asking the court to change a standard that has worked in protecting children from obscenity.

"Sex, unlike violence, is a subject uniquely considered to be outside children's purview," the group said in its brief. "Violence, on the other hand, is a regular part of children's literature and stories . . . as anyone familiar with the classic fairy tales" is aware.

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