Joysticks and the First Amendment

Sunday, October 31, 2010; 7:36 PM

IF STATES can prohibit minors from buying Penthouse, Hustler and Playboy, why not "Grand Theft Auto" or "Mortal Kombat"?

That is the novel question that will confront the justices on Tuesday when they evaluate a California law designed to prevent juveniles from buying or renting violent video games.

The law designates a game as violent if it "appeals to a deviant or morbid interest of minors," lacks "serious literary, artistic, political, or scientific value for minors," and allows minors to "inflict serious injury" that is "especially heinous, cruel, or depraved." These passages echo some of the language the Supreme Court used to uphold statutes forbidding the sale of pornography to underage youth.

The California law also requires violent video games to be labeled "18" - meaning that no one under that age may buy or rent it. Retailers could be fined $1,000 per violation, although they could avert penalties if they were duped by a minor with a fake ID. Parents or legal guardians may purchase these games for their children; the law does not affect adult access and does not prohibit manufacturers from producing or marketing such products.

The law has not taken effect because federal courts in California struck it down, concluding that the state's efforts amounted to censorship in contravention of the First Amendment. The lower courts held that the more relaxed legal standard the Supreme Court used to uphold laws banning pornography sales to minors did not apply to violent video games. The high court should reject this analysis.

Minors are not without rights, but their rights are routinely and justifiably restricted in ways that would violate the Constitution if applied to adults. Take, for example, legal prohibitions against selling alcohol, tobacco products and, of course, pornography to juveniles.

Opponents of the California law argue that the video game industry's voluntary rating system and its agreement with major retailers to enforce a ban on sales of violent games to minors already achieves the state's intended purpose. But the voluntary system is just that - voluntary - and many small and independent stores are not included.

Critics also point out that many game consoles include parental controls that could be used to block violent games. This also is an important tool, but few would argue that laws against selling alcohol to minors would be unnecessary if every household had a liquor cabinet with a lock.

That is not to say that the California law is perfect. For example, it does not specify who is responsible - the manufacturer? the retailer? - for affixing the "18" label to games. And its definition of "violent video game" could be deemed too vague to pass constitutional muster. The justices should give states the flexibility to enact restrictions on video game sales to minors, even if the California law proves unacceptable.

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