Proposed ban puts justices in 'Mortal Kombat' ring

By Robert Barnes
Washington Post Staff Writer
Wednesday, November 3, 2010

At the end of an animated and sometimes contentious Supreme Court argument Tuesday about whether the Constitution protects an emerging new art form - the violent video game - only one thing was clear:

Torturing or maiming a Vulcan is not enough to trigger California's law prohibiting the sale of such games to minors. The damage, the state's attorney told the court, has to be done to "an image of a human being."

Other than that, it was a struggle on the bench between justices who indicated that California has a right to keep juveniles from buying games with images of almost unimaginable brutality, and others who think that the Constitution doesn't allow the government to restrict violent depictions.

It was the court's first examination of a phenomenon that has reached into two-thirds of American homes and spawned an industry that exceeds $10 billion a year. Social scientists debate the long-term impact of violent games, parents worry about a technology their children understand better than they do, and some states want to ban sales to juveniles, or at least to have the option in the future.

Modern technology and cultural trends are not always the court's strong suits. Crime novels, violent movies and rap lyrics all figured into Tuesday's argument, as the justices debated whether restrictions on the sale of sexual materials to minors should be expanded to include depictions of violence.

The argument's essence was captured in an exchange between Justice Samuel A. Alito Jr., who seemed sympathetic to California, and lawyer Paul M. Smith, who said the First Amendment protects his clients, the game producers.

"We have here a new . . . medium that cannot possibly have been envisioned at the time when the First Amendment was ratified," Alito told Smith.

"We do have a new medium here, Your Honor," Smith agreed. "But we have a history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling [and] our children are all going to be turned into criminals."

He mentioned congressional hearings in the 1950s about the dangers of comic books.

A majority of the justices appeared to have big reservations about California's law, which was passed in 2005 and signed by Gov. Arnold Schwarzenegger (R). The irony that the plaintiff had starred in "Conan the Barbarian" and "The Terminator" was noted in signs carried outside by gamer demonstrators. The law has been blocked by lower courts.

It would prohibit the sale or rental to anyone younger than 18 of a video game that allows a player the option of "killing, maiming, dismembering or sexually assaulting" a human image.

Borrowing from the court's obscenity jurisprudence, the game as a whole would have to be judged to appeal to the deviant or morbid interest of minors, be patently offensive to the community as it relates to minors and lack serious "literary, artistic, political or scientific value for minors." Each violation could result in a $1,000 penalty for retailers.

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