By Robert Barnes
Washington Post Staff Writer
Tuesday, November 2, 2010; 2:34 PM
Several Supreme Court justices strongly questioned during an animated argument Tuesday whether California's attempt to bar the sale of violent video games to minors could possibly meet constitutional muster.
But others noted in detail the graphic and sadistic nature of some of the games and wondered how it could be argued that a state could do nothing to keep such material out of the hands of young people.
The court will eventually decide whether video games, which are estimated to reach into two-thirds of American homes, are protected forms of artistic expression or the latest version of obscenity that should be kept from minors.
A majority of justices appeared to have major reservations about California's law. It would prohibit the sale or rental to anyone under 18 of a video that allows a player the option of "killing, maiming, dismembering or sexually assaulting an image of a human being" and has no serious artistic or literary value and appeals to a "deviant or morbid interest."
Justice Antonin Scalia led the aggressive questioning of Zackery P. Morazzini, a deputy California attorney general. Scalia said that violence in literature was at least as old as Grimm's fairy tales and that it has always been understood the First Amendment protects depictions of violence.
When Justice Ruth Bader Ginsburg questioned how the California law would be carried out and who would decide whether a video was deemed deviantly violent or simply violent, Scalia suggested:
"You might call it the California Office of Censorship."
Morazzini said California's interest was in helping parents keep some images from their children. He cited studies that have shown videos to be different from other media in that the player is actually involved in directing the violence depicted on the screen.
But other justices wondered where the line would be drawn.
"Could you get rid of rap music?" Justice Sonia Sotomayor asked. Justice Elena Kagan appeared skeptical of the idea that playing the games led to violent behavior, estimating that most of the Supreme Court clerks probably grew up playing the "iconic" video game "Mortal Kombat."
And several pointed out that California's law makes no distinctions among minors, be they 10 years old or 17.
But three justices - Chief Justice John G. Roberts Jr., Stephen G. Breyer and Samuel A. Alito Jr. - seemed particularly disturbed by the videos and the argument that states had no power to keep them from juveniles.
Roberts read a description of a game that involves the torture of schoolgirls. "We protect children from that," he said. "We don't expose them to that."
Paul Smith, attorney for the Entertainment Merchants Association, said the industry has already acted to keep the most violent games from reaching children, through labeling and parental controls on the machines that play the games.
But Breyer suggested states can go further. The law in question, he said, tells parents that if they want their children to have such games, they have to be the ones to buy them for the minors.
Several states besides California have tried to ban violent video game sales to minors, but courts have struck them down as a violation of the First Amendment. California's law was passed in 2005, but courts have blocked it from taking effect.
The case is Schwarzenegger v. Entertainment Merchants Association.