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Supreme Court Divided On California Videogame Law

November 3, 2010

The Supreme Court appeared divided on Tuesday over a California ban on the sale or rental of ultra-violent video games to minors. 

While at times expressing sympathy with the law, the justices emphasized that the ban faces a high constitutional hurdle before going into effect.

The law, approved by California in 2005, would subject retailers to fines of $1,000 for renting or selling videogames labeled violent to anyone aged 17 or younger.  The law defines a violent videogame as one depicting “killing, maiming, dismembering, or sexually assaulting an image of a human being.”

Although the ban applies to the direct sale of violent games to minors, parents would still be able to purchase the games for their children.

A lower court overturned the ban in 2007, ruling that it infringed upon the free speech clause in the First Amendment to the Constitution.  A higher federal court upheld that ruling in 2009, after which California Governor Arnold Schwarzenegger appealed the case to the Supreme Court.

California is arguing the case based on a 1968 Supreme Court decision that prohibited the sale to minors of magazines with images of naked women.  Lawyers for the state argue the videogame ban reflects a similar attempt to protect minors.

While the case of “Schwarzenegger v. Entertainment Merchants Association” offers a test of the First Amendment’s free speech clause, the high court has been reluctant to define free speech exceptions. Earlier this year, the court struck down a ban on so-called “crush videos” that show the actual deaths of animals.

Speaking during oral arguments in the current case, Justice Antonin Scalia said the California ban was an attempt to usher in a “brand new area” in which speech could be restricted due to violence.

“What’s next? Drinking? Smoking?” he said.

“Why is this particular restriction OK and not others?”

In a separate exchange, Justice Samuel Alito questioned lawyers representing videogame makers and retailers about the right states had to protect children from violence in videogames.

“Your argument is that there is nothing that a state can do to restrict access to minors to the most violent content?” Alito asked.

Paul M. Smith, a lawyer for the Entertainment Merchants Association, replied that California authorities “have not shown any compelling problem requiring a regulation,” and that there were no scientific studies showing negative and harmful effects on minors due to viewing violent videogames.

Chief Justice John Roberts hinted that he might be open to supporting the law, noting that “we have a tradition in this country… we protect children.”

“In these video games the child is not sitting there passively watching something. The child is doing the killing. The child is doing the maiming. And I suppose that might be understood to have a different impact on the child’s moral development.” he said.

Justice Stephen Breyer also appeared open to supporting the law, saying it made no sense to permit bans on minors from accessing pornography and not be able to block them from ultra-violent video games.

What if a video game depicted “gratuitous torture of children?” he asked.

“‘Now you can’t buy a naked woman, but you can go and buy that,’ you say to the 13-year-old. Now what sense is there to that?”

“Why isn’t it common sense to say a state has the right to say, ‘Parent, you want this for your child? You go buy it yourself,’” he said.

Justice Sotomayor cited the challenges with enforcing such a ban, noting that the law prohibits minors from purchasing video games that show violence to people.  What if, she asked, game designers simply made a few simple anatomical changes to the human beings depicted in the games?

“Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?” she asked.

Such changes would then make the game legal to sell to minors, said lawyers for California.

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