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California game law struck down

Ruling barring state's attempt to regulate violent games strikes a far different tone from industry's previous court victories.


The Entertainment Software Association and Entertainment Merchants Association have won a number of lawsuits challenging laws regulating violent or sexually explicit games in states like Illinois, Michigan, and Louisiana in recent years.

Today they won another one, as US District Judge Ronald Whyte sided with the trade groups in their suit to overturn a California game restriction law. The two groups had already been granted a preliminary injunction to keep the law from going into effect in December of 2005.

However, whereas past judges seemed to side enthusiastically with the trade groups and their arguments that games are protected under the First Amendment's right to free speech, Whyte's decision had a very different tone to it.

"The Act regulates video games, which, even though mere entertainment, are nonetheless protected by the First Amendment," Whyte wrote in his decision, adding, "Expression is not outside the protections of the First Amendment 'simply because it is base and malignant.'"

While the judge in the Louisiana case mocked the evidence presented by the state to show that games can have harmful effects on minors (going so far as to put the word "evidence" in quotation marks), Whyte was more swayed by California's argument.

"This court is not as doubtful as other courts have been as to the legislature's power to restrict the access of minors to violent video games or as skeptical of [the state's expert witness] Dr. Anderson's conclusions," Whyte wrote. "The legislature does have the enact legislation that limits a minor's First Amendment rights if the legislation can be shown to truly protect a minor's psychological and physical well-being and is narrowly drafted to pass strict scrutiny."

However, Whyte ultimately ruled that the state's attempt to legislate games was unconstitutional for many of the same reasons as the judges in other cases.

"However, at this point, there has been no showing that violent video games as defined in the Act, in the absence of other violent media [emphasis in original], cause injury to children," he wrote.

He continued, "The court, although sympathetic to what the legislature sought to do by the Act, finds that the evidence does not establish the required nexus between the legislative concerns about the well-being of minors and the restrictions on speech required by the Act."

In a statement on the ruling, EMA president Bo Andersen called the decision a foregone conclusion.

"It was inevitable that the federal district court would find the California video game restriction law unconstitutional," Anderson said, "as eight similar laws around the country have been overturned in the past six years. We informed the legislature that this would be the eventual result when it was considering the law, and it is indeed unfortunate that legislature ignored the prior cases.

"It is now time for the California legislature to move beyond political grandstanding and accept the video game industry's invitation to work with them to educate the public about video game ratings and encourage parents to utilize those ratings when selecting video games for their families."

[UPDATE]: ESA spokesperson Dan Hewitt issued the following statement on the ruling: "The computer and video game industry leads in providing caregivers the most comprehensive and effective information and tools to ensure the entertainment children enjoy is parent-approved. As such, the Entertainment Software Association is pleased with today's permanent injunction ruling as it cements nationwide judicial consensus that our self-regulatory efforts work and attempts to regulate computer and video games are unconstitutional. We look forward to the opportunity this ruling now affords us and invite legislators, community leaders, and family advocates to raise awareness and usage of the resources we provide."

[UPDATE 2]: The bill's original author, former Assemblyman and current state Senator Leland Yee, has also weighed in on the judge's decision.

"I am shocked that the Court struck down this common-sense law," Yee said in a statement. "AB 1179 worked to empower parents by giving them the ultimate decision over whether or not their children should be playing in a world of violence and murder."

Yee also noted the change in tone from previous judicial rulings on the subject, citing the year-plus deliberation time before an opinion was handed down as a sign that "the ever-growing body of evidence that violent video games are harmful to children is getting harder and harder to ignore."

"We simply cannot trust the industry to regulate itself," Yee said. "I strongly urge the Governor and the Attorney General to appeal this decision to a higher court and to the Supreme Court if necessary until our children are protected from excessively violent video games."

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