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Violent game law falls in Supreme Court

Highest court in the land sides with industry as six-year legal battle over selling violent games to children in California comes to a close.


The Supreme Court today sided with the gaming industry in the case of Brown v. Entertainment Merchants Association (formerly Schwarzenegger v. Entertainment Merchants Association), ruling that a California law preventing retailers from selling violent games to children was unconstitutional.

The fight over California's game law has been playing out in the courts since 2005.
The fight over California's game law has been playing out in the courts since 2005.

In a decision penned by Justice Antonin Scalia, the Court ruled, "The most basic principle--that government lacks the power to restrict expression because of its message, ideas, subject matter, or content--is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test."

Scalia went on to note that the US has no tradition of protecting children from violent media, calling California's claim that the interactivity of games makes them a special case "unpersuasive." However, he did acknowledge that the substance of violent games was often lacking when compared to the often-violent literary classics the industry has held up to make its case.

"Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat," Scalia ruled, "but these cultural and intellectual differences are not constitutional ones."

"For better or worse, our society has long regarded many depictions of killing and maiming as suitable features of popular entertainment, including entertainment that is widely available to minors," Justice Samuel Alito concurred.

The decision was 7-2, with Justices Clarence Thomas and Stephen Breyer filing dissenting opinions.

In his dissenting opinion, Justice Thomas said the First Amendment of the Constitution was never intended to give minors the right to access speech against the wishes of their parents or guardians. "The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children," Justice Thomas wrote. "It would be absurd to suggest that such a society understood 'the freedom of speech' to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors' parents."

Thomas pointed to the patriarchal family unit held up by the Puritans as an example of attitudes the country's founding fathers would have had toward their children, noting, "Puritans thought children were 'innately sinful and that parents' primary task was to suppress their children's natural depravity."

As for Justice Breyer's dissent, he objected to the notion expressed by Justice Alito that the law was unconstitutionally vague compared to existing sex-related obscenity laws that have been ruled constitutional.

"Why are the words 'kill,' 'maim,' and 'dismember' any more difficult to understand than the word 'nudity,'" Breyer asked.

Breyer also agreed with the state of California's argument that the interactivity of games made them fundamentally different from books, movies, or other media. He also agreed that the research the state presented made a compelling case for the restriction of violent games, calling its evidence "considerably stronger" than that used as the basis for current obscenity laws to show that sexual depictions could be harmful to minors.

The bill sought to ban the sale or rental of "violent video games" to children. A "violent" game was defined as a "game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being."

Under the law, retailers that sold such games would be subject to a $1,000 fine. The bill would also have required "violent" video games to bear a two-inch-by-two-inch sticker with a "solid white '18' outlined in black" on their front covers. That's more than twice the size of the labels that currently adorn game-box covers and display the familiar Entertainment Software Rating Board (ESRB) rating.

Shortly after California Assembly Bill 1179 was signed into law by Governor Arnold Schwarzenegger in 2005, it was challenged in court before it could take effect. In 2007, the circuit court judge who struck down the law as unconstitutional admitted he was "sympathetic to what the legislature sought to do." Last year, an appellate court judge backed up the original ruling.

For more, check out the Supreme Court's full decision, as well as GameSpot's extended feature coverage of the Supreme Court case.

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