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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Avatar image for Armyboy5

There will always be people in the world who will try to take the fun things away from you. No matter what it is that makes you happy.

Avatar image for RevLux

At some point we as parents need to take responsibility for our own actions, or inaction, and stop blaming everything on video games or schools or whatever the scapegoat of the month is.

Avatar image for kujel

Another thing that helps is not to raise your kids to believe in a god cause kids who do are more gullible and have a harder time separating fantasy from reality.

Avatar image for kujel

War actually confers lots of benefits to society like advancing science and medicine, helps control the global population, just to name a few.

Avatar image for dbene

If a state can't ban violent video game sales to minor then they also should not be able to ban pornography sales to minors either.

Avatar image for Hydra270

if people cant tell the difference from games and life then they should be put down. even as kid when i played them i could tell difference only drones cant tell.

Avatar image for RevLux

<< LINK REMOVED >> Everyone knows that violence didn't exist before video games began portraying it...What's that? Oh the world was already a violent place long before the first violent video game? Never mind then.

Avatar image for ptown58

Some are saying that violent video games are good for violent people because instead them going out out and getting in trouble they are inside playing video games and the more gaming the better I say.

Avatar image for ptown58

@Deathblow3 ...."you cant compare the two no matter how much you want too they have no common traits. when they do have some let me know." I think that pretty much sums it up, thank you.

Avatar image for Darkefka

@AltoShadow13 Then by all means do it, if i'm begining to threat other's life do it, but as long as my liberty dosen't hinders other's let me have my liberty of doing WHAT I WANT either is it to listen Ozzy Osbourne and play GTA at 4 years old, or going to the church... after that we call ourselves ''free''...

Avatar image for ninjafrogs97

" Against the wishes of parents". Then why did the parents buy the game in the first place?

Avatar image for majema007

It's great to see this law fall because it shows games deserve equal rights with speech just like in movies, books, TV etc. Parents need to watch what their kids play since its their job, not the goverment. If any soccer mom thinks that playing violent games are bad for kids, let me say I played Condemned 2 when I was 10 which is a VERY violent game, but I was taught that games are a work of fiction, so I knew not to do anything the game shows me that is wrong. Violent games exist to treat a certain audience like adults and at times, they serve as great stress relievers and not so much much of a inspiration for violent outbreaks (which are often cause by being a victim of bullying, parents abusing their kids, etc). In the end, if you can't even simply see what your kids play, why even bother having kids in the first place? You can simply use the parental options from their system and restrict games depending on the ESRB or level, thats all.

Avatar image for JosephShrike

This was bad ruling. I'm all for free speech, probably more then a lot of people, and I fully agree that parents have a responsibility for what their kids do, but at the end of the day, there's absolutely no restriction of free speech with a law that doesn't allow the sale of violent/sexually explicit video games to CHILDREN. Banning them completely, absolutely, but this was not about that. If anything, it requires parents to have more responsibility because they actually have to buy the game for their kids. There are some horribly violent games out there, and people should be held responsible if they make that content readily available to children.

Avatar image for SuperYeti22

Violent video games don't cause insanity. Know what does cause insanity? 2girls1cup.

Avatar image for kujel

Thank Satan I only watched 10 seconds of that video before I clicked away screaming. Nothing like that should of ever been filmed.

While I agree with Magus LaVay what happens between two concerning adults is their choice, I'd still prefer not to have even seen 10 seconds of that video.

Avatar image for SuperYeti22

@dalua360 Same principle applies with violence. If a kid had a mental problem or grew up with no moral values, and played lots of violent games, he could grow up to be a violent person, maybe even a murderer in worst-case scenarios.

Avatar image for deathblow3

@mario-nin-freak i will try to say this as simple as I possible can. you can not compare consumables the same as you would forms of art. you know movies, pictures, art, written or spoken word. as they can be put in your body and induce chemical reactions, when art can not cause un natural reactions or kill you instantly. though you can't die immediately from smoking you can from alcohol if you consume to much and the effects are faster and worse for kids. which is why we have laws to govern this and they are bad for every one. you cant compare the two no matter how much you want too they have no common traits. when they do have some let me know.

Avatar image for dalua360

@SuperYeti22 First of all, pornography is real, not a video game. Kids don't have such an easy way too see real footage of extreme violence as they have access to pornography (only if they like to research about it, which is another case). Tell me, which one is most likely to happen: Your kid to go out to the streets to kill someone because of a video game, or your kid grow up with a distorted morality due to the pornography he watches on TV or internet? Well, we don't have to pick a winner, both are bad for the kids, and just for an example, pornography can lead to rape in worst cases. I was just saying that video games aren't the priority right now, there are many other things to be done to protect our kids. If you don't think that pornography can ruin a kid's mind, I would suggest to you to research about it. It's pretty dangerous to someone who haven't any kind of adult guiding to grow up with good moral values

Avatar image for ScilentKnight

I have to say I agree that it is the parents responsibility to censor things. However, given the fact that most of the supreme justices probably have kids, it's also very shocking to me that it was a 7-2 decision.

Avatar image for mos2000

The best b-day gift I can remember (sad enough). Interesting though. I hate to get all political here - but I expected a more conservative leaning court to side in favor of this. Maybe the fact that Rush Limbaugh was totally against this helped??? Nevertheless, I'm happy. As a parent who works an avg of 60 hours a week, filtering this stuff is my job. There's enough tools out there to make this happen. P.S. @Thunderstarter - EXCELLENT!

Avatar image for cheater87

Glad the US didn't become the next Germany/Australia in terms of censorship of content.

Avatar image for mario-nin-freak

@deathblow3 Cigarettes and beer are good examples, and they are like this. Yes, they are directed towards adults, but I sure hope x rated films are! I really don't understand your point? Can you say it directly?

Avatar image for DarknautXXX

Thunderstarter I totally agree! You deserve 100 thumb-ups for that comment.

Avatar image for kevorksalloum

Who cares as long as I can buy video games I'm not complaining :P

Avatar image for Thunderstarter

As about 500 posters said before me; Parents, this is YOUR responsibility. Educate yourselves about the games your child is playing as ask yourself if you want them exposed those games. I wasn't allowed to own a rated M game until I was 15, and that game was obtained AFTER my parents did some serious research into it. That game was RE4 and it's one of the best titles I've ever played, however I would NEVER let my 10-year-old (my future 10-year-old that is :P) play it. Some things are too graphic for kids, and parents need to make sure what they're handing to their child is age-appropriate. It may have a "17+" label on it, but if you feel your child can handle it (like my parents did and now do...even though since I turned 17 they have no say in the matter) let them have it, and if you don't think they can simply say "no. Wait until you're older".

Avatar image for deathblow3

The Supreme Court, in a 7 to 2 decision, struck down the law prohibiting selling of violent video games to children. The court claimed that it would not create a new category of speech beyond the protection of the First Amendment since depictions of violence has never been subject to government regulation. Additionally, Justice Alito said the California law was too vague and therefore could not be enforced. Justice Alito went so far as to say that video games like Mortal Kombat is constitutionally the same as reading Dante, that “these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy…”

Avatar image for deathblow3

@Wormkid_64 true violence and gore isnt needed in games but that is not the only thing that makes games m rated. maybe back in the day that was true but adult content is also m-rated heck life is m-rated. so a game depicting war an not even acurately by the way because the stuff you see in war will make you lose your lunch would. i like shooter or war sims with out any blood in the game or gore i still have to shoot something and that act alone makes it m-rated. i dont know what you play but say good by to uncharted series, tomb raider, gears even with no gore it would be m rated, god of war, all fighting games fall under this law even the blood less street fighter, resident evil, all current shooters since the laws states any humanoid likeness, legend of zelda, elder scrolls, gta since the games is based on a crime grand theft auto. it as simple as this what the judge said........ cont.

Avatar image for geost91gr

A law or a court order is there to set a guideline. But if parents can't figure out which game is appropriate for their children and act accordingly, then no law can do so.

Avatar image for J4m3sR4n0r72

@Squall101 Don't blame the ESRB, blame poor parenting. The ESRB ratings are there to help parents decide which games are appropriate for their child or children at the child's specific age. Responsable parents would take the ESRB ratings seriously, not ignore them.

Avatar image for cheater87

<< LINK REMOVED >> and to censor games that are too graphic.

Avatar image for deathblow3

@mypony89 no your children are only being allow access to what you let them. it is your sole responsibility to monitor them from inappropriate things games included. pictures, images of real life disaster, movies and music also falls under this ruling past by the government and are all self governed. what do you want life to be like the movie equilibrium and have control of what you see, do & think. some people need intervention with their kids i do not.

Avatar image for deathblow3

@mario-nin-freak actually cigs and beer is nothing like this. a better comparison is x rated film yes you can get them but not in major retail. and this is where most game money is made. again prime example ao games they do exist but have you ever seen one. also even though the porn industry is big, the per capitol gain from a single movie is way smaller that a major motion picture a single good movie will gross 50 times that of a single porn or x rated movie heck even nc-17 is a death blow for a movie. and this is how you have to look at it as games are closer to movies than cigarettes or beer which is intended for the sole purpose of adult consumption and not related at all to free speech.

Avatar image for mypony89

I see what our children are being allowed access to as something that is just as important as anything else since it is our children who are going to grow up to be the future of this country. It is the parents responsibility to restrict their children from purchasing materials that may be harmful for their upbringing however VendettaSRB said, they will find other ways of purchasing what they want. That being said however, doesn't mean that the government should allow stores to sale items that are potentially harmful to the psyche of the children. Just as a child pornographer will find ways of making child pornagraphy the government shouldn't allow them to do it. I am an avid gamer. I love games, but I love my 4 children more and I believe there are games out there which are inappropriate for certain ages do to their materials. Grand Theft Auto for example is a game that was given great reviews for good reason but it isn't a game that my children need to play do to the influence it "may" have on them. I know I'm probably going to be given plenty of thumbs down for this but I had to say something.

Avatar image for Vendetta162

I see, government's more concerned about video games than the nation's actual problems. Am I wrong?

Avatar image for burgo81

instead of going after the game industry and trying to silence their voice, why not go after those jesus nuts that protest outside of funerals of service men and women who died in the gulf war

Avatar image for VendettaSRB

Freedom of speech 1 Government 0 Jesus, haven't we learned already? If the kid wants something, do you think anything can stop him in pursuing that cause? :D We've all been kids back in the days.

Avatar image for Wormkid_64

@ Jaxith Well that isn't what I mean.I don't deny "M" games can be good games.There are some games I'd LOVE to play if only the gore and such were cut out.Is it being rated M that made that game you liked great?Is an "M" what made any game great?No the same game could have the same story and gameplay without the guts and sexual content. @ xApollo It's not a stereotype.Is there or is there not blood,gore,sexual content,and excessive violence in an M rated game?It isn't the rating holding me back,it's those bits of content that earn the rating.I don't consider those necessary ingredients in a fun game.And it isn't the conflict I stay away from,nor the broad meaning of violence.In its broadest meaning,Mario would be violent because you jump on the poor turtles' heads,and in Lego Batman you punch.In Metroid Prime you shoot aliens.Of course that's a thing you have to accept or just not play games.I choose to accept it up to T-rated games,and even some of those I pass on. My point was,the things that make a game M-rated are not needed to make it fun,or else it's just a very primal game,based only on violence and sex,catering to the primitive side of people.Even if a game goes beyond that,and is a truly great game,I don't want to have to see or imitate those things to get to play it.If you want to,fine.It's up to you. I just say to the parents,make sure you know what your kids are playing,and do your jobs.Don't try to blame the game or the government if something goes wrong.

Avatar image for DP1130

I believe it is NOT up to the government or the entertainment industry to tell the kids what wrong or right. The products the gaming, movie, music, ect. ect. industries release are not made for just kids. Period. Parents have the willing choice on how to bring up thier kids and monitor what activities they are participating in. If a parent cant be bothered, that thier fault and not corporate america job/responcability to pick up the slack. Remember, everyone one of us enjoys this stuff, at the ripe old age of 35, I want drugs, sex, and rock n roll in my entertainment. Just like food, the messages and stories the industry brings need spice. Don't deprive us because a parent cant be bothered to monitor thier own kids.

Avatar image for paxis85

while i certainly agree that it should not be called unconstitutional on the basis of free speech, there should be some kind of benchmark as to what children ought to be exposed to. While i love the games i play like mass effect or dragon age, i certainly wouldn't want my kids playing them. Although i agree with the decision, i hope that this is the start of legislative movement pointing to better safeguards for kids. I'm not just talking about ratings but actually placing stronger sanctions and controls on the issue.

Avatar image for Squall101

Then why rate games from the start? The ESRB ratings are just a waste of money and effort.

Avatar image for erix43

The only reason this worked is because the video game industries paid off people of the court. Even I would take money ( If I were a judge ) for this one if I was offered it by some a**hole from Activision to shut the f.... up about this one. Look at at the video game industry, It's BIG money! Even the greedy lawyers want a piece of this action in court haha!

Avatar image for raymondcs123

Puritans also started the Salem Witch trial, burning hundreds of innocent people. All thanks to a cynical, "mature" society. Judge.

Avatar image for Takeno456

This is a victory for gamers, concerned parents and free speech advocates everywhere. I am glad for once the government had the foresight to be able to see that this was the right decision.

Avatar image for VarietyMage

(part 1 / 2) Actually, here's the distinction. Most of these people let their kids watch WWE wrestling, horror movies and the evening news. That is, violence, gore, sexual assaults and death. They don't care that their kids are exposed to violence. They care that their kids can simulate it and have fun doing it. However, they seem to have given up the ability to teach their kids the difference between fantasy and reality. Example: In GTA, you can run over pedestrians with a car, and have a good laugh as they fly. If you drive on no-shoulder roads that bicyclists take and slow everything to a crawl during rush hour, you know how good that can feel. However, run over them in real life, and you WILL go to jail, and if you resist, you will be tasered or shot dead. Which one is fantasy and which one is reality? I know the difference, and I hope their kids do, too. The parents are getting lazy in their duties. They'd rather let the government ban things they don't like (violence, evolution, etc), rather than teach their kids right from wrong. In one respect, the devolving of full-time jobs with benefits into multiple part-time jobs means everyone is working longer hours to make the money they used to make, but that is no excuse for not teaching your kids the difference between fantasy and reality.

Avatar image for VarietyMage

(part 2 / 2) And let's face the hell are your kids buying an M-rated game, and you are NOT knowing about it? Where did they get the money (or the credit card)? Why didn't you snap up the game, and take it back to the retailer? Where were you when this was going on? Kids need to understand violence and put it in perspective, as demonstrated by their parents. As adults, they will see it in their lives every single day. They had better know how to react to it, and not under- or over-react. Asking some teenage clerk at a game retailer to be some other kid's parent is asking too much (especially if that clerk is actually playing the game themself). This law failed, as it should. Good riddance.

Avatar image for Lord_Daemon

@ Dirk13 - It's actually not against the law to sell "R" rated movie tickets to a minor as the ratings system is purely voluntary and is not something a movie has to apply for. The restriction of not selling to minors is strictly self-imposed by the various large movie chains who typically also don't play movies that haven't acquired a rating from the MPAA.

Avatar image for vidar77

I, as a parent, play games with my daughter. I am totally aware of everything she plays, and everything she watches. I don't need ANYONE, government or otherwise, to tell ME what is appropriate for her. END OF STORY. THANK YOU.

Avatar image for metaltorn

I dont know how this even landed all the way to the supreme court, its a simple but pretty bulletproof concept...ID thats all u need or the parent approval of the purchase... just wasting tax payers money on pointless things

Avatar image for zukiyama

@Dirk13 well its always been up to the parents to supervise what their kids play/watch. the ESRB ratings is just a part of it all. i was playing halo when i was 7ish, dont see what all the fuss is about now let alone have a seperate law for a single state. Plus if this law did go through with no hype, theres sure to be a ton of "freedom of expression craziness". and yea @SWM1983 at retail stores like gamestop they do tell the parent to get ids and stuff and tell them about the disclaimers and such. I think it was just a useless case by the california government

Avatar image for Spincut

I dunno, I'm confused, SHOULDNT it not be ok to sell a say, M rated game to minors? I mean, I don't like the "squares" and "jack thompsons" keeping us down, but it does seem like if a game, like a movie, is rated M for mature or somesuch, then it should be illegal to sell it to people below the set age, just like it's illegal to sell rated R movie tickets to kids below a certain age. Or was that not exactly what the bill was about? I guess that's the part that confuses me a bit. Oh, and Clarence Thomas is still a chode.