Violent Video Game Ban for Kids to Get Hearing
Henry K. Lee
San Francisco Chronicle
April 27, 2010
The U.S. Supreme Court agreed Monday to decide whether California can ban the sale of violent video games to minors, a law that lower courts have declared an unconstitutional restriction on free speech.
The high court will review a decision by the Ninth U.S. Circuit Court of Appeals in San Francisco to throw out the ban on the grounds that government has no authority to restrict even the most violent games. The appeals court rejected proponents' arguments that graphic games can cause youths who play them to behave aggressively, saying research offered no proof.
The ban, sponsored by state Sen. Leland Yee, D-San Francisco, became law in October 2005 but has never been enforced. It would bar the sale of an interactive video game to anyone under 18 if the game was so violent, it was "patently offensive," according to prevailing community standards for minors, and lacked literary, artistic, political or scientific value.
Violent video games would carry a large "18" label on their packages. Anyone who sold such a game to a minor could be fined as much as $1,000.
Federal courts have overturned similar laws in Oklahoma, Louisiana, Minnesota, Michigan, Illinois and the cities of St. Louis and Indianapolis.
Yee said Monday, "I am hopeful that the high court will determine our law to be constitutional, but, regardless, states are now certain to receive direction on how to proceed with this important issue."
The Entertainment Software Association, a video industry group that took part in the lawsuit challenging the law, said the state has no evidence that virtual violence causes real-life mayhem.
"Courts throughout the country have ruled consistently that content-based regulation of computer and video games is unconstitutional," association President Michael Gallagher said. "Research shows that the public agrees, video games should be provided the same protections as books, movies and music."
The state argued that violent content should be judged by the same obscenity standards as sex. Just as the government can prohibit the sale of explicit pornography to minors, state lawyers contended, it should be allowed to establish an adults-only category of ultra-violent video games.
In February, the appeals court disagreed. A 1968 U.S. Supreme Court ruling that allowed tighter restrictions on selling explicit materials to minors than to adults applies only to sexual content and not to violence, the appellate panel said.
"The Supreme Court has carefully limited obscenity to sexual content," Judge Consuelo Callahan said in the 3-0 ruling. "We decline the state's invitation to apply the (same) rationale to materials depicting violence."
Callahan said video games "are a form of expression protected by the First Amendment."
The appeals court also said the state has failed to demonstrate the need for a ban on sales to minors, noting that the industry has a voluntary rating system that includes an adults-only category.
The Supreme Court's decision to hear the case comes a week after the high court struck down a federal law banning videos showing animal cruelty.
But Yee said that if the high court had thought the two cases were similar, it "would have thrown out our law as well. Clearly, the justices want to look specifically at our narrowly tailored law that simply limits sales of ultra-violent games to kids without prohibiting speech."
Margaret Russell, a professor of constitutional law at Santa Clara University School of Law, cautioned against making comparisons between the two cases. Although both have to do with violence, she said, the animal-cruelty video case "really focused on how overly broad the law was, rather than the core content."
Still, the high court made clear in both cases that it was intent on examining First Amendment issues, Russell said.
"The animal-cruelty video case reflects the Supreme Court's reinforcement of the principle that carving out exceptions to the First Amendment is a risky and flawed approach to solving the very serious problem of violence in our society," Russell said. "I regard the court's decision to examine the California violent video game law as another indication of its concern with the constitutional constraints on limiting expression, even if that expression is disturbing and controversial."
The court will hear arguments this fall in the video-game case, Schwarzenegger vs. Video Software Dealers Association, 08-1448.