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Supreme Court rejects ban on sale of violent video games to minors

Grand Theft Auto IV

The U.S. Supreme Court this morning struck down a California law that would have banned the sale or rental of “violent” video games to minors, ruling that such a restriction violates the First Amendment.

With a 7-2 vote, the justices upheld a decision by the Ninth Circuit Court of Appeals to overturn the 2005 law, which never went into effect because of legal challenges but would have imposed $1,000 fines on businesses that sell violent games to those under the age of 18. According to ABC News, nine similar laws were passed across the nation, but all were blocked.

“Like books, plays and movies, video games communicate ideas,” Justice Antonin Scalia said in the courtroom. “The most basic principle of First Amendment law is that government has no power to restrict expression because of its content. [...] There is no tradition in this country of specially restricting children’s access to depictions of violence. Certainly, the books we give children to read — or read to them when they are younger — have no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed.”

The high court felt that the video-game industry’s voluntary ratings system provides adequate guidance for parents to screen content.

Scalia was joined in his opinion by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. applauded California’s efforts to address “the effect of exceptionally violent video games on impressionable minors,” but voted to strike down the ban because the law was too broad. Justices Clarence Thomas and Stephen Breyer filed separate dissents, with Thomas arguing that minors have no free-speech rights. Breyer, meanwhile, insisted the law was constitutional as it stood.

The Comic Book Legal Defense Fund, which had filed a friend-of-the-court brief arguing against the law, celebrated the court’s ruling.

“We’re extremely pleased that the Court’s decision preserves the First Amendment rights of the users and creators of video games, and that they resisted California’s desire to establish new categories of unprotected speech,” Executive Director Charles Brownstein said in a statement. “We’re also gratified that our discussion of the comics industry’s painful experience with moral panic and legislative meddling helped inform the positive outcome we see this morning.”

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6 Comments

Simon DelMonte

June 27, 2011 at 11:33 am

So, does this mean that you can’t stop a 12 year old from buying a Playboy? Or attending an R-rated film? Or is it simply that a store has the right to refuse to sell such things under commonly accepted codes of conduct, but cannot be punished for it? Or that are we seeing different standards for sex and for violence?

I don’t ask any of these questions facetiously. Clearly, if Scalia and Ginsburg agree, it’s a bad law, and I have long felt you err on the side of the First Amendment on such cases anyway. But I would like to have a better sense of how a balance is struck between freedom of speech and the concerns of a community about its youth.

Paging Bob Ingersoll….

The problem with the law was (and curious that it hasn’t really been brought up) is it would have given the state near full power on what they consider obscene for minors and they could fine a company if they didn’t follow those guidelines. The problem with it was the state was making those guidelines and what they considered obscene isn’t what maybe you or me might consider it. It was too much of a broad range.

Of course, it should be on the parent, not up to the state to figure that out.

I agree, Lando. This is pretty much what happens with laws advancing what I’ll go ahead and call ‘censorship’. Any rational court will declare it too vague, due to differing standards of what constitutes obscenity. And, yeah, it’s the parent’s responsibility, not the state.
I still remember the ‘Terry Rakolta’ protest (of Married With Children). When my wife and I saw her on the news saying that parents shouldn’t have to be responsible for what their kids see, we looked at each other in disbelief and cracked up!
When we cede power to the state to decide what can and can’t be seen by children or adults, we’re allowing ourselves to flirt with fascism.

“So, does this mean that you can’t stop a 12 year old from buying a Playboy? Or attending an R-rated film? Or is it simply that a store has the right to refuse to sell such things under commonly accepted codes of conduct, but cannot be punished for it? Or that are we seeing different standards for sex and for violence?”

Not sure about the others, but there are no laws regarding film ratings. Those aren’t mandated by the government, which is what this ruling was about (laws for selling games). As far as I know video game ratings are voluntarily implemented as well.

Does Thomas not understand that it’s the free speech rights of the video game makers at issue, and not those of minors?

“Or that are we seeing different standards for sex and for violence?”

Basically, yes. There is a long legal history in the USA regarding depictions of sex and what is “obscene.” For adults there really isn’t legally a definition of “pornography” but what they deal with is “obscenity.” The current legal status of obscenity was more or less solidified in the 1970s and gave us the Ginsburg Test for obscenity. Since then that test has been used as the template for restricting minor’s access to pornography.

When it comes to violence, however, there has never been any restrictions on violence in the USA. So to do so now would create an entirely new exception to the First Amendment. To do that would be a huge deal and would require a seriously compelling reason — which doesn’t really exist.

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