Supreme Court weighs censorship in violent video game case

Whether the Supreme Court chooses to uphold a California law that bans the sale of violent video games to minors could come down to the court's reluctance to create a new class of content outside the reach of the First Amendment.

The court heard arguments this week in Schwarzenegger vs. the Electronic Merchants Association, which concerns a 2005 California law that fines stores for selling games deemed "excessively violent" to minors. The law was struck down in federal court a year after its passage and a subsequent appeal by Gov. Arnold Schwarzenegger (R) to the 9th Circuit Court of Appeals was unsuccessful.

CNN legal analyst Jeffrey Toobin told Hillicon Valley that Supreme Court cases are often fairly predictable, but this case is unusual because it cuts across traditional ideological divisions. Toobin said if the law is upheld, video games will become the first product to be regulated entirely based on the violence of the content; previous regulations have limited distribution of content deemed overly sexual for youth.

"I think at least some members of the court are going to be very reluctant to extend censorship, as it will, to whole new areas," Toobin said, noting that Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia have in particular been "very suspicious of any attempts to regulate speech."

Indeed, during argument Scalia questioned the law's definition of what makes a game's violence offensive; the law defines excessively violent games as those "in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being" in a way that is "patently offensive," or appeals to minors' "deviant or morbid interests" while lacking "serious literary, artistic, political or scientific value."

"What's a deviant violent video game?" Scalia asked, noting that many of Grimm's Fairy tales include some very grim content. 

Justice Stephen Breyer argued the government should be allowed to protect children from games that depict "gratuitous, painful, excruciating, torturing violence upon small children and women." But his stance appeared to place him in the minority.

The EMA has advocated for self-regulation similar to the ratings system used by the movie industry, in essence arguing the current system is working and doesn't require a legislative fix. The Entertainment Software Ratings Board currently rates video games for content, and many stores restrict the sales of games marked "Mature" or "Adults Only" to minors. However, those restrictions are voluntary.

"One reason the motion picture business has been so vigilant about policing its own ratings is they wanted to avoid exactly this situation," Toobin said. "The video game people don't have the clout or savvy to do what the movie people did, which was create a voluntary regime that keeps government out of it."

The video game industry also takes issue with whether viewing the violence in the games actually harms children; Toobin called most of the studies on the matter inconclusive or highly political in their orientation. However, even if the court does uphold the California law, Toobin said he isn't certain the new limits on violent content would eventually apply to movies.

"I'm always suspicious of slippery slope arguments," he said. "The court draws lines all the time."