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."