Supreme Court strikes down ban on sale of violent video games to minors

The Supreme Court on Monday struck down a California law that banned the sale of violent video games to minors, ruling video games are protected under the First Amendment as free speech.

The court reached a decision in Brown v. the Entertainment Merchants Association (EMA) by a vote of 7-2, with Justices Clarence Thomas and Stephen Breyer dissenting. Writing for the court, Justice Antonin Scalia said the law would have created a new class of regulations for content aimed at children.

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“No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed,” Scalia wrote, noting that even fairy tales such as “Snow White” and “Cinderella” feature graphic descriptions of violence.

The court reiterated that the basic principles of free speech do not vary by medium and called the law’s attempt to restrict children’s access to depictions of violence “unprecedented and mistaken.”

“This country has no tradition of specially restricting children’s access to depictions of violence,” the court stated.

The law in question was passed by the California State Assembly in 2005 and bans the sale of games deemed by the attorney general to be “excessively violent” to children under the age of 18, with a fine of up to $1,000 for each violation.

The EMA sued and won in U.S. District Court a year later. A subsequent appeal by the state to the 9th Circuit Court of Appeals was unsuccessful, prompting an appeal to the nation’s highest court.

The court rejected arguments that the interactive nature of video games make them especially harmful, comparing them to “Choose Your Own Adventure” books, which debuted in 1969. The court also dismissed the state’s attempt to shoehorn the ban on violence into existing First Amendment exceptions for obscenity.

“That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct,’ ” Scalia wrote for himself and Justices Sonia Sotomayor, Anthony Kennedy, Elena Kagan and Ruth Bader Ginsburg.

The California law had been opposed by a coalition of entertainment industry groups representing the motion picture, radio and TV industries, each of which expressed concerned about potential content restrictions in its medium.

The EMA has pushed to police itself through voluntary standards similar to the ratings system used by the movie industry, but experts say the video game makers lack the clout and savvy that have maintained Hollywood’s independence from federal regulators.

“Although the California statute is well-intentioned, its terms are not framed with the precision that the Constitution demands, and I therefore agree with the court that this particular law cannot be sustained,” wrote Justice Samuel Alito in a concurring opinion joined by Chief Justice John Roberts.

However, Alito took issue with the court’s approach, arguing the justices shouldn’t be so quick to dismiss the judgment of legislators, who might be in a better position to judge the impact of new technologies. Still, his opinion rejected the law’s central tenet, that playing violent games is harmful to children.

“In the view of the court, all those concerned about the effects of violent video games — federal and state legislators, educators, social scientists and parents — are unduly fearful, for violent video games really present no serious problem,” Alito wrote.

“Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in ‘kind’ from reading a description of violence in a work of literature.”

In a dissenting opinion, Thomas argued the freedom of speech doesn’t include the right for minors to access content without going through parents or guardians. He argued the nation’s Founders intended speech to minors that bypasses their parents to be excluded from the First Amendment.

“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,” 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.”

Breyer filed a dissenting opinion arguing it makes no sense to restrict sales of pornography but allow kids to play games that depict graphic violence.

“But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?” Breyer said.

“What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman — bound, gagged, tortured and killed — is also topless?”

Free speech advocates cheered the announcement, arguing the court had taken a stand to protect the freedom of expression in the arts. Groups that have pushed for increased government scrutiny of sex and violence in the media were predictably disappointed.

“The sound you hear is a collective sigh of relief from the arts community. Today’s decision confirms that the First Amendment protects video producers, musicians and others seeking to explore cutting-edge social and political issues,” said Andrew Jay Schwartzman, senior vice president and policy director of the Media Access Project.

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“An adverse ruling would have encouraged legislatures to restrict free expression in music, on television and on the Internet.”

“This ruling replaces the authority of parents with the economic interests of the video game industry,” said Parents Television Council President Tim Winter.

“With no fear of any consequence for violating the video game industry’s own age restriction guidelines, retailers can now openly, brazenly sell games with unspeakable violence and adult content even to the youngest of children.” 

Michael D. Gallagher, president and CEO of the Entertainment Software Association, a trade group for the video game industry, called the decision “a historic and complete win for the First Amendment.” 

“The court declared ... that parents, not government bureaucrats, have the right to decide what is appropriate for their children,” Gallagher said.

This story was posted at 11:17 a.m. and updated at 7:49 p.m.