WASHINGTON — The Supreme Court on Monday struck down
California’s ban on the sale of violent video games to minors, extending
the kind of speech protected by the Constitution.
In a ruling closely watched by other states and the
entertainment industry, the court determined that California’s 2005
violent video game restrictions violated free speech rights guaranteed
by the First Amendment.
“Even where the protection of children is the object,
the constitutional limits on governmental action apply,” Justice
Antonin Scalia wrote for the majority.
The ruling in Schwarzenegger v. Entertainment
Merchants Association is a defeat for current Gov. Jerry Brown. As
California’s attorney general, he defended the law, signed by his
predecessor Arnold Schwarzenegger, the one-time star of the violent
“Terminator” movie series.
The 7-2 ruling also continues a run of cases in which
the justices have struck down restrictions on violent or salacious
material conveyed through a succession of media formats.
“Whatever the challenges of applying the Constitution
to ever-advancing technology, the basic principles of freedom of speech
and the press, like the First Amendment’s command, do not vary,” Scalia
wrote.
Next term, the trend could continue, as the court
announced Monday it would review the Federal Communications Commission’s
rules governing indecent broadcasts.
The video game ruling Monday, moreover, could
constrain at least 11 other states, including Florida, Mississippi and
Texas, that explicitly sided with California’s efforts to restrict the
video games minors can buy. The California state senator who authored
the law, Democratic Sen. Leland Yee, acknowledged he was “rather
disappointed” by the decision but suggested lawmakers might try yet
again.
“If we craft the bill differently, there may be a basis for it to be upheld,” Yee said at a news conference in California.
Justices Stephen Breyer and Clarence Thomas dissented separately.
“The interest that California advances in support of
the statute is compelling,” Breyer wrote, adding that video games can
end up “teaching (children) to be violently aggressive in life.”
At Breyer’s behest, the Supreme Court library
compiled hundreds of academic studies that concluded psychological harm
results from playing violent video games.
Thomas stressed his belief that courts should
strictly confine themselves to the original meaning of the Constitution,
stating that the Constitution’s authors believed firmly that “parents
have authority over their children.”
Chief Justice John Roberts and Justice Samuel Alito
agreed with the majority that California’s law, while “well intentioned,
(was) not framed with the precision the Constitution demands.” The two
conservative justices, however, suggested that, as Alito put it,
“differently framed statutes” that imposed narrower restrictions might
survive court scrutiny.
California’s law banned the sale of violent video
games to customers under 18. Lawmakers defined “violent” as activity
involving “killing, maiming, dismembering, or sexually assaulting an
image of a human being.” Each violation could bring a $1,000 fine.
The law was modeled after obscenity statutes. It set a
familiar sounding threshold that a “reasonable person” must think the
violent game was “patently offensive,” appealed to a minor’s “deviant or
morbid interest” and lacked serious scientific, literary or artistic
merit.
Though passed six years ago, the California law has
faced legal challenges the entire time and it has never been put into
practice.
California lawmakers justified the restriction as a
way to protect minors’ “physical and psychological welfare, as well as
their ethical and moral development.” They cited games such as “Postal
2,” in which one illustrative scene includes the player hitting a woman
in the face with a shovel.
“As she cries out and kneels down, the player hits
her twice more with the shovel, this time decapitating her,”
California’s legal brief recounted. “The player then proceeds to hit the
headless corpse several more times, each time propelling the headless
corpse through the air while it continues to bleed.”
Entertainment industry advocates countered with their
own, more edifying game examples, such as “Full Spectrum Warrior” and
“Tom Clancy’s Rainbow Six.” Consumers worldwide spent an estimated $25
billion last year on video games, hardware and accessories.
“The Supreme Court affirmed what we have always
known, that free speech protections apply every bit as much to video
games as they do to other forms of creative expression like books,
movies and music,” said Michael D. Gallagher, president and chief
executive officer of the Entertainment Software Association.
Three of the top 10 best-selling video games are part
of the “Grand Theft Auto” series, according to the NPD market research
company. The games are rated M, for mature.
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