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Supreme Court Overturns California Law

June 28, 2011 Written by Josh Fernandes

Ever since 2005, it has been illegal for retailers to sell mature games to minors in the state of California. The law would fine any retailer that failed to comply up to $1,000. The law was argued in front of the supreme court on November 2nd, 2010 as Brown v. Entertainment Merchants Association. The supreme court has now revealed their decision.

The court ruled 7-2 to overturn the law on the basis that it restricts the minors first amendment rights to access creative works such as movies, books, and videogames. California is now the 7th state to have a law restricting the sales of videogames struck down by a higher court. The law would have banned the rental or sale of any game to someone under 18 if the videogame did the following:

  1. Allows players the options of “killing, maiming, dismembering, or sexually assaulting an image of a human being.”
  2. Shows those acts in a way that a “reasonable person” would find “appeals to a deviant or morbid interest of minors” and is “patently offensive to prevailing standards in the community as to what is suitable for minors.”
  3. Also lacks “serious literary, artistic, political or scientific value for minors.”

From the court ruling:

Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And ‘the basic principles of freedom of speech . . . do not vary’ with a new and different communication medium.

The ruling continues:

A legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test. Unlike the New York law upheld in Ginsberg v. New York, 390 U. S. 629, California’s Act does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. Instead, the State wishes to create a wholly new category of content based regulation that is permissible only for speech directed at children. That is unprecedented and mistaken. This country has no tradition of specially restricting children’s access to depictions of violence. And California’s claim that “interactive” video games present special problems, in that the player participates in the violent action on screen and determines its outcome, is unpersuasive.

The ruling also addressed claims that violent videogames cause violence in minors:

California cannot meet that standard. Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively…Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint.

The justices also made a point to mention stories such as “Snow White” and “Hansel and Gretel,” and explain that they are just as violent as anything in videogames. Justice Clarence Thomas wrote a lengthy dissent from the court’s opinion. In it, Thomas argued that the Constitution gave parents “absolute authority over their minor children” and allowed the government to ban all outside contact with children, including sale of any product, without parental consent. If you want to read the court’s ruling for yourself, as well as Thomas’ dissent, you can check it out here.