Bloomberg News

Violent Video Game Limits Struck Down by U.S. Supreme Court

June 27, 2011

(Updates with comment by law’s supporter in 12th paragraph.)

June 27 (Bloomberg) -- The U.S. Supreme Court struck down a California law prohibiting sales of violent video games to minors, saying the ban is an unconstitutional infringement on speech rights.

The nation’s highest court today rejected the state’s contention that violent games are akin to sexual materials, which the government can restrict to protect children.

“Even where the protection of children is the object, the constitutional limits on governmental action apply,” Justice Antonin Scalia wrote for five justices. The vote to strike down the law was 7-2, with the majority divided in its reasoning.

A decision upholding the law, which was never enforced, might have encouraged enactment of similar measures around the country. The video game industry has more than $10 billion in annual sales.

The ruling, issued on the final opinion day of the court’s 2010-11 term, divided the justices along unusual lines. Justices Stephen Breyer and Clarence Thomas dissented. Chief Justice John Roberts and Justice Samuel Alito wrote separately to say they would have issued a narrower ruling that struck down the law as being too vague while leaving room for states to enact clearer statutes.

“I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem,” Alito wrote for the two. He cited the increasingly realistic nature of video games and pointed to games he said reenacted massacres at Virginia Tech University and Columbine High School in Colorado.

Game Industry

“It also appears that there is no antisocial theme too base for some in the video game industry to support,” Alito wrote.

Two industry trade groups, the Entertainment Merchants Association and the Entertainment Software Association, challenged the law. Members of the two groups include Electronic Arts Inc., Microsoft Corp., Sony Corp. and Take-Two Interactive Software Inc., the maker of “Grand Theft Auto” games.

Electronic Arts rose 3 cents to $21.80 at 2:40 p.m. in trading on the Nasdaq Stock Market. Activision Blizzard Inc. rose 12 cents to $11.41. Take-Two rose 39 cents to $15.19.

“This is a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere,” said Michael D. Gallagher, president of the Entertainment Software Association.

Labeling Games

Originally meant to take effect in 2006, the California law would have required violent video games to be labeled, and it banned their sale or rental to anyone under 18, subjecting violators to fines of as much as $1,000. The law wouldn’t have prevented parents from buying the games for their kids.

“Today the multibillion-dollar video game industry is celebrating the fact that their profits have been protected,” said James Steyer, chief executive officer of Common Sense Media, a San Francisco-based group that helped develop the law. “But we will continue to fight for the best interests of kids and families.”

The measure restricted games that depict violence against human beings and appeal to “a deviant or morbid interest of minors,” are “patently offensive” and “lack serious literary, artistic, political or scientific value for minors.” The law didn’t clearly say whether it applied to online sales.

California said its law was a way of helping parents shield their children from games the industry itself has said aren’t appropriate for minors.

No Tradition

“California’s argument would fare better if there was a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none,” Scalia wrote.

He pointed to Saturday morning cartoons including Bugs Bunny and the Road Runner; fairy tales including Snow White and Hansel and Gretel; and “The Lord of the Flies,” the William Golding novel in which children marooned on an island murder a boy.

“California has singled out the purveyors of video games for disfavored treatment -- at least when compared to booksellers, cartoonists and movie producers -- and has given no persuasive reason why,” Scalia wrote.

Today’s ruling upheld a decision by a San Francisco-based federal appeals court.

The video game industry said the California law would have accomplished little in light of a voluntary rating system already used by virtually all game publishers and the largest retailers. The system assigns one of eight age-specific ratings to games -- with M signifying mature, or 17 and older, and AO indicating adults only, or 18 and older.

Guidance for Parents

Breyer, in his dissent, said the law wasn’t aimed at censorship. He said the measure merely ensured that parents would decide whether they wanted their children to play violent video games.

“The First Amendment does not disable government from helping parents make such a choice here -- a choice not to have their children buy extremely violent, interactive video games,” Breyer wrote.

Thomas focused on what he said was the original understanding of the Constitution’s First Amendment.

“‘The freedom of speech,’ as originally understood does not include a right to speak to minors without going through the minors’ parents or guardians,” Thomas wrote.

The case is Brown v. Entertainment Merchants Association, 08-1448.

--With assistance from William McQuillen in Washington. Editors: Jim Rubin, Bob Drummond

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net.


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