(CN) – California cannot bar businesses from selling or renting violent video games to minors and imposing age-based labeling requirements, the Supreme Court ruled Monday, affirming a 9th Circuit decision to strike down the law.
In October 2005, then Gov. Arnold Schwarzenegger signed into law a bill barring the sale or rental of violent video games to minors, in the hopes of curbing psychological harm to youth and reducing their aggressive behavior.
The law characterizes a “violent” game as one “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being.” A violent game “enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel or depraved in that it involves torture or serious physical abuse to the victim,” according to the act.
Retailers face a $1,000 fine for violating the law, which requires violent video games to “be labeled with a solid white ’18’ outlined in black” that must appear on the front packaging and be “no less than 2 inches by 2 inches.”
Before the law went into effect, the Video Game Software Dealers Association and the Entertainment Merchants Association sued various state officials, claiming the act would unconstitutionally stifle their speech.
U.S. District Judge Ronald Whyte sided with the plaintiffs and enjoined the state from enforcing the law and a three-judge appellate panel dismissed the state’s appeal, finding that California had failed to consider less-restrictive alternatives or show how the restrictions protect children.
In tossing the appeal, the 9th Circuit explained that the act could not fall under “variable obscenity” standard from the Supreme Court’s 1968 decision Ginsberg v. New York. That ruling upheld a New York ban on the sale of “girlie magazines” to minors, even though the material was not considered obscene for adults.
On Monday, the Supreme Court agreed, 7-2, that there is a distinction between the New York and California laws. The decision matches the justices’ reaction to the appeal at oral arguments.
“Because speech about violence is not obscene, it is of no consequence that California’s statute mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York,” Justice Antonin Scalia wrote for the majority. “That case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child. … And because ‘obscenity is not protected expression,’ the New York statute could be sustained so long as the legislature’s judgment that the proscribed materials were harmful to children ‘was not irrational.’
“The California Act is something else entirely,” Scalia continued. “It 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. California does not argue that it is empowered to prohibit selling offensively violent works to adults – and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. Instead, it 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.” (Emphasis in original)
The 18-page lead opinion notes that children in the United States deal with gory themes from their first Grimm’s fairy tale to their required reading in high school, such as William Golding’s “Lord of the Flies.”
Video games do not meet an exception because of their interactive nature since literature is also an engaging medium, the majority added.
Scalia notes that the concurring opinion, authored by Justice Samuel Alito, delves into the rather disgusting details of the video game narratives in question, but the majority said this exposition further shows that California is trying to unconstitutionally limit speech.
“Justice Alito recounts all these disgusting video games in order to disgust us – but disgust is not a valid basis for restricting expression. And the same is true of Justice Alito’s description of those video games he has discovered that have a racial or ethnic motive for their violence – ‘”ethnic cleansing” [of] … African Americans, Latinos, or Jews.’ To what end does he relate this? Does it somehow increase the ‘aggressiveness’ that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, Justice Alito’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech – whether it be violence, or gore, or racism – and not its objective effects, may be the real reason for governmental proscription.” (Emphasis in original)
California also failed to prove that it is helping parents who wish to restrict their children’s access to such video games. “Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games,” Scalia wrote.
“And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime,” he added (parentheses in original).
Chief Justice John Roberts joined in Alito’s opinion concurring in the judgment, which warns the high court to “proceed with caution” when applying constitutional principles to new technologies.
“We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time,” Alito wrote. “We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar.”
Justice Clarence Thomas and Justice Stephen Breyer each authored dissenting opinions.
“The practices and beliefs of the founding generation establish that ‘the freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians,” Thomas wrote (parentheses in original). “I would hold that the law at issue is not facially unconstitutional under the First Amendment, and reverse and remand for further proceedings.”
Breyer explains that the only difference between New York’s obscenity law and California’s is that New York’s dealt with nudity while California’s deals in extreme violence.
“I can find no difference – historical or otherwise – that is relevant to the vagueness question,” Breyer wrote. “Indeed, the majority’s examples of literary descriptions of violence, on which Justice Alito relies, do not show anything relevant at all.
“After all, one can find in literature as many (if not more) descriptions of physical love as descriptions of violence. Indeed, sex ‘has been a theme in art and literature throughout the ages.’ For every Homer, there is a Titian. For every Dante, there is an Ovid. And for all the teenagers who have read the original versions of Grimm’s Fairy Tales, I suspect there are those who know the story of Lady Godiva.”
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