WASHINGTON (CN) - Several Supreme Court justices on Tuesday seemed reluctant to carve out an exception to the First Amendment that would allow California to restrict the sale of violent video games to minors. "Why just video games?" Chief Justice John Roberts asked. "Why not movies?"
"What about comic books?" Justice Ruth Bader Ginsburg asked. "Grimm's fairy tales?"
Zackery Morazzini of the California attorney general's office argued that violent video games are "especially harmful" to children because minors act as the aggressors during game play.
California's statute, which bars minors from buying video games in which players can maim, kill, dismember, torture or sexually assault the image of a human being, was passed in 2005 but never enforced.
The 9th Circuit U.S. Court of Appeals struck down the law last February, saying the state failed to show how the statute would shield children.
California says the ban furthers the state's compelling interest of protecting minors and ensures that parents are involved in their children's access to violent material. The law allows parents to buy violent video games for their children.
Justice Anthony Kennedy noted that while there has been societal consensus about sexual material for generations, there is no such consensus on violence.
"You are asking us to go into an entirely new area where there is no consensus, no judicial opinions," Kennedy said. "And this indicates to me the statute might be vague."
Morrazzini said that with violent material, as with sexual material, "we had to start somewhere. California is choosing to start now."
Justice Antonin Scalia worried about what the state would regulate next after violence.
"Drinking? Smoking? Are we to sit day-by-day to decide what else will be made an exception from the First Amendment?" he asked.
While it's understood that obscenity is not protected by the First Amendment, Scalia said, "[i]t has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment."
"I think what Justice Scalia wants to know is what James Madison thought about video games," Justice Samuel Alito quipped.
"No," Scalia said. "I want to know what James Madison thought about violence."
Scalia sympathized with video game manufacturers, saying the apparent vagueness of the statute would make it difficult for the industry to know which games might cause them to face criminal penalties.
"I really wouldn't know what to do as a manufacturer," Scalia said.
Morazzini argued that the video game industry is capable of making the distinction because it already rates games based on violent content.
Roberts voiced his concerns with Paul Smith, the attorney representing the Entertainment Merchants Association and the Entertainment Software Association, that children take an active part in violent video games, as opposed to being exposed to books or films depicting violence.
"The child is doing the killing," Roberts said. "The child is doing the maiming. And I suppose that might be understood to have a different impact on the child's moral development."
Smith argued that California failed to show a "shred of evidence" that the games impact minors' development, citing expert testimony that players of violent video games grow up to be "just fine."
Justice Stephen Breyer asked why it was "such a terrible thing" to regulate a game featuring the "gratuitous torture" of babies, for example, asking why the state could not just say to the parent, "[I]f you want that for your 13-year-old, you go buy it yourself."
Smith argued that game publishers had a right to know what the statute covered in advance and said it was hard to "finely" cut levels of violence. He complained that manufacturers, facing a $1,000 per game penalty, could face "hundreds of millions of dollars" in fines.
He argued that parental controls and ratings were sufficient to restrict access to children.
"So your position is that the First Amendment does not, cannot, no matter what type of law, whether this one is vague or not, that the state Legislature cannot pass a law that says you may not sell to a 10-year-old a video in which they set schoolgirls on fire?" Roberts asked.
Smith said yes, there was no way to draw an exception to the First Amendment for violent video games. He added that turning the current ratings system into a standard for determining penalties would effectively make the ratings system a "censorship commission."
"It's a licensing authority that the First Amendment doesn't allow," Smith said.
As justices looked for the limits of the proposed statute, Justice Sonia Sotomayor asked if the sale of a video game that featured killing Vulcans, as opposed to human beings, could be restricted.
Morazzini said it could not, because the statute was only directed toward games that depict violence against humans.
The case is Schwarzenegger v. Entertainment Merchants Association, no. 08-1448.
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