The Supreme Court on Monday struck down a California law forbidding the sale of violent video games to people younger than 18, saying it violates First Amendment rights and is "unprecedented and mistaken."
The 7-2 opinion, written by Justice Antonin Scalia, says that just as children can read grisly fairy tales, they can buy and play violent video games. Justices Clarence Thomas and Stephen Breyer dissented.
The 2005 California law prohibits those younger than 18 from buying or renting games that depict such acts as the "needless mutilation of the victim's body." U.S. District Judge Ronald Whyte blocked the statute on First Amendment grounds, and the Supreme Court now agrees.
"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 court ruling reads.
The Entertainment Merchants Association, one of the industry organizations that brought the lawsuit, said the Court’s decision will help stymie further efforts to restrict video-game content.
"We are gratified that our position that the law violates the First Amendment’s guarantee of freedom of expression has been vindicated, and there now can be no argument whether video games are entitled to the same protection as books, movies, music, and other expressive entertainment," EMA President Bo Andersen said in a statement.
The ruling may dissuade other state legislatures from adopting similar laws in the near future, but it is unlikely to tamp down the often-emotional debate over media, including video games, and violence. The fight is decades old and even with this ruling, shows no signs of abating.
The Parents Television Council called the decision a "Constitutionally-protected end-run on parental authority." The California law, the group argued, would have still allowed children to play violent games, but only if purchased by an adult.
"Countless independent studies confirm what most parents instinctively know to be true: repeated exposure to violent video games has a harmful and long-term effect on children," the PTC said in a statement. "Despite these troubling findings, video game manufacturers have fought tooth and nail for the ‘right’ to line their pockets at the expense of America’s children."
In a joint statement signed in 2000, six major professional societies, including the American Psychological Association and the American Academy of Pediatrics, said that "well over 1,000 studies … point overwhelmingly to a causal connection between media violence and aggressive behavior in some children. The conclusion of the public health community, based on over 30 years of research, is that viewing entertainment violence can lead to increases in aggressive attitudes, values, and behavior, particularly in children."
But those findings are not undisputed. In a 2008 study, Harvard University researchers Lawrence Kutner and Cheryl Olson found that although boys who played M-rated (for mature) games were twice as likely to get into a physical fight, steal, or struggle in school, most children who play M-rated games did not have serious problems.
The data, they said, did not prove that violent video games actually caused violent behavior.
And the Supreme Court agreed. “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," the court ruled. "Any demonstrated effects are both small and indistinguishable from effects produced by other media.”
In Monday's decision, Scalia invokes Dante, dime novels, and even children's stories to argue that there is no precedent for blocking depictions of violence.
The law "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," he wrote.
"California’s argument would fare better if there were a long-standing tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed," he wrote. "As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red-hot slippers 'till she fell dead on the floor, a sad example of envy and jealousy.' "
The California law, originally scheduled to take effect in 2006, was never enforced. Whyte issued an injunction after the video-game industry launched the lawsuit in 2005.
When the state appealed to the Supreme Court in 2009, then-Gov. Arnold Schwarzenegger said that the law would help ensure that parents have control over what games their children play.
The statute defined violent games as those that include "killing, maiming, dismembering, or sexually assaulting an image of a human being" and lack any "serious literary, artistic, political, or scientific value for minors."
But the justices expressed skepticism about such definitions almost from the start. During oral arguments in November, Scalia questioned the notion that law could define "deviant" violence. Justice Anthony Kennedy expressed concern that the California statute could set a new precedent for free speech.
"For generations, there has been a societal consensus about sexual material,” Kennedy told the lawyers. "You're asking us to go into an entirely new area where there is no consensus."
Americans spend more than $10 billion a year on computer and video games, and 67 percent of U.S. households play such games, according to the Entertainment Software Association.
Video games are rated on a voluntary basis by the Entertainment Software Rating Board, a self-regulatory organization similar to the Motion Picture Association of America. Like movies, video games are not required to be rated, but almost all of them are submitted for review because many retail stores do not sell unrated games.
This article appears in the June 27, 2011, edition of National Journal Daily PM Update.