Ruling against age limit on game sales upheld

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Ruling against age limit on game sales upheld
Bob Egelko, Chronicle Staff Writer
Saturday, February 21, 2009

SAN FRANCISCO -- California's ban on selling video games to minors is unconstitutional because even the most graphic on-screen mayhem is free speech, and there's no convincing evidence it causes psychological damage to young people, a federal appeals court ruled Friday.

"The government may not restrict speech in order to control a minor's thoughts," said the Ninth U.S. Circuit Court of Appeals in San Francisco in upholding a federal judge's ruling against the law, which has never been enforced. Similar laws in other states have also been struck down.

The head of an industry group that challenged the law praised the court's "rejection of video game censorship." State Sen. Leland Yee, D-San Francisco, sponsor of the law, urged state officials to appeal to the U.S. Supreme Court.

"We need to help empower parents with the ultimate decision over whether or not their children play in a world of violence and murder," Yee said.

Gov. Arnold Schwarzenegger signed the law in October 2005. It would bar the sale of an interactive video game to anyone under 18 if the game was so violent it was "patently offensive," according to prevailing community standards for minors, and lacked serious literary, artistic, political or scientific value.

'18' label on package

Those games would carry a large "18" label on their packages. Anyone who sold such a game to a minor could be fined as much as $1,000.

In defending the law, the state argued that violent content should be judged by the same obscenity standards as sex. Just as the government can prohibit the sale of explicit pornography to minors, state lawyers contended, it should be allowed to establish an adults-only category of ultra-violent video games.

The appeals court disagreed. A 1968 U.S. Supreme Court ruling that allowed tighter restrictions on selling explicit materials to minors than to adults applies only to sexual content and not to violence, the appellate panel said.

"The Supreme Court has carefully limited obscenity to sexual content," Judge Consuelo Callahan said in the 3-0 ruling. "We decline the state's invitation to apply the (same) rationale to materials depicting violence."

Video games, Callahan said, "are a form of expression protected by the First Amendment."

Callahan said the state could justify the law only by demonstrating that violent video games cause psychological harm to minors and that young people could be protected only by being banned from buying those games. She said the state had fallen short on both counts.

The state cited researchers' findings that youths who play violent video games are more likely to behave aggressively and get into fights. But Callahan said even some of the researchers acknowledged that their samples were too small to draw conclusions, that there was no proof video games caused violent behavior, or that the games affected minors differently from adults.

She also said the state had failed to show that there were no good alternatives to an outright ban on sales to minors. Callahan said such options include an educational campaign, technology that allows parents to control their children's access to video games, and the industry's rating system that includes an adults-only category.

The rating system, although it is voluntary, works well and is preferable to "state-sponsored nannyism," said Bo Andersen, president of the Entertainment Merchants Association, an industry group that sued the state.

Sellers said to be compliant

"Retailers are committed to assisting parents in assuring that children do not purchase games that are not appropriate for their age," Andersen said. He said independent surveys have found that sellers comply with the ratings 80 percent of the time.

But Deputy Attorney General Zackery Morazzini, the state's lawyer in the case, said a law restricting sales of violent games is far more effective than industry self-policing. He said the technological controls that the court cited as another alternative "can be easily bypassed by any kid with an Internet connection."

E-mail Bob Egelko at begelko@sfchronicle.com.

This article appeared on page B - 1 of the San Francisco Chronicle