Court strikes down California video games law

Bob Egelko, Chronicle Staff Writer San Francisco Chronicle
Monday, June 27, 2011
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/06/27/BA9Q1K37ED.DTL

SAN FRANCISCO -- The U.S. Supreme Court struck down California's ban on selling violent video games to minors today, ruling that young people's access to even the most brutal onscreen mayhem is protected by freedom of speech.

By a 7-2 vote, the justices declared unconstitutional a law that has been blocked by court orders since it was passed in 2005.

It would have prohibited the sale to anyone younger than 18 of a video game that was so violent that reasonable people would consider it "patently offensive" under prevailing community standards for minors. Prosecutors would also have been required to show that the game lacked serious literary, artistic, political or scientific value.

Lower courts have unanimously overturned all such laws, passed by at least seven states and several cities. California asked the Supreme Court to chart a new course, arguing that laws restricting minors' access to sexually explicit material, which the court upheld in 1968, should be extended to violence - particularly to interactive media like video games.

Five justices, led by Antonin Scalia, flatly rejected that argument today.

In contrast to hard-core pornography, Scalia said, there is no "long-standing tradition in this country of specially restricting children's access to depictions of violence."

He cited examples ranging from the violence in fair tales like Snow White and Hansel and Gretel, who "kill their captor by baking her in an oven," to fixtures on high school reading lists such as the Odyssey and Lord of the Flies.

U.S. history is filled with examples of popular media being blamed for juvenile delinquency, from the cheap crime novels of the 1800s to the movies and comic books of the 20th century, Scalia said. He said studied offered by the state in defense of the law have shown, at most, that some users of violent video games feel more aggressive afterward - the same effect found in viewers of Bugs Bunny and Road Runner cartoons.

"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," said Scalia, who was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan in the opinion.

"A state possesses legitimate power to protect children from harm ... but that does not include a free-floating power to restrict the ideas to which children may be exposed," Scalia said.

Justice Samuel Alito, joined by Chief Justice John Roberts, said the California law should be found unconstitutional on narrower grounds - that it defined the prohibited games with terms such as "deviant" and "morbid," which they considered too vague. They said a more tightly written video games law, based on stronger research, might be constitutional.

In dissent, Justice Stephen Breyer said numerous researchers, supported by medical organizations, have concluded that ultra-violent video games can cause serious psychological harm to minors. He questioned the video game industry's claims of effectiveness for its voluntary rating system, and also questioned the logic of restricting minors' access to portrayals of nudity but not carnage.

"What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?" Breyer said.

Justice Clarence Thomas dissented separately, saying the Constitution, as he interpreted it, allows the government to prohibit any outsider from speaking to - or selling a product to - a minor without parental consent.

The ruling drew immediate condemnation from state Sen. Leland Yee, D-San Francisco, legislative author of the 2005 law.

"The majority of the Supreme Court once again put the interests of corporate America before the interests of our children," he said.

The video game industry called the ruling a vindication of free expression.

"This is a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere," said Martin Gallagher, president of the Entertainment Software Association, an industry group.

The ruling in Brown vs. Entertainment Merchants Association, 08-1448, can be accessed at www.supremecourt.gov/opinions/10pdf/08-1448.pdf.

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