WASHINGTON — The Supreme Court on Monday agreed to decide whether California may forbid the sale of violent video games to children.
Lower courts have consistently struck down similar laws under the First Amendment, declining to extend obscenity principles to images of violence. The Supreme Court’s decision to hear the case in the absence of disagreements in the lower courts suggests that at least some justices might be prepared to rethink how the First Amendment applies to depictions of violence, at least when they are sold to children.
The 2005 California law at issue in the case imposes $1,000 fines on stores that sell violent video games to people under 18. The law defines violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that is “patently offensive,” appeals to minors’ “deviant or morbid interests” and lacks “serious literary, artistic, political or scientific value.”
A unanimous three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, struck down the law, rejecting what Judge Consuelo M. Callahan, writing for the panel, called “an invitation to reconsider the boundaries of the legal concept of ‘obscenity’ under the First Amendment.”
In defending the law in court, the California officials submitted “several vignettes from the games Grand Theft Auto: Vice City, Postal 2 and Duke Nukem 3D, which demonstrate the myriad ways in which characters can kill or injure victims or adversaries,” Judge Callahan wrote. But she said the “heavily edited selections” did not “include any context or possible story line.”
The state urged the appeals court not to apply “strict scrutiny,” the searching judicial review usually called for when content-based laws are challenged under the First Amendment. To survive strict scrutiny, laws must be narrowly tailored to promote a compelling government interest. The state instead urged the court to apply a more relaxed standard used in obscenity cases involving minors, one that requires only a showing that it was not irrational for lawmakers to find that exposure to the materials in question would harm children.
Judge Callahan rejected the looser standard, saying it was specifically rooted in the Supreme Court’s “First Amendment obscenity jurisprudence, which relates to nonprotected sex-based expression — not violent content.”
She added that the justification offered by the state to support the law — that violent video games cause psychological harm to children — was supported mainly by evidence based on correlation rather than causation.
Michael D. Gallagher, the president of the Entertainment Software Association, said First Amendment protections should apply to video games just as they do to books, films and music. Industry self-regulation is working, he said, and it is harder for minors to buy M-rated games than it is to buy R-rated DVDs.
The justices first considered whether to hear the case, Schwarzenegger v. Entertainment Merchants Association, No. 08-1448, in September and apparently put off their decision until they finished work on United States v. Stevens, last week’s 8-to-1 decision striking down a federal law that made it a crime to traffic in depictions of animal cruelty.
The fact that the court decided to hear the video game case instead of sending it back to the lower courts for reconsideration in light of the Stevens decision indicates that some justices consider the two sorts of depictions distinct for purposes of the First Amendment.
In a separate development, the court turned down a request from Michigan that it address a dispute over how to prevent Asian carp from invading the Great Lakes.News by SoulRiser on April 27, 2010 @ 5:44 PM