Reprinted from my blog, Cyber-Esq. The full Supreme Court opinion is in the Box under “Brown v. Entertainment Merchants Video Game Case:”
On Monday, the U.S. Supreme Court ruled, in a 7-2 opinion, that a 2005 California law aimed at banning the sale of violent video games to children went too far. Created by California state Senator Leland Yee (D-San Francisco), the law imposed a fine of up to $1,000 on retailers found to be in violation. However, because of the litigation, the law never went into effect.
This is the highest-level decision to date on the subject of legal restrictions on violent video games. In the wake of the Court’s decision, one thing is now clear – video games are entitled to the same First Amendment protections as books, plays and movies. Moreover, the Court emphasized that First Amendment protections are subject only to historically limited categories of speech such as obscenity, incitement or fighting words. These protections do not wane with the advent of new technologies. As a result, the state – as California did – cannot create a wholly new category of speech that is unlawful unless it can meet the “strict scrutiny” test; i.e., justify its law with a “compelling state interest.”
On the question of “strict scrutiny,” the Court found that California failed to meet its burden. Of specific interest, the Court doubted the strength of psychological evidence that claims such games cause children to behave violently or aggressively, at least more than any other available media. In addition, the Court found that the voluntary rating system – known as the Entertainment Software Ratings Board‘s (ESRB) classification system – already achieved the needs of parents without the government enacting legislation that infringes on free speech.
According to an article in ZDNet:
“the majority of video game resellers in the United States – including major retailers like GameStop and Best Buy – support the use of the…(ESRB) classification system, which rates games based on content and applies an age rating, which is featured on the video game box. It’s a purely voluntary system modeled after the Motion Picture Association of America’s ratings for movies.”
What do you think of the Court’s decision? In particular, the Court mentioned the fact that California had not limited access to “Saturday morning cartoons” in support of its decision, indicating that this raised the possibility that the state was singling out a particular industry or speaker for sanction. Is this a defensible analogy to violent video games?