The justices agreed to take up Governor Arnold Schwarzenegger’s appeal of a federal court decision striking down the state-enacted restrictions. A federal judge and the Ninth US Circuit Court of Appeals ruled that children and teens have a First Amendment right to purchase and play violent video games.
The action came less than a week after the high court voted 8 to 1 to strike down a federal law banning depictions of animal cruelty – including dogfights and videos of animals being tortured – because the justices said the law was substantially overbroad and could criminalize innocent conduct like possession of hunting magazines and videos.
At issue in Schwarzenegger v. Entertainment Merchants Association is a 2005 state law that sought to restrict the sale and rental of violent video games to those who are at least 18 years old. The law mandated that violent video games carry a large “18” on the packaging to notify store clerks, buyers, and parents that the product contained restricted material.
A federal judge described the content of one violent video game, “Postal II,” that he said would have been subject to the pre-18 ban. The game allows players to “go postal” and kill everyone they encounter – police officers, unarmed bystanders, even schoolgirls.
“Girls attacked with a shovel will beg for mercy; the player can be merciless and decapitate them,” wrote US District Judge Ronald Whyte. “People shot in the leg will fall down and crawl; the player can then pour gasoline over them, set them on fire, and urinate on them. The player’s character makes sardonic comments during all this; for example, urinating on someone elicits the comment, ‘Now the flowers will grow.’ “
Supporters of the California ban argue that violent video games are harmful to children and teens. Some teens become addicted to the games, they say. Just as states may restrict access by minors to pornography, tobacco products, alcohol, and gambling, states must have authority to restrict access to violent video games, they argue.
“The corruption of our nation’s youth with increasingly deviant video games is a matter of national importance,” wrote Andrew Schlafly of the conservative group Eagle Forum Education & Legal Defense in a friend of the court brief urging the high court to take up the case.
“The First Amendment does not render our nation’s youth defenseless against the predatory, billion-dollar video game industry that churns out increasingly graphic blood and gore for impressionable minds to imbibe,” he wrote.
Free speech advocates and the video game industry argue that violent images and ideas are not obscene and cannot be banned.
“California was not the first state to try to restrict distribution of video games it considered too violent for minors. Such laws have proved politically popular, but every one has been struck down under the First Amendment,” wrote Washington lawyer Paul Smith in his brief on behalf of the Entertainment Merchants Association.
Federal appeals courts in Chicago, St. Louis, Cincinnati, and New York have refused to uphold similar restrictions against violent material that did not involve sexually explicit content. In addition to California, nine other states have enacted similar bans and had them struck down as unconstitutional.
Judge Whyte ruled that the California ban and label requirement violated First Amendment protections of free speech. A three-judge panel of the Ninth Circuit agreed.
Lawyers for the state argued that the courts should approach the potential harm to minors of violent video games in the same way that courts have allowed age-restrictions on the sale of sexually-explicit magazines to minors.
“Violent video games can be just as harmful to minors as sexual material and should receive no greater protection under the First Amendment,” wrote Deputy Attorney General Zackery Morazzini, in his brief on behalf of California.
In its ruling, the Ninth Circuit said it was refusing to “boldly go where no court has gone before.” The panel said it was declining the state’s invitation to expand and redefine obscenity to include violent material as well as sexually-explicit material.
The appeals court rejected suggestions by the state that violent video games can produce violent teenagers. “None of the research establishes or suggests a causal link between minors playing violent video games and actual psychological or neurological harm,” wrote Circuit Judge Consuelo Callahan in the Ninth Circuit opinion.
The Ninth Circuit panel concluded that California could rely on less restrictive methods to protect minors from violent images in the games. The judges said the state could improve an existing voluntary rating system, enhance educational efforts, and support parental controls and involvement.
The case will be set for oral argument sometime during the court’s next term, which begins in October.