An effort by California to ban the sale or rental of “deviant violent video games” to minors sparked a vigorous debate at the US Supreme Court on Tuesday over whether the justices should seek to protect free speech or America’s children.
Some justices appear to favor increased regulation of extremely violent video games, while others on the court are concerned that a ban on sales of violent video games to minors would open a door to broader censorship.
There was no indication that any of the justices are aficionados of such mayhem-packed games as Postal 2, Manhunt, or MadWorld – where gamers are offered the option of skewering their victims on a lamppost or feeding them into a meat grinder.
Instead of blood and guts, much of the hour-long oral argument was devoted to concern over whether the California law in question is too vague to withstand constitutional scrutiny.
California is asking the justices to carve out an exception to First Amendment protection, similar to the exception that already exists allowing states to restrict the sale of sexually explicit materials to minors.
Excessively violent video games are harmful to the development of minors, just as sexually explicit materials are harmful, California Supervising Deputy Attorney General Zackery Morazzini told the court.
Justice Anthony Kennedy acknowledged a societal consensus about the need to protect minors from certain sexual materials. “But you are asking us to go into an entirely new area where there is no consensus, no judicial opinions,” he said.
“We had to start somewhere,” Mr. Morazzini replied. “We can build a consensus as to what level of violence is ... deviant for minors, just as the case law has developed over time with sexual depictions.”
The 2005 California law was struck down by lower courts and has never been enforced. It would fine a business up to $1,000 per violation for selling or renting to someone under age 18 a video game deemed excessively violent by state officials.
At issue is whether businesses that produce and sell violent video games have a First Amendment free-speech right to engage in that business without government regulation. The video-game industry has enacted its own rating system to identify video games with violent and/or sexual content.
California says its law is necessary to help parents monitor the activities of their children and protect their children from harmful influences.
Justice Antonin Scalia expressed concern that the effort might lead to widespread censorship. “You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment,” he said.
They knew obscenity was bad, Justice Scalia said of the founding generation in the late 1700s. “But what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children?”
Justice Samuel Alito, who appeared sympathetic to the California law, belittled Scalia’s focus on the founding generation’s view of the First Amendment.
Scalia shot back: “No, I want to know what James Madison thought about violence. Was there any indication that anybody thought, when the First Amendment was adopted, that there was an exception to it for speech about violence?”
Justice Breyer questioned the common sense of treating sexually explicit materials differently from extremely violent video games. The same 13-year-old who is legally barred from purchasing a “picture of a naked woman,” he noted, would face no legal obstacle buying a video game depicting the gratuitous torture of children.
Why are sex and violence treated differently when exposure to both has been shown to cause harm to minors, Breyer asked.
“The difference is we do not make films for children in which explicit sex happens,” answered Paul Smith, the Washington lawyer who represents video-game industry groups challenging the law. “We do make films for children in which graphic violence happens,” he said.
Chief Justice Roberts disagreed. “There is a difference,” he said. “We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg for mercy, being merciless, and decapitating them.”
He added: “We protect children from that. We don’t actively expose them to it.”
The case is Schwarzenegger v. Entertainment Merchants Association, 08-1448. A decision is expected before the end of the term in June.