Monday, June 27, 2011

Supreme Court Overturns California Ban on Sale of Violent Video Games to Minors

Brown v. Entertainment Merchants Association , ___ U.S. ___ (June 7, 2011) [link]

On Monday, the U.S. Supreme Court struck down a California law that prohibits the sale of violent video games to minors. The Court used a fairly straight-forward First Amendment analysis, first concluding that video games qualify for First Amendment protection, then subjecting the California law to a "strict scrutiny" analysis because it imposes a content-based restriction on speech.

The California law in question prohibits the sale or rental of "violent video games" to minors, and requires the packaging for such games to be labeled "18." The Act covers games "in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted "in a manner that "[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors."

In order for the content-based restriction on video games to be upheld, California needed to show that the law was justified by a compelling government interest, and the law was narrowly drawn to serve that interest. California failed to meet that standard in several ways. First, California was unable to show a direct causal link between violent video games and harm to minors. The court rejected research studies offered by California, finding they "show at best some correlation between exposure to violent entertainment and minuscule real-world effects. " Because California did not restrict other media that depict violence to children (such as Saturday morning cartoons), the Court felt the law was "wildly under inclusive." The Court also found the law over-inclusive, because not all of the children who are prohibited from purchasing violent video games have parents who disapprove of their doing so.

The Court's decision is good news for the video game industry, which no longer has to worry about states and municipalities imposing new restriction or licensing schemes for "violent' video games. The decision does not prohibit all restrictions on video games, however, just those that cannot satisfy the "strict scrutiny" test. It is conceivable that a jurisdiction will come up with restrictions that do pass muster. But this is not likely unless the restrictions cover almost all of the media portraying violence to young adults, which is something jurisdictions have not been able to do so far.

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