Yesterday (pdf), the US Supreme Court ruled 7-2 that video games with violent content are protected by the First Amendment's free speech clause. The case in question, Brown v. Entertainment Merchants Association, involves a 2005 California law that sought to restrict sales of video games to minors without parental supervision. Although lower courts have consistently rejected similar bans on video game sales to minors, this is the first ruling by the Supreme Court on the subject. This puts video games in the same category of protected speech as movies, books, and other art.
The law has never been enforced. The trade group representing game developers, the Entertainment Merchants Association, won an injunction against implementing the law while the case worked its way through the court system.
The Supreme Court said the proposed law failed on two grounds. The First Amendment permits government to restrict speech only in a very few categories of unprotected speech, namely obscenity, incitement, and fighting words. Attorneys for the State of California argued that video games present special problems because of their interactive nature, in which players "participate" in violence. They argued for application of the Miller Test, which takes into account community standards to determine what an "average person" would find objectionable. Such material is not given First Amendment protection. However, the majority found California law would have created a new category of content-restricted speech aimed exclusively at children, and held that the "strict scrutiny" test, the Court's highest standard, should be applied. To pass strict scrutiny, a law must show a compelling government interest, and that it is "narrowly drawn" to address that interest without affecting the freedom of other individuals or other classes of protected speech.
The law's author, psychologist-turned-State Sen. Leland Yee, used psychological studies that link violent behavior to exposure to violence in video games as the central reason behind the ban. The Court rejected that reasoning, finding that merely exposing children to violent content insufficient. The opinion called the connection between violence in video games and violent behavior in children tenuous, and the effects "small and indistinguishable" from effects produced by other media. Since California has not placed the same restrictions on cartoons, for example, the Court found the new law had an unconstitutional bias against video games.
The Court also took issue with the law as a tool for parents who find violent games objectionable to restrict their children's access to such games. The ruling called California's law "seriously overinclusive because it abridges the First Amendment rights of young people whose parents think violent video games are a harmless pastime." The law would have affected all minors equally, with no distinction between children whose parents have such views and those who don't.
The Court pointed to the game industry's voluntary rating system, which serves the same purpose as the proposed law. The Entertainment Software Ratings Board's system gives an age rating based on game content, similar to the Motion Picture Association of America's system for movie ratings. The ESRB system is used by most video game retailers, including Walmart, Best Buy, and GameStop.
Justice Scalia wrote the majority opinion, which was joined by Justices Ginsburg, Kagan, Kennedy, and Sotomayor.
In a concurring opinion, Justice Alito seemed to welcome additional efforts to rein in video game violence, provided they were more specific. He wrote, "I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us." Chief Justice Roberts also signed the concurrence.
The dissenters, Justices Breyer and Thomas, each filed their own opinions opposing the decision. Justice Breyer wrote, "The First Amendment does not disable government from helping parents make such a choice here - a choice not to have their children buy extremely violent, interactive games." Justice Thomas' dissent was blunt. "I would hold that the law at issue is not facially unconstitutional under the First Amendment, and reverse and remand for further proceedings."
Lee also criticized the decision, saying it allowed the video game industry "to make billions of dollars at the expense of our kids' mental health and the safety of our community." His chief of staff said Lee may introduce a new version that would address the objections of the court.
Lee's district includes San Francisco and San Mateo counties, home to many video game developers. He is currently running for mayor of San Francisco.