Video Game Curbs to Be Reviewed

By Kenneth Jost
Associate Editor
      Violent video games are the latest free speech issue for the U.S. Supreme Court.
      The justices agreed on April 26 to hear an appeal by the state of California seeking to reinstate a 2005 law that bans the sale or rental to minors of video games that depict “killing, maiming, dismembering or sexually assaulting” human images in “patently offensive” ways. The case is Schwarzenegger v. Entertainment Merchants Association, 08-1448.
      California is one of nine states or localities to enact similar laws. So far, federal judges have struck down all of the statutes challenged in court, including California’s.
      Under the California law, retailers could have been fined as much as $1,000 for any violation. The law permits a minor’s parent or guardian to buy or rent games for minors even if the game would violate the law.
      Federal courts blocked California’s law before it could go into effect. U.S. District Court Judge Ronald Whyte in San Jose issued a preliminary injunction in 2005 before the law was to take effect and made the injunction permanent in August 2007. In both rulings, Whyte said that the state had not proven that video games cause harm to minors.
      The Ninth U.S. Circuit Court of Appeals upheld the decision in February 2009. The appeals court also said the state had not shown that parental controls were ineffective in protecting children from any potential harms.
      In seeking to reinstate the law, lawyers for California are seeking to expand a Supreme Court ruling, Ginsberg v. New York (1968), that permits the government to keep sexually explicit material from minors even if it would not be deemed legally obscene for adults. “Violent video games can be just as harmful to minors as sexual material and should receive no greater protection under the First Amendment,” the state told the justices in seeking review of the appeals court decision.
      Lawyers for the video game dealers challenging the law urged the justices to leave the case alone, calling the appeals court ruling “a routine application” of established free-speech law. They pointed to the industry’s voluntary rating system for video games and to evidence showing parents are involved in most purchases of games for children.
      But the video game dealers also argued that minors do not need special protection from depictions of violence. “Violence . . . is a regular part of children’s literature and stories,” they told the justices.
      The high court rejected a similar effort to expand the scope of unprotected speech in an 8-1 decision earlier this month [April 20] that struck down a federal law banning depictions of animal cruelty. Writing for the majority in United States v. Stevens, Chief Justice John G. Roberts Jr. said the court’s precedents do not establish “a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”
      The justices apparently waited until the Stevens decision was released to decide whether to hear the video game case themselves, leave the appeals court decision in place or ask the Ninth Circuit to reconsider its ruling in the light of the high court decision.
      The high court has had a number of tricky First Amendment-related cases on its calendar for the current term, which runs through the end of June.
      In January, the court struck down on free-speech grounds an important provision of the McCain-Feingold campaign finance law that barred corporations and labor unions from using their own funds in federal elections. The 5-4 ruling in Citizens United v. Federal Communications Commission was praised by Republicans but sharply criticized by Democrats. President Obama denounced the ruling in his State of the Union address with six of the justices seated below him.
      The justices heard arguments on Feb. 23 in a case, Holder v. Humanitarian Law Project, challenging broad interpretations of a federal law making it a crime to provide “material support” to groups designated by the government as terrorist organizations. U.S.-based groups are seeking a ruling that the law does not apply to efforts to teach the use of international law to terrorist-designated organizations in Kurdistan and Sri Lanka.
      The court heard arguments on April 19 in a case, Christian Legal Society v. Martinez, challenging a decision by a state law school in California denying recognition to a Christian group because of religious qualifications for membership. And the justices are to hear arguments on Wednesday [April 28] in an appeal, Doe v. Reed, seeking to prevent disclosure of the names of signers of an initiative petition in Washington that would overturn parts of the state’s domestic partner law. Supporters of the initiative say they would be subject to harassment if their names were disclosed.
      Rulings in the remaining cases this term are expected by the end of June, when the justices customarily start their summer recess. Arguments in the video game case are likely to be scheduled in November or December.

      For more information, see Sarah Glazer, “Video Games,” CQ Researcher, Nov. 10, 2006.