At issue is a pending California law that provides for up to a $1,000 fine to retailers who sell violent video games; defined as depicting "killing, maiming dismembering, or sexually assaulting an image of a human being" to children. The fine does not apply to sales clerks if they have no ownership interest in the business.
Lawyers for Gov. Arnold Schwarzenegger argued in court papers that the California legislature, in passing the law, considered numerous studies that established a link between playing the violent games with an increase in aggressive thoughts, anti-social behavior and desensitization to violence in both minors and adults.
The state's goal was to promote parental authority to restrict a minor's ability to purchase such games.
"Whatever First Amendment value these games may possess for adults, such games are simply not worthy of constitutional protection when sold to minors without parental participation," state lawyers wrote.
California will ask the Supreme Court to carve out a new exception to the First Amendment -- much like it has for obscenity -- that would cover the sale of the violent games.
The state argued that a juvenile's brain has not fully matured enough to handle behavior control and that the violence in the games could have a more lasting negative effect than it would for an adult.
But the Entertainment Merchants Association, which successfully challenged the law in lower courts, disagreed.
Paul Smith, who represents the industry, said the law, "is the latest in a long history of overreactions to new expressive media."
Smith argued that parents do not need the state's assistance in "deciding which expression is worthwhile to their children."
American consumers spend more than $10 billion a year on video games.
A federal appeals court ruled in favor of the industry, reasoning that the state hadn't established a sufficient link between the violent games and the physical and psychological harm to children.
The American Civil Liberties Union has sided with the industry in the case and questions the effectiveness of the law because it is unclear if it applies to online sales.
"There is no way for an Internet host to tell whether you are 45 years old or 15 years old," staff attorney Chris Hansen said. "If it doesn't apply to online sales, it becomes a silly law. And if it does apply to online sales, it becomes a law that prevents adults from playing, as well as minors."
Opponents of censorship believe that there should be no special category for the video games. "Violence has been a category of speech that has always enjoyed full protection," said Joan Bertin of the National Coalition Against Censorship.
"The courts have always understood that discussions and depictions of violence in art, literature, film, theater have a great deal of value. It would be impossible to draw a line between good violence and bad violence."
Although a handful of other states have tried, California is the only state that has passed legislation to ban the sale of violent video games.