The Supreme Court today struck down a California law that banned the sale of violent video games to minors. Justice Antonin Scalia, writing for a 7-2 majority, said the law was "unprecedented and mistaken."
"No doubt a State possesses legitimate power to protect children from harm," he wrote, "but that does not include a free-floating power to restrict the ideas to which children may be exposed."
In a forceful opinion, Scalia noted that books given to children have "no shortage of gore."
"Grimm's Fairy Tales ... are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor."
He said the California Act is the latest in a "long series of failed attempts to censor violent entertainment for minors," and he said the state had not demonstrated any direct causal link between playing violent video games and actual harm to minors.
Scalia said the video-game industry has in place a voluntary rating system designed to inform consumers and store owners about which games contain a high degree of violence. He said that parents "who care about the matter" can readily evaluate the games their children bring home.
The games at issue were defined as depicting "killing, maiming, dismembering or sexually assaulting an image of a human being" to children. They included games such as Grand Theft Auto: Vice City, Postal 2, Duke Nukem 3D, and Mortal Kombat.
The California law was passed in 2005, but legal challenges have stopped it from ever taking effect. It provides for up to a $1,000 fine to retailers who sell violent video games, although the fine does not apply to sales clerks if they have no ownership interest in the business. Nine other similar laws were passed across the country, but they were all blocked from taking effect.
California had asked the court to carve out a new exception to the First Amendment -- much like it has for obscenity -- that would cover the sale to minors of the violent games.
California Deputy Attorney General Zackery P. Morazzini asked the court "to adopt a rule of law that permits states to restrict minors' ability to purchase deviant, violent video games that the legislature has determined can be harmful."
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. The California legislature, in passing the law, considered numerous studies that established a link between playing violent video games and an increase in aggressive thoughts, anti-social behavior and desensitization to violence in both minors and adults.
But the industry struck back. Paul Smith,a lawyer representing video game makers, told the court it is up to parents, not the government to protect children from the games.
Smith said the law "is the latest in a long history of overreactions to new expressive media."
After the releases of the opinion Bo Anderson, President & CEO of Entertainment Merchants Association that challenged the law released a statement. "We are gratified that our position that the law violates the First Amendment's guarantee of freedom of expression has been vindicated and there now can be no argument whether video games are entitled to the same protection as books, movies, music, and other expressive entertainment."
In lively prose Scalia discussed the history of violence in children's books and fairy tales.
"Hansel and Gretel kill their captor by baking her in an oven," he wrote.
But Justice Samuel Alito, while agreeing that the California law should be overturned took issue with comparing books with videos. Writing for himself and Chief Justice John Roberts, Alito said the law was vague but he said he would not "squelch" future legislative efforts to deal with what is perceived by some to be a developing social problem.
"In some of these games," Alito writes, "the violence is astounding. Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords and chain saws."
Alito says that the average reader of a passage in Crime and Punishment will not experience the description of violence in the same way if he were participating in a violent video game.
"Compare that reader with a video-game player who creates an avatar that bears his own image;who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of a victim and then to bring it down."
Alito suggested other laws, differently framed, might pass constitutional muster.
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."
American consumers spend more than $10 billion a year on video games.