Can a State Ban Sale of Violent Video Games to Children?

Nov. 2, 2010 -- Several Supreme Court justices were skeptical Tuesday of a California law banning the sale of violent video games to minors.

"California asks this court," state Deputy Attorney General Zackery P. Morazzini said, " 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."

But justices struggled with the scope of the law and whether it could be stretched to apply to other violent mediums.

"Some of 'Grimm's Fairy Tales' are quite grim, to tell you the truth," Justice Antonin Scalia said. "Are you going to ban those, too?"

Justice Ruth Bader Ginsburg said, "I mean, if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books?"

But Chief Justice John Roberts was clearly troubled by the impact of the games on minors. In describing one game, he said, "We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they'll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down."

Paul Smith, a lawyer for the makers of the videos, told the court it is the role of parents, not the government, to protect the children from the games. "Parents have been doing that since time immemorial," he said. "The question before this court is whether you are going to create an entirely new exception under the First Amendment".

Smith dismissed concerns that violent video games need special attention because they are a relatively new medium.

"We do have a new medium here," he said, "but we have a history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling, our children are all going to be turned into criminals."

But Justice Samuel Alito challenged Smith: "You seem to argue that there really is no good reason to think that exposure to video games is bad for minors, exposure to really violent video games is bad to minors; is that right?"

Smith said, "Families have different judgments that they make about their children at different ages and with different content and different family values."

The law was passed in 2005 but legal challenges have stopped it from 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.

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.

Breyer Sympathetic to Calif. Law

The state asked the 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 to minors.

Justice Stephen Breyer appeared to be the most vocal defender of the law. "Why isn't it common sense to say that if a parent wants his 13-year-old child to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence" Breyer argued, "why isn't it common sense to say a state has the right to say, 'Parent, if you want that for your 13-year-old, you go buy it yourself'

U.S. 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 questioned the effectiveness of the law because it is unclear whether 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 have said they believe there should be no special category for the video games. "Violence has been a category of speech that has always enjoyed full protection," Joan Bertin of the National Coalition Against Censorship said.

"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.