Experts, background on violent video-games case

Saturday, June 25, 2011

The Supreme Court today struck down 7-2 California’s law forbidding the sale or rental of violent video games to minors. In the opinion by Justice Antonin Scalia, the Court said the law does not comport with the First Amendment.

Experts who can comment: Ken Paulson, Gene Policinski, David Hudson. See bios at right. Call 615/727-1600 or e-mail

At issue in Brown v. Entertainment Merchants Association (08-1448) (formerly Schwarzenegger v. Entertainment Merchants Association): Does a California law that imposes restrictions and a labeling requirement on the sale or rental of “violent video games” to minors violate the First Amendment?

In agreeing to hear the case, the U.S. Supreme Court considered the question of whether the concept of obscenity could extend to violent-themed materials, or would remain rooted in hard-core sexual materials. Obscenity refers to a category of pornographic material that appeals to shameful interests in sex, depicts sexual conduct in a patently offensive way and has no serious literary, artistic, political or scientific value.

The 9th U.S. Circuit Court of Appeals refused to extend the obscenity concept to violence. “The Supreme Court has carefully limited obscenity to sexual content,” the 9th Circuit wrote, adding that “circuit courts have resisted attempts to broaden obscenity to cover violent material as well as sexually-explicit material.”

In its petition to the Supreme Court, the state of California wrote: “This Court should consider whether extremely violent material can be obscene as to minors even without a sexual element.”

The video-game industry and a number of First Amendment free-expression groups opposed the law.

“Allowing broad discretion to regulate violence in speech and expression would have devastating consequences for the news media, who seek to faithfully report on the conditions in an obviously violent world,” stated a brief by the Reporters Committee for Freedom of the Press.

The video-game industry stressed in its brief that there is an effective, voluntary rating system already in place that limits sales of certain rated games to certain age groups, and provides a basis for parents to make judgments on behalf of their children about the appropriateness of the content of the video game.

Legal background

Argument date: Nov. 2, 2010

Lower courts: The opinion of the federal district court granting a preliminary injunction is published as Video Software Dealers Ass’n v. Schwarzenegger, 401 F.Supp. 2d 1034 (N.D. Cal. 2005). The 2007 decision of the federal district court granting respondents summary judgment is unreported. The decision of the 9th U.S. Circuit Court of Appeals is published as Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009).

Facts: In 2005, the California Legislature passed a law prohibiting the sale of violent video games to minors. Gov. Arnold Schwarzenegger signed the measure into law in October 2005. The law depicts a “violent video game” as one that depicts “killing, maiming, dismembering or sexually assaulting an image of a human being” in manner that appeals to the “deviant or morbid interest of minors,” is “patently offensive” and has no “serious literary, artistic, political or scientific value for minors.” The law was scheduled to go into effect in 2006.

Before the law could go into effect, the gaming industry sued in federal court, contending that the law violated the First Amendment. In 2005, a federal district court granted a preliminary injunction, preventing enforcement of the law. In 2007, the district court then granted summary judgment to the challengers. On appeal, a unanimous three-judge panel of the 9th Circuit affirmed in 2009. The 9th Circuit refused to extend the concept of variable obscenity from sex to violence, noting that “the Supreme Court has carefully limited obscenity to sexual content.” Instead, the 9th Circuit applied strict scrutiny and found that the law was not narrowly tailored.

The government petitioned for Supreme Court review. The Court granted review in April 2010.

State’s view: The “variable obscenity” standard of Ginsberg v. New York (1968) should be extended to violent material. Violent video games can be just as harmful as sexual material. The law serves the compelling government interest of protecting the physical and psychological well-being of children. There is growing evidence that violent video games cause harm by leading to increased aggressiveness and anti-social behavior in minors. Industry self-regulation has proven ineffective.

Gaming-industry view: The obscenity exception has long been cabined to the area of sexual expression. Content-based restrictions on speech must pass strict scrutiny. There is no direct causal link establishing that violent video games cause harm to minors. Even if the state establishes a compelling government interest, the law is not narrowly tailored. Parental controls on gaming consoles represent a less speech-restrictive alternative. Much literature and art contains violent themes.

Legal principles: The First Amendment does not protect obscenity and allows states to prohibit sexual material that is harmful to minors. This is called the variable-obscenity standard. The Court has not extended this standard beyond the area of sexual expression. Content-based restrictions on speech are subject to strict scrutiny, which requires both a compelling government interest and narrow tailoring.

Previous articles

Violent video games, justice by justice, By Tony Mauro

Scalia strongly questions violent video-game law, By David L. Hudson Jr.

How obscene is video-game violence? By Ken Paulson

Court sounds divided on violent video-games law, Associated Press

Could violence become ‘obscene’ in law? By David L. Hudson Jr.

Poll: Parents most responsible when kids play violent video games, First Amendment Center

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