Supreme Court Decision On Whether To Hear Violent Video Game Case Expected Soon

The United States Supreme Court may decide whether to hear a landmark case affecting the sale of violent video games as early as next week, the California Attorney General's office told Kotaku today.

Before the highest court in the country is the decision whether to hear arguments regarding California's legal battle against the video game industry over the sale of violent games to minor. This is a battle that has been repeatedly won by the gaming side but still may be fought once more.

A decision to not hear the case would affirm California's previous judicial defeats and serve as another in a long line of gaming industry victories against state authorities trying to legislate against violent games.

But a decision by the Court to hear the case could open the gaming industry up to a possible decision that would turn the tables and enable the sale of violent games to minors to be restricted under the highest authority in the country.

The Supreme Court agrees to hear a small number of the cases of highest national or legal importance. A spokesperson for California Attorney General Jerry Brown's office told us that they expect a decision from the Court "as soon as next week."

The California fight began in late 2005 when the state's Governor, Arnold Schwarzenegger, signed into law regulations that would fine retailers of up to $1000 against people who sell intensely violent games to minors. While no such laws exist pertaining to the sale of violent movies or DVDs, state officials argued that extremely violent games could prove harmful to minors.

"We're not talking about violent video games," California assemblyman Leland Yee had said in an interview at the time. "We're talking about ultra-violent video games." The bill singled out games whose violence causes them to "lack serious literary, artistic, political or scientific value for minors" as well as those whose violence "is especially heinous, cruel or depraved in that it involves torture or serious physical abuse to the victim." Yee and others maintained that such games were harmful to minors and could compel them to emulate the actions in the games.

The gaming industry's chief lobbying group, The Entertainment Software Association, which also hosts the annual E3 event, successfully got a judge in the state to first block the law and then deem it a violation of the First Amendment. An appeals court unanimously upheld that decision. Efforts by California to prove that violent games triggered violent reactions in children did not convince the courts.

But in May of 2009, California announced that it was petitioning the Supreme Court to consider the case.

In the petition [PDF here], the state argues that it should use decisions that recognized the harmfulness of certain sexual material to minors as a basis for restricting the sale of "extremely violent video games." It also sees this issue as one of growing concern:

This is an important issue with national implications, particularly in light of the growing evidence that these games harm minors and that the industry self-regulaton through the existing rating system has proven ineffective.

The state, citing prior decisions, also argued that it should be able to use a predictive standard regarding the effects of violent games on minors and not causality.

In July 2009, the ESA and the Entertainment Merchants Association filed their opposition, attempting to sway the Court to not re-open the case. The opposition document includes a defense of video games, describing them as "a modern form of artistic expression" and arguing that games such as Resident Evil 4 and Tom Clancy's Rainbow Six parallel the themes and details of movies that are legally available to minors in California.

The gaming industry groups defend the video game ratings system, argue there is no evidence for games causing psychological harm or physical violence and deny the validity of the state's arguments that violent media could be restricted from minors in the manner that sexual material is. It attacks the California law for being too vague in its description of which kinds of games would be too violent for kids:

"The State fails to explain how to determine what constitutes prohibited violence against an "image of a human being," or why minors should be shielded from depictions of violence against an image of a human being rather than depictions of violence against a zombie, god, robot, or any other fantastical creature. The State's proposal to treat depictions of simulated violence as obscenity has no stopping point.

Should the Supreme Court be swayed by the State of California's petition, then it will hear arguments from both sides about these issues, eventually issuing a decision that would either uphold gaming industry victories or at last subject video games in America to restrictions in how they are sold to minors. Should the Court decide not to hear arguments, then the video game industry's previous win against California will stand.

The Court's choice is expected to be made clear as soon as Monday.

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