First Amendment Trumps California in Supreme Court Battle Over Violent Video Games

The Supreme Court sided with the video game industry today, declaring a victor in the six-year legal match between the industry and the California lawmakers who wanted to make it a crime for anyone in the state to sell extremely violent games to kids.

In a 7-2 ruling Justice Antonin Scalia said the law does not comport with the First Amendment. He was joined by Samuel Alito and Chief Justice John Roberts, who had seemed sympathetic to California's concerns last year. Justices Clarence Thomas and Stephen Breyer, traditionally members of the court's right and left wings, respectively, joined in dissent. [Read the full decision - PDF link.]

This story will be updated throughout the day .

The case was The State of California vs. The Entertainment Merchants Association and the Entertainment Software Association. That last party, the ESA, is the gaming industry. The trade group puts on the annual E3 video game showcase, the gaming business' biggest news event each year. The ESA's lawyers argued against the state of California's on Election Day last year, trying to convince the court that video games deserve the same breadth of First Amendment protections as books and movies. The decision, revealed today, was the first time the Supreme Court has weighed in on video games in any fashion.

The law in question would have made it a crime to sell ultra-violent video games to minors in the State of California. It had been ruled un-Constitutional by lower courts.

"The basic principles of freedom of speech . . . do not vary' with a new and different communication medium," Scalia wrote in the Court's opinion, citing an earlier speech case.

Writing for a plurality of justices, Scalia said California's arguments "would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none." He cited numerous examples of violence in literature. "Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional."

Scalia also shot down California's arguments that video games were different enough from books to require a First Amendment exception. "As Judge Posner has observed, all literature is interactive. '[T]he better it is, the more interactive.'" He called California's scientific evidence that violent video games can hurt kids "not compelling."

He denied a state need for a law, given that, he argued parents may not all agree that their kids need protection from violent video games. He cited studies of the current video game ratings systems and said they have been shown effective enough to work. "Filling the remaining modest gap in concerned-parents'
control can hardly be a compelling state interest."

Justices Roberts and Alito decide with the majority but presented a very different argument. Alito denied the Court's opinion, as written by Scalia, that found no notable distinction between video games and other forms of entertainment. He expressed alarm about the potential potency of future video games: "If the technological characteristics of the sophisticated games that are likely to be available in the near future are combined with the characteristics of the most violent games already marketed, the result will be games that allow troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence."

Leery as he was about video game content, Alito, with Roberts, said the California law was simply too vague in its descriptions of the type of violence which would make a game sold to minors illegal. Standards against sexual content were more specific and grounded in cultural traditions to prohibit children's access to such content.

The Courts' two dissenters sided with California for two distinct reasons. Justice Clarence Thomas focused on his researched understanding that the frames of the United States Constitution did not believe children enjoyed the same access to Free Speech as adults. "The history clearly shows a founding generation that believed parents to have complete authority over their minor children and expected parents to direct the development of those children." As a result, he said, the California law restricting the sale of gams to minors was within Constitutional bounds.

Justice Breyer focused on the possible double standard between sex and violence. While the Court has upheld States' ability to restrict the sale of certain types of sexual content to children, it is saying with its decision that it is okay to give children access to violent games—violent games, he noted, that even the game industry rates in a way to restrict from kids. "What sense does it make to forbid selling to a 13-year-old boy a magazine with an
image of a nude woman, while protecting a sale to that 13­ year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restrict-ing sales of that extremely violent video game only when the woman-bound, gagged, tortured, and killed-is also topless?"

The video game industry rejoiced at the decision. "This is a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere," said Michael Gallagher, head of the Entertainment Software Association. "Today, the Supreme Court affirmed what we have always known – that free speech protections apply every bit as much to video games as they do to other forms of creative expression like books, movies and music."

The California bill's author, Leland Yee, told reporters today he was very disappointed. The Supreme Court has "decided that it is going to side with corporate America and Wal-Mart against our children," he said.


The debate about video games' effect on kids has raged since the '80s and intensified in the '90s with the creation of Doom and a spate of school shootings. After the turn of the century, states across America, including Illinois and Michigan, attempted to criminalize the sale of violent video games to minors. But each of these laws, usually promoted by Democrats, was found by the lower courts to violate the First Amendment, running afoul of the country's Constitutional protection for free speech.

California's attempt to criminalize violent games got further than others. The law was written by California assemblyman and child psychologist Leland Yee and signed into law by then-governor Arnold Schwarzenegger. [Read California's law.]

Yee's law borrowed the language of the Miller Test, a set of criteria established by the Supreme Court in 1973 for determining if forms of speech are obscene and therefore not protected by the First Amendment. Short of establishing a class of obscene video games that would be illegal for any American, Yee's law would build on the Supreme Court precedent for allowing states to make the sale of certain kinds of pornographic content—adult magazines, for example—illegal when sold to children, while remaining legal if sold to adults.

Games violating Yee's law would be any that:

(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.
(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.

Despite the support of the legislature and then-governor Schwarzenegger, the California law was nevertheless ruled unconstitutional by courts in California. Last year, however, the Supreme Court agreed to hear California's appeal, the state's final attempt to get their law through.

[Read our cheat sheet about the back-and-forth between California and the gaming industry.]

The stakes for the video game medium were high when oral arguments began on the case in the fall of 2010. A court decision in favor of California would separate video games from books, music, movies and all other forms of entertainment for which there is no criminal penalty tied to the selling of extreme non-obscene content to kids. (It is legal, for example, to sell a ticket to an R-rated movie to a child; it simply violates the movie industry's internal rules). Yee and California's legal team had argued that the interactive nature of video games necessitated that the medium be treated differently and with a greater awareness of a potential to harm kids.

"This is not about Leland Yee trying to prevent any of you game [developers] from developing any more atrocious kinds of games," Yee told Kotaku last year. "This is a free society. If you have the imagination to do something even more horrible with the technology, then God bless you. That's part of our freedom of expression here in America, but you just have to figure out when it's appropriate and when it's not appropriate. For me, as a child psychologist you ought not be doing it for kids."

On the other hand, Michael Gallagher, speaking on behalf of the gaming industry, said last year, "We've successfully argued this case in 12 other courts that these types of laws are unconstitutional and that video games should be treated just like movies, music and other forms of entertainment."

The nine Supreme Court justices did not tip their hands during oral arguments. They fired skeptical questions at both sides, though they failed to fall into the conventional left-right splits. Conservative justice Antonin Scalia grilled California's lawyer about a slippery slope that would lead to the criminalizing of Grimm's Fairy Tales, while left-leaning Elana Kagan wondered if a game her clerks played, Mortal Kombat, would run afoul of the law. Conservative chief justice John Roberts rattled off a description of the game Postal and said there's an American tradition to protect children from content like that, while left-leaning Stephen Breyer wondered why it wasn't "common sense" for the state to require that parents be the ones buying those games, should a kid wind up with one. [Read key excerpts of those and other colorful exchanges from the oral arguments.]