US Supremes dump violent video game ban

Urinating on virtual burning cops deemed free speech

The US Supreme Court has upheld a lower-court decision that blocked a California law which made the sale or rental of violent video games to minors an offense punishable by fines of up to $1,000.

"California has singled out the purveyors of video games for disfavored treatment – at least when compared to booksellers, cartoonists, and movie producers – and has given no persuasive reason why," Justice Antonin Scalia wrote in his opinion supporting the 7-2 decision.

The law the Supremes shut down was California Assembly Bill No. 1179, passed in 2005, which made it illegal to sell what it termed "violent video games" to minors. That bill defined such games as ones "in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being."

To qualify as a violent game, according to AB1179:

• A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
• It is patently offensive to prevailing standards in the community as to what is suitable for minors.
• It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

As might have been predicted, the video game industry, in the form of the Entertainment Software Association (ESA), took exception to the law, as they had previously done in response to similar statutes in Illinois and Michigan

The ESA took their case to the United States District Court for the Northern District of California, which shelved AB1179, agreeing with the ESA's argument that it violated the US Constitution's First Amendment, which guarantees free expression.

The case then worked its way up to the US Supreme court, which on Monday put AB1179 out of its misery by declaring it unconstitutional.

"Today," wrote ESA president and CEO Michael Gallagher in a statement, "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."

Hansel, Gretel, and Quentin Tarantino

Scalia cites the protections other forms of entertainment enjoy, despite their violent content. "Grimm's Fairy Tales, for example," he writes, "are grim indeed," mentioning the wicked queen who tried to poison Snow White being forced to dance herself to death in red-hot slippers, Cinderella's stepsisters having their eyes pecked out by doves, and Hansel and Gretel – "children!" he notes – roasting their captor to death in an oven.

"California's effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors," Scalia writes. "In the 1800's, dime novels depicting crime and 'penny dreadfuls' (named for their price and content) were blamed in some quarters for juvenile delinquency."

Movies became the next target of censors, he writes, followed by radio dramas and comic books. "And, of course, after comic books came television and music lyrics," he adds. All of these forms of entertainment – with certain allowable exceptions – are protected under the First Amendment, said Scalia.

Justice Samuel Alito, in a concurring opinion, argued that although AB1179 doesn't pass a First Amendment test, future restrictions might be permissible because books and video games have a different degree of "interactivity". In support of that argument, he wrote – with, it must be observed, some degree of relish:

Think of a person who reads the passage in Crime and Punishment in which Raskolnikov kills the old pawn broker with an axe. ... 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 the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.

Justices Clarence Thomas and Stephen Breyer were the lone dissenters to the ruling. Thomas based his argument on a series of historical references in which he attempted to build a case that the framers of the US Constitution intended children to be subject to their parents.

Breyer's argument skips Thomas' "framers' intent" reasoning, and instead focuses on the right of the State to protect children, citing studies that "have found causal evidence that playing these games results in harm," and which "take care to explain in a commonsense way why video games are potentially more harmful than, say, films or books or television."

As an example, Breyer described one game that was submitted to the court in which "a character who shoots out a police officer's knee, douses him with gasoline, lights him on fire, urinates on his burning body, and finally kills him with a gunshot to the head."

According to the seven-person majority, however, if such a depiction is protected by the First Amendment if it's found in a book, movie, or lyric, it's protected in a video game. ®