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The Supreme Court Shoots Down California’s Violent Video Game Statute

Posted in Entertainment Law

By Scott Hervey

A California statute signed into law in 2005 by Governor Schwarzenegger was struck down by the United States Supreme Court on June 27 for running afoul of the First Amendment. The law prohibited the sale or rental of “violent video games” to minors; violations were punishable by a civil fine of up to $1,000.   The statute defined a “violent video game” as games in “which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that a “reasonable person, considering the game a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political or scientific value for minors.” The Supreme Court found the statute to be overreaching and invalid.

The government lacks the power to restrict expressions because of its message, ideas, subject matter or content. There are limited exceptions, such as the government’s right to regulate obscenity.   In the 1973 Supreme Court case of Miller v. California, addressing whether pornography was entitled to First Amendment protection, the court reiterated that obscenity was not protected by the First Amendment and established the Miller test for determining what constituted obscene material. California tried, to make violent speech regulation look like obscenity by appending the savings clause in Miller; pornography that exempted depictions with “serious religious, political, scientific, educational, journalistic, historical or artistic value” could not be categorized as obscenity. The government’s right to restrict obscene speech does not extend to whatever a legislature finds shocking; only depictions of “sexual conduct” said the Court. Speech about violence, even when that speech is directed toward children, is not obscene, the Court held. 

Minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well defined circumstances may government bar the public dissemination to them of protected materials. The Court noted that children have long had access to materials filled with violence and gore – Cinderella (the evil stepsisters have their eyes pecked out by doves) Hansel and Gretel (they kill their captor by baking her in an oven) and Lord of the Flies (the extremely disturbing murder Piggy). The Court found that California’s statute attempted to impose a restriction on the content of protected speech and did not pass strict scrutiny – it is not justified by a compelling governmental interest and is not narrowly drawn to serve that interest. 

The Court’s determination that video games are entitled to the same level of First Amendment protection as other forms of creative works came as relief to those in the gaming industry. In 2009 worldwide video game industry revenue topped $10.5 billion. With the cost of video game development and production rivaling big studio movies, California’s statute could have had a negative impact on game manufacturer’s bottom line.