The U.S. Supreme Court decided today to hear a case originating out of California regarding whether the state has the authority to ban the sale of violent video games to minors. The state of California in Schwarzenegger v. Entertainment Merchants Association petitioned the Court to uphold the state statute and extend the Court’s rules specific to minors and obscenity to violent content also. on one side free speech opponents of the ban are arguing that the restrictions go too far on an industry that is already regulated with parental warnings. Proponents of the law state that the ban is necessary because of how the depictions of violence affect minors.
Governator Arnold Schwarzenegger and the State of California passed a law in 2005 banning the sale or rental of violent video games to minors imposing a civil fine of up to $1,000.00 for violating the statute. Before the law could go into effect however, the video game industry challenged the law in California Federal Court, winning an injunction and the case on the merits at both the District and the Court of Appeals levels. In both cases, the Courts found that the California law violated the constitutional rights of minors under the first and fourteenth amendments, and the law has never actually been in effect. Thus far, the video game industry has prevailed against these challenges, winning in 12 lower court rulings that struck down various laws restricting the sales of violent games at the state and local level.
The District Court Judge found on the First Amendment issue that the applicable constitutional standard was strict scrutiny, and that the law did not pass constitutional muster because although the state had a compelling interest, the act did not choose the least restrictive means. The state was unable to demonstrate to the Court that the law would protect the physical and psychological well-being of minors more effectively than the current system nor would it further the articulated interest that the state enacted the law for in the first place. Video Software Dealers Ass’n v. Schwarzenegger, No. C-05-04188 RMW (Aug. 6, 2007), affirmed, No. 07-16620 (9th Cir. 2009), preliminary injunction decision at 401 F. Supp. 2d 1034 (N.D. Cal. 2005).
In February of 2009, the 9th Circuit Court of Appeals upheld the 2007 District Court decision, agreeing that the California law was a content-based regulation subject to strict scrutiny and not the “variable obscenity” standard established in Ginsburg v. New York 390 U.S. 629 (1968), rendering it presumptively invalid on its face. Using the strict scrutiny analysis, the Court concluded that the state failed to demonstrate evidence that a causal connection existed between violent video games and serious psychological or neurological damage to minors. Also, because the Act was neither narrowly tailored nor did it provide the least restrictive means of promoting the state’s interest, the 9th Circuit held that it violated the First Amendment. Finally, the court held that the State’s labeling requirement was unconstitutionally compelled speech in violation of the First Amendment because the labeling compelled placement of ratings on boxes based on a subjective standard of violence. Video Software Dealers Ass’n v. Schwarzenegger – No. 07-16620 (9th Cir. 2009).
The debate over this issue has been governed too long by politics and providing easy answers at the expense of constitutional validity. At the Supreme Court the arguments will be the same, but the impact of the decision will be felt nationally. Because other states such as Oklahoma, Washington, Illinois, Michigan and others have also attempted to follow California’s footsteps, a Supreme Court decision will help provide guidance for future state or federal legislation that would affect access to “violent” content to minors.