Supreme Court: Violent videogames can't be banned

Posted June 27, 2011

— The Supreme Court says California cannot ban the rental or sale of violent video games to children.

The high court agreed Monday with a federal court's decision to throw out California's ban on the sale or rental of violent video games to minors. The 9th U.S. Circuit Court of Appeals in Sacramento said the law violated minors' rights under the First and Fourteenth amendments.

The law would have prohibited the sale or rental of violent games to anyone under 18. Retailers who violated the act would have been fined up to $1,000 for each infraction.

The court on a 7-2 vote said the law was unconstitutional.

More than 46 million American households have at least one video-game system, with the industry bringing in at least $18 billion in 2010.

Triangle game developers such as Epic, which is based in Cary, had been watching for the decision closely. Epic's most recent release, "Bulletstorm," is a violence-filled title promising to "kill with skill in style."

Coming later this year is "Gears of War 3," the company's top seller in a franchise that has been a huge, violence-filled seller worldwide.

Insomniac, which has a studio in Durham, is working on a new version of "Overstrike."

And developers are updating "Fallen Earth," developed by Icarus studios and recently sold to another firm.

California wanted to prohibit the sale or rental of violent games to anyone under 18. But federal judges have declared that the law violates First Amendment free speech rights.

Justices seemed closely split in November, with some arguing that parents need help protecting children from violent games like "Grand Theft Auto IV." But other justices seemed reluctant to carve out a new exception to the First Amendment to cover violence in games.

The decision produced an immediate positive response from the head of the trade group that represents the Research Triangle area’s growing videogame industry.

“The Supreme Court's 7-2 decision today is a victory not just for the video game industry, but for the entire new media industry,” said Alexander Macris, president of the Triangle Game Initiative and chief executive of Durham-based Themis Group, which publishes an online magazine that focuses on the videogame industry.

“California founded its case on the pernicious argument that games could be regulated despite First Amendment protections because games were ‘interactive,’ but interactivity is the hallmark of all new media, including e-books, music play lists, websites, forums and more," Macris said. "California's law would have been a beachhead for future governmental assaults on all forms of interactive speech. By striking this law down, the Supreme Court has protected free speech in all its forms, digital or print, interactive or passive. Every champion of free speech should cheer the decision.”

Associate Justice Antonin Scalia, who wrote the majority opinion, said state's have the power to protect children from harm, but that doesn't include "a free-floating power to restrict the ideas to which children may be exposed."

Unlike depictions of "sexual conduct," Scalia said, there is no tradition in the U.S. of restricting children's access to depictions of violence, pointing out the violence in the original depiction of many popular children's fairy tales like Hansel and Gretel, Cinderella and Snow White.

"Certainly the books we give children to read – or read to them when they are younger – contain no shortage of gore," he said.

Associate Justice Clarence Thomas, who dissented from the decision along with Associate Justice Stephen Breyer, said the majority read something into the U.S. Constitution that is not there.

"The practices and beliefs of the founding generation establish that 'the freedom of speech,' as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians," Thomas wrote.

Michael Gallagher, president of the Entertainment Software Association, which fought the California bill, hailed the ruling.

“This is a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere," Gallagher said in a statement. "Free speech protections apply every bit as much to videogames as they do to other forms of creative expression like books, movies and music. The court declared forcefully that content-based restrictions on games are unconstitutional and that parents, not government bureaucrats, have the right to decide what is appropriate for their children.”


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  • carolinapatriot Jun 28, 2011

    Whoops again, I meant explicitly limit what they could do, not could not do. That would just be totalitarian and I don't know how we could ever stand that.

  • JustOneGodLessThanU Jun 28, 2011

    @Hater like Darth Vader, first off...I’ve always gotten a kick out of your username. :-)

    And, thanks for the education on the ratings. Your comments make my case completely. They rate nudity with AO, but that’s what you (and surely other folks) think is a “worse” rating. That’s what many people inately think...that nudity is “worse” than violence...although I cannot understand why.

    How is showing a cartoon woman’s breast or simulated softcore intercourse...”worse” in any way, shape or form...than killing another human being. THAT is my point to the ridiculous rating people...and all the adults who buy into this. Consenual sex is not and cannot EVER be worse than violence against another human being. What do you think?

  • hurricane04343 Jun 27, 2011

    To everyone confused, there is no difference between this and not allowing minors into R rated movies. It is actually not illegal to for a movie theater to allow minors into an R movie. There was a very similar case in front of the Supreme Court in which someone was trying to fine movie theaters for allowing minors in; the Supreme Court ruled against it. So a movie theater can not be punished for it, but I believe there is some benefit they get for not allowing them in.

    Regarding porn, there are also a very similar case about this and the Court ruled that porn was not protected under the 1st Amendment (not sure why) and thus it can be age restricted by law.

  • sendanitaamessage Jun 27, 2011

    Parents just need to parent.

  • tayled Jun 27, 2011

    It's true, parents are the first and last line of defense in the battle against violence and if more parents would do their jobs, this would not even be an issue. However, the SCOTUS has just undermined parents everywhere with this. There are reasons that restrictions are placed on minors and every parent knows the reason. We didn't like it when we were minors and we tried our best to skirt the rules, but in the end, we are better people now for those rules.

  • nighttrain2010 Jun 27, 2011

    >>Right in the sense that it is the parents' reponsibility to do so, and any overbearing authority and meddling in your affairs whether it be federal state or local is counter to natural law. However, from the standpoint of republicanism, if the citizens of a state decide to allow their --carolinapatriot

    I believe I see where you're going carolina and I agree with that. I didn't say I agreed with the law or that it is a good law. babedan, I would work within my state against that law 100%. However as carolina stated from a republican (small r) standpoint, I have to agree the state has the power to pass legislation, even if I disagree with it.

    If it is as Madison stated in Federalist 45 within "the ordinary course of affairs, concern the lives, liberties, and properties of the people" that power is reserved for the separate and sovereign state. Under original intent, I have very little recourse at the federal level for a state law unless it interferes with intended federal power.

  • ncouterbanks69 Jun 27, 2011

    "The only people who play these extremely violent games are criminals and soon to be serial killers. - anybody else in 2012"

    LOL boo hoo. You HAVE to be looking for a reaction. I will bite and give you one.....if you truly believe that then the world is filled with more maroons (Thanks Bugs Bunny) than I thought it was. If it makes you want to do that then please do not play them. However some of us can tell right from wrong and fantisy from reality.

  • JustOneGodLessThanU Jun 27, 2011

    @keeping_it_real, it’s the the Conservatives/Republicans who “hinder” our choices at every turn. Here are a few ways they regulate us with Big Government laws to say...

    -You can’t marry THAT person

    -You can’t end your life when and how you want to

    -You can’t have THAT surgical procedure even though it’s your own body

    -You can’t do THAT sex act with another consenting adult

    -You can’t buy alcohol on Sunday before noon, because you should be in church

    -You can’t possess THAT weed’s leaf

    And on and on...

  • Hater like Darth Vader Jun 27, 2011

    And FYI: Most national retailers revert to ESRB recommendations and don't sell violent games to minors anyway. So their parents guidance still doesn't get circumvented.

  • Hater like Darth Vader Jun 27, 2011


    ESRB actually changed Grand Theft Auto: San Andreas to Adults Only. They actually found a part of it where it animated intercourse. So they can show a woman's breast, they just get the worst possible rating.