Supreme Court: Violent videogames can't be banned
Posted June 27, 2011
Washington — 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.”