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Supreme Court to rule on violent video games

At issue: Access by children vs. 1st Amendment

By Jesse J. Holland
Associated Press / April 27, 2010

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WASHINGTON — The Supreme Court will decide whether free speech rights are more important than helping parents keep violent material away from children.

The justices agreed yesterday to consider reinstating California’s ban on the sale or rental of violent video games to minors, a law the US Court of Appeals for the Ninth Circuit in San Francisco threw out last year on grounds that it violated minors’ constitutional rights.

Governor Arnold Schwarzenegger, who signed the law in 2005, said he was pleased justices would review the appeals court decision. He said, “We have a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions, just as we already do with movies.’’

But the judge who wrote the decision overturning the law said at the time that there was no research showing a connection between violent video games and psychological harm to youths.

The Supreme Court’s decision to hear the case comes only a week after it voted overwhelmingly to strike down a federal law banning videos showing animal cruelty. The California case poses similar free speech concerns, although the state law is aimed at protecting children, raising an additional issue.

California’s law would have prohibited the sale or rental of violent games — those that include “killing, maiming, dismembering, or sexually assaulting an image of a human being’’ — to anyone under 18. It also would have created strict labeling requirements for video game manufacturers. Retailers who violated the act could have been fined up to $1,000 for each violation.

Lawyer Stephen S. Smith, who has represented several video game companies in court, said the Supreme Court might use this case to explain how far lawmakers can go when trying to regulate depictions of violence.

“There is a fair amount of First Amendment law in the area of sexual explicitness and obscenity,’’ he said. “But there is not nearly as much law on the issue of violence and what may be restricted or not under the First Amendment in that arena.’’

The California law never took effect, and was challenged shortly after it was signed by Schwarzenegger. A US District Court blocked it after the industry sued the state, citing constitutional concerns.

In addition to arguing that the law violates freedom of expression under the First Amendment, opponents note that video games already are labeled with a rating system that lets parents decide what games their children can purchase and play.

But supporters of the law note that the Supreme Court has upheld laws keeping minors from buying or having access to pornography, alcohol, and tobacco. And the California law does not ban parents from purchasing or buying the video games for their children.

Michael D. Gallagher, president of the Entertainment Software Association, said video games should get the same free speech protections as the court reaffirmed last week for videos.

Given last week’s ruling on videos showing animal cruelty, “we are hopeful that the court will reject California’s invitation to break from these settled principles by treating depictions of violence, especially those in creative works, as unprotected by the First Amendment,’’ he said.

The association says video games are played in 68 percent of American households.