WASHINGTON The U.S. Supreme Court ruled that a state law prohibiting the sale or rental of violent video games to minors violates the First Amendment's protection of free speech.
In a 7-2 decision, the high court upheld lower court rulings striking down a 2005 California law. The June 27 ruling elicited strong criticism from an organization that seeks to protect children from violence, sex and profanity in entertainment.
The justices' vote cut across the typical ideological division on the court, with strict constructionists Chief Justice John Roberts and Associate Justices Antonin Scalia and Samuel Alito joining liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan in the court's majority judgment. Associate Justice Anthony Kennedy, often a swing vote, also voted with the majority. Associate Justices Clarence Thomas, a strict constructionist, and Stephen Breyer, who normally sides with the court's liberal wing, dissented.
In the court's opinion, Scalia said a ban on the sale of obscene material to minors that was upheld by the Supreme Court in 1968 does not apply in the case of California's law, which was patterned after the '68 anti-obscenity measure. The high court's rulings "have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of 'sexual conduct,'" Scalia wrote.
California failed to show it has a compelling interest in enacting the ban or that the law is narrowly tailored in behalf of that interest, Scalia said. The state's inability to show there has been an American tradition of limiting children's exposure to violence also hurt its case, he said. Scalia pointed to "Grimm's Fairy Tales," "The Odyssey" and "Lord of the Flies" as examples of violent literature commonly read by U.S. children.
Scalia also pointed to California's decision to restrict only video games as a problem. The state "has singled out the purveyors of video games for disfavored treatment at least when compared to booksellers, cartoonists, and move producers and has given no persuasive reason why," he wrote.
In his dissent, Thomas said the court's opinion "does not comport with the original public understanding of the First Amendment." He said the original understanding of free speech "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."
The Parents Television Council (PTC) said the decision provides a "Constitutionally-protected end-run on parental authority."
"[V]ideo game manufacturers have fought tooth and nail for the 'right' to line their pockets at the expense of America's children," PTC President Tim Winter said in a written statement. "Today, the Supreme Court sided with them and against parents."
The Entertainment Merchants Association (EMA), the trade association for the home entertainment industry that challenged the California law, commended the ruling.
"We are gratified that our position that the law violates the First Amendment's guarantee of freedom of expression has been vindicated and there now can be no argument whether video games are entitled to the same protection as books, movies, music, and other expressive entertainment," said EMA President Bo Andersen.
The PTC called for increased enforcement of the video game industry's age-based ratings guidelines. In 2008, the PTC conducted secret research that found large-chain video game retailers sold video games rated "M" for mature to minors 33 percent of the time and regional and local chains did so 47 percent of the time.
According to the guidelines of the Entertainment Software Rating Board, M-rated video games are unsuitable for children under 17. M-rated games "may contain intense violence, blood and gore, sexual content," according to the board's description.
The California law, which affected children under 18, required violent games to carry an "18" label and called for fines of as much as $1,000 per violation by retailers. It did not bar parents from buying such games for their under-age children.
The law never took effect because a federal judge blocked its enforcement. In 2009, a three-judge panel of the Ninth Circuit Court of Appeals in San Francisco unanimously upheld the judge's opinion, although it said some games digitally exhibit "what most people would agree amounts to murder, torture or mutilation."
Also June 27, the high court announced it would review a lower court opinion overturning federal indecency rulings against prime-time telecasts that included nudity and profanity. The case is Federal Communications Commission v. Fox. It will be considered in the next court term, which begins in October.
The Supreme Court's opinion, Brown v. EMA, is available online at http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf.