Supreme Court Rules Violent Video Games Protected As Free SpeechBy: Josh Wolford - June 27, 2011
The Supreme Court of the United States has just ruled on a California law that would have made the renting or selling of certain “extremely violent” video games to minors against the law. Retailers would have been subject to $1,000 fine per violation if the law would have been enacted.
But the SCOTUS has made a ruling on the case based on first amendment free speech rights, and in doing so has declared videos games on par with other forms of artistic expression like books, film and music.
The case was originally titled Schwarzenegger v. Entertainment Merchants Association, but the filing party was changed to Brown. The state of California originally passed bill AB 1179 which attempted to make the sale of the violent games illegal. Here is the criteria from the original bill on whats makes a game fall into that “ultra-violent” category –
A reasonable person, considering the game as a whole, would
find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the
community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary,
artistic, political, or scientific value for minors.
(B) Enables the player to virtually inflict serious injury upon
images of human beings or characters with substantially human
characteristics in a manner which is especially heinous, cruel, or
depraved in that it involves torture or serious physical abuse to the
The California courts subsequently ruled this law to be unconstitutional. The state appealed to the SCOTUS, and they agreed to hear the case.
And today, in a 7-2 ruling, the SCOTUS upheld that the new law is in fact unconstitutional. Writing for the majority, Justice Antonin Scalia says that the act “does not comport with the First Amendment” and that “video games qualify for First Amendment protection.”
From the opinion –
The most basic principle—that government lacks the power to restrict expression because of its message, ideas, subject matter, or content, Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573—is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test. See United States v. Stevens, 559 U. S. ___, ___. Unlike the New York law upheld in Ginsberg v. New York, 390 U. S. 629, California’s Act does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. Instead, the State wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children. That is unprecedented and mistaken. This country has no tradition of specially restricting children’s access to depictions of violence. And California’s claim that “interactive” video games present special problems, in that the player participates in the violent action on screen and determines its out- come, is unpersuasive. Pp. 2–11.
It looks like the court thinks that the California state law unjustly and unprecedentedly opens up a can of worms when it comes to content regulation. Scalia went on to say that the gaming industry’s voluntary rating system (E, Teen, Mature, etc.) allows enough help for parents who wants to restrict their children’s access to violent content. He also added that the act is “overinclusive” because not all parents want their children restricted to violent video games.
So, besides being a huge win for the gaming industry, does this ruling give even more legitimacy to video games as an art form? If so, that may ruffle Roger Ebert’s feathers a little bit.
You can expect the interwebs to respond heavily when either free speech or video games are discussed. Put them together and whoa. Here are some of the top responses of Twitter –
As kid who played a lot of Mortal Kombat, I hope SCOTUS said “Finish him!” before they struck down California’s violent video game law.
Yay for games being protected speech! While SCOTUS gets a lot of thngs wrong…they got this one right!
Supreme Court says video games are protected by the First Amendment. My question is why SCOTUS even had to be troubled with that.
The most shocking part about the SCotUS decision: Clarence Thomas DISSENTING from a majority opinion written by Scalia. MY MIND IS BLOWN.
SCOTUS strikes down Cali law that would have banned violent games being sold to minors. God forbid we ask parents to do their fucking jobs
Supreme Court put video games under the first amendment. And we’re art. Can I wear black turtlenecks and make esoteric compositions now? 😀
Most of the comments rolling in on Twitter take this shape and agree with the decision. There are a few, however, that have a different opinion –
Rejoicing in make believe murderland today. SCOTUS says ok to sell gory violent video games to minors. A decision in favor of $, as always.
SCOTUS says CA can’t ban sale of violent video games to minors. By the same logic, we shouldn’t restrict them from XXX movies. Insane.
I, for one, would not be the well-adjusted man that I am today without ripping out some spinal cord as a fatality in Mortal Kombat when I was nine. The argument can rage on whether young kids are harmed by violent video games, but the SCOTUS, with this ruling, is leaving that debate up to the parents. I’m sure most of us can be happy that with this decision, video games as an art form just scored another one in the win column.