This is the first time the country’s top court has considered a case involving sales restrictions within the video game industry.
Despite being signed into law by Gov. Arnold Schwarzenegger in 2005, the controversial proposition never took effect. A U.S. District Court blocked it after the gaming industry sued the state, citing First Amendment concerns.
In February of 2009, the 9th U.S. Circuit Court of Appeals ruled that the law violated the rights of minors under both the First and 14th Amendments.
California appealed the decision to the Supreme Court in May.
Justices were scheduled to meet Tuesday in a closed conference, where they will decide whether to put the case on the docket. A public information officer at the court said the orders list, which will either grant the request for oral arguments (and move the case forward) or deny it with no further comment (letting the lower court ruling stand), is expected to be issued as soon as Wednesday.
District and appeals courts have historically rejected attempts by states to restrict video game sales. Typically, the courts have ruled that games, including Take Two Interactive Software’s “Grand Theft Auto” franchise, are protected speech.
California’s law approached the issue a bit differently, arguing that there was a link between in-game violence and real-world violence. The justifications that prohibit minors from buying pornography, it continued, could also apply to the sale of violent video games.
The gaming industry, though, maintains the studies showing that link are fundamentally flawed—and those sorts of restrictions could open the door for states to limit access to other material, justifying it as a method to protect children.
The 9th U.S. Circuit Court appeared to decisively agree with the video game industry. Beyond the decision overturning the law, Judge Alex Kozinski pointedly asked the state during arguments: “Is there anything out of limits for the legislature to prohibit to minors? What about games where people eat unhealthy foods and get fat? ... Why not a law targeting games that teach children bad living habits, such as eating unhealthy food or using plastic bags?”
“M”-rated games (the gaming industry’s equivalent of a film’s R rating) only account for 16 percent of the titles sold each year, according to the Entertainment Software Association.
Many, though, are high profile games and widely associated with the industry. Microsoft, for instance, relies heavily of the “Halo” franchise for revenue. And “Grand Theft Auto” games were a critical component in the success of Sony’s PlayStation 2.
States that have lost those regulation battles typically are required to reimburse the Entertainment Software Association, the video game industry’s trade group, for its legal fees. Given the cost of this, no state has previously appealed a case to the Supreme Court.
Schwarzenegger, though, vowed in a statement to “vigorously defend” the law when the state announced plans to take the case to the high court.
"By prohibiting the sale of violent video games to children under the age of 18 and requiring these games to be clearly labeled, this law would allow parents to make better informed decisions for their kids," he said.
The ESA, that same day, said it was confident the appeal would meet the same fate as other regulation attempts.