The U.S. Supreme Court has struck down California's attempt to restrict the sale of violent videogames to children, saying the state's controversial 2005 law was a violation of free speech.
Source: Activision
Call of Duty Black Ops
In a 7-2 ruling, the court said that despite California's argument that strict scrutiny laws (which govern the distribution of adult entertainment to minors) should apply to this sort of material, the First Amendment protections outweighed those concerns.
"Videogames qualify for First Amendment protection," the Court said in its ruling, written by Justice Antonin Scalia. "Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And 'the basic principles of freedom of speech ... do not vary' with a new and different communication medium."
The case—Brown v. Entertainment Merchants Association—revolved around a 2005 California law that made it illegal for retailers to sell violent videogames to anyone under 18. Then-governor Arnold Schwarzenegger had argued that violent games are on the same level as sexual materials, of which the government can restrict sales.
The Court soundly rejected that argument.
"Our cases 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,' " wrote the court.
"This country has no tradition of specially restricting children’s access to depictions of violence. And California’s claim that 'interactive' videogames present special problems, in that the player participates in the violent action on screen and determines its outcome, is unpersuasive. … Like the protected books, plays, and movies that preceded them, videogames communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection."
The ruling could have a dramatic impact on the typical American home. Over 46 million households have a videogame system, and many have more than one. Last year, consumers spent nearly $16 billion in the U.S. on videogame software—and over $9 billion more on gaming hardware and peripherals, according to the NPD Group, which tracks industry sales.
Justices Clarence Thomas and Stephen Breyer were in the minority. The inclusion of Chief Justice John Roberts and Justice Samuel Alito in the majority opinion surprised some court-watchers, since both seemed to be firmly strongly leaning towards California's side in oral arguments.
The videogame industry, as well as Hollywood's film and Tv industries, had feared that any restriction on videogame rights could open the door to incremental restrictions on other entertainment industries.
Justices seemed to concur.
"Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat," the Court said. "But these cultural and intellectual differences are not constitutional ones. Crudely violent videogames, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny."
M-rated titles—the rating which extremely violent games usually receive—do not make up the majority of games on the market. In 2010, they made up 25 percent of all games sold by unit. M-rated titles do, however, tend to be the industry’s biggest hits.
Activision has made billions from its “Call of Duty” franchise, which includes last year’s top-selling game "Black Ops." And Take Two Interactive Software relies heavily on the "Grand Theft Auto" franchise for its fiscal health. Even Electronic Arts, which in years past has been less dependent on the shooter genre, has shown an increased interest in those titles lately, because of their drawing power.
Previous attempts to regulate the sale of violent games have been struck down by lower courts, but this was the first time a case had made it as far as the Supreme Court. Opponents say violent videogames can have negative psychological effects on players—particularly young ones. Justices, though, said that simply targeting the gaming industry with those fears was not legal.
"Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its videogame regulation is wildly under inclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint," said the Court.
Had justices ruled in California's favor, it could have had a dramatic impact on the videogame industry—as well as retailers. Publishers say they would have had to make different versions of their games for different states, depending on the law there, which would have dramatically increased costs. Meanwhile, stores such as GameStop , Best Buy and Target would have had to set up stricter protocols to ensure minors do not buy the games, just as they do with cigarettes and alcohol.