Supreme Court Knocks Down Violent Video Game Law

Mon, June 27th, 2011 at 10:36am PDT | Updated: June 27th, 2011 at 11:20am

Video Games
Robert Workman, Contributing Writer

Violent games such as the "Grand Theft Auto" series will see no governmental interference.

The Federal Government has decided that video games are no different than comic books and films.

In a decision today that will no doubt ring as a huge victory for the video game industry, the Supreme Court sided with the industry in the case of Brown vs. Entertainment Merchants Association (formerly Schwarzenegger vs. Entertainment Merchant Association). In essence, the judgment states that the proposed law in the argument was unconstitutional on First Amendment grounds. Reports have popped up across the web from ABC News to the LA Times.

The court argument began months ago, when the state of California (then handled by Arnold Schwarzenegger before he left office) attempted to put a law into place that would prevent the sale of Mature-rated games to minors (a policy most stores are following these days anyway). The law didn’t last long, as it was struck down shortly after it went into effect. At that point, the argument was taken to the Supreme Court, where representation for the state and the industry argued for weeks before today’s landmark decision was handed down.

In a 7 to 2 vote, Justice Antonin Scalia stated for the Court's majority that "The most basic principle – that government lacks the power to restrict expression because of its message, ideas, subject matter, or content – 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." In other words, they fall under freedom of speech protection, the same as other types of media – including film and comic books.

Scalia continued by stating that the US has no tradition of protecting children from violent media, feeling that California’s attempt to make video games an exception to the rule “unpersuasive”. But he did state, "Reading Dante is unquestionably more cultured and intellectually edifying than playing 'Mortal Kombat,' but these cultural and intellectual differences are not constitutional ones."

"For better or worse, our society has long regarded many depictions of killing and maiming as suitable features of popular entertainment, including entertainment that is widely available to minors," Justice Samuel Alito concurred.

While there will no doubt be battles in the future with politicians or parents using violent games to make one political point or another, this is a huge victory for those within the video game industry – not just the players, but also the developers and publishers who make the games. This shows that their medium is just as well protected as others, and also saves retailers from going through any additional strain of having to filter out content unjustly. Everyone can play on in peace (though, obviously, parents might still want to watch out for what kids play).

UPDATE: Shortly after this story broke, CBR News received the following from the Comic Book Legal Defense Fund:

Official Press Release

CBLDF Cheers Free Speech Victory in Brown v. EMA!

The Comic Book Legal Defense Fund applauds today's Supreme Court decision to affirm the First Amendment rights of creators, readers and retailers by denying states the ability to create new restrictions on violent content in Brown v. EMA.  In a 7-2 decision, the high court struck down a California law that would have banned the sale and rental of violent video games to minors, and would have made violence a new category of unprotected speech.

The CBLDF was active in opposing the law, and filed its own amicus brief arguing that the California law was unconstitutional by citing a history of moral panics, most notably the anti-comics fervor that nearly dismantled the comics industry in the 1950s. The arguments presented in CBLDF’s brief were part of the discussion in oral arguments, and cited in the Court's majority decision.

CBLDF Executive Director Charles Brownstein says, “We’re extremely pleased that the Court’s decision preserves the First Amendment rights of the users and creators of video games, and that they resisted California’s desire to establish new categories of unprotected speech. We’re also gratified that our discussion of the comics industry’s painful experience with moral panic and legislative meddling helped inform the positive outcome we see this morning.”

CBLDF legal counsel Robert Corn-Revere of Davis Wright Tremaine wrote the brief.  He says, "The Supreme Court's decision in Brown v. EMA applied well-established First Amendment principles to find the California law is unconstitutional.  In reaching his conclusion, Justice Scalia's majority opinion noted the crusade against comics led by Dr. Frederic Wertham and observed that it was inconsistent with our constitutional traditions.  It traced the long history of censorship involving media the government claimed 'corrupted youth -- from movies to comic books -- and held that such crusades cannot be reconciled with the First Amendment."

Please visit www.cbldf.org for more news and analysis on this important decision, including analysis by Mr. Corn-Revere to be published later this afternoon.  Please support the CBLDF’s defense of free speech issues like this by making a donation today!

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