Supreme Court rejects California ban on violent video games

supreme court rejects california ban on violent video games lady justice getty
Classen Rafael/Getty Images

In a 7-2 ruling today, the Supreme Court upheld a Federal Appeals Court ruling that overturned California legislation banning the sale of mature-rated games to minors. The law would have also punished sellers with a $1,000 fine for each instance, putting M-rated video games on the same level as pornography and cigarettes. The Supreme Court verdict was a major victory for the video game association and its allies in the entertainment industry that claimed the law went too far and infringed on the First Amendment rights of the video game industry. The entertainment allies also claimed that the law would massively impact the video game industry’s viability, as retailers would be much less inclined to sell games and take the risk. The Court agreed, and ruled that “Even where the protection of children is the object, the constitutional limits on governmental action apply.”

The ruling puts to rest the controversial law introduced by the Californian legislature in 2005. The law claimed a correlation between violent video games and a rise of violent behavior in children that played those games. Several studies were cited, and the nature of video games was said to be more influential than other media due to the interactive aspect.

The law was immediately challenged by the Video Software Dealers Association (VSDA) who brought suit. Before the law had time to be enacted, a District Court judge issued preliminary injunction blocking it. The District Court ruled the law unconstitutional, and the judgment stated that the evidence of a connection between violence in children and video games was insufficient. The ruling also disputed the claim that the interactive nature was any more harmful than any other media. The studies cited were also called into question.

California immediately appealed, and then Governor Schwarzenegger — who for the sake of irony it should be mentioned built his career on violent movies — vowed to fight on. The case then went to the Ninth Circuit Appeals Court, who also ruled in favor of the VSDA and claimed that it violated the First Amendment. The case was then appealed to the Supreme Court, which agreed to hear it. Arguments were heard in November.

All 92-pages of the case, which is officially known as Brown, Governor of California, Et Al. v. Entertainment Merchants Association Et Al. (or Brown v. Entertainment Merchants Assn. as it will be more commonly referred to), were released earlier today. In the 7-2 ruling , Justice Scalia delivered the opinion of the court on behalf of Justices Kennedy, Ginsburg, Sotomayor and Kagan. Justice Altio concurred with the ruling but filed his own opinion that Chief Justice Roberts joined. Justices Thomas and Breyer each filed dissenting opinions.

Like the protected books, plays, and movies that preceded them, video games 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. Under our Constitution, “esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.

The general consensus of the court was that the law went too far in its scope and infringed upon the First Amendment rights of the video game association. It also explained the Court’s rationale for each of the primary points that the lawyers for the Californian law claimed.

Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint. California also cannot show that the Act’s restrictions meet the alleged substantial need of parents who wish to restrict their children’s access to violent videos. The video-game industry’s voluntary rating system already accomplishes that to a large extent. Moreover, as a means of assisting parents the Act is greatly overinclusive, since not all of the children who are prohibited from purchasing violent video games have parents who disapprove of their doing so.

California continued to cite a handful of studies as one of the primary reasons in claiming that violent video games have a negative effect on children. The studies have been repeatedly criticized by each court that has reviewed the data, and the Supreme Court is no different.

The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.

Even taking for granted Dr. Anderson’s conclusions that violent video games produce some effect on children’s feelings of aggression, those effects are both small and indistinguishable from effects produced by other media. In his testimony in a similar lawsuit, Dr. Anderson admitted that the “effect sizes” of children’s exposure to violent video games are “about the same” as that produced by their exposure to violence on television.

The opinion of the court is that the California legislation both overstepped its bounds, and tried to classify video games unfairly. The ruling cites several instances in pop culture that are also graphically disturbing, including literature that is taught in school to children of varying ages. The brutal murder of the character Piggy in William Goulding’s Lord of the Flies is mentioned, as is Homer’s The Odyssey, when Odysseus blinds Polyphemus the Cyclops. Grimm’s Fairy Tales were also specifically mentioned, as they “contain no shortage of gore” but are meant for children of a young age.

The interactive nature of video games was also a key point in the arguments from California, and the Court weighed in on that as well.

The better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.

Justice Alito and Chief Justice Roberts both agreed with the ruling but for different reasons, and Alito issued his own opinion. Alito and Roberts agreed with the spirit of the law, but felt that it went too far and was not presented properly, which could leave an opening—albeit a narrow one—for future efforts to further regulate the sale of M-themed video games.

“I would hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires. I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us,” Alito wrote.

Justice Thomas and Breyer both dissented and wrote their own opinions. Thomas claimed that the law was just, as it left the decision of whether or not a minor should play the game to the parents.

“‘The freedom of speech,’ as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians,” Thomas wrote.

Breyer opined that the Court should yield to the legislature in this type of case, especially when it involves technical matters.

“In my view, the First Amendment does not disable government from helping parents make such a choice here — a choice not to have their children buy ex­tremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children,” Breyer wrote.

But despite the two dissenting opinions, the Supreme Court has ruled, and after six years of contentious litigation that rallied supporters on both sides, the California law has been overturned. That won’t necessarily stop the California Legislature from attempting to introduce a new law with a similar slant but a more specific focus. But if it does, the opponents will now have this case to rally around. And in the words of the Supreme Court “the basic principles of freedom of speech . . . do not vary.”

Gaming

Activision reveals game modes, multiplayer maps for Call of Duty: Mobile

Activision revealed the first five modes for Call of Duty: Mobile. The publisher also highlighted five maps from previous entries in the franchise, but said that the game will not only feature multiplayer modes.
Movies & TV

Prime-time TV: Here are the best shows on Amazon Prime right now

There's more to Amazon Prime than free two-day shipping, including access to a number of phenomenal shows at no extra cost. To make the sifting easier, here are our favorite shows currently streaming on Amazon Prime.
Movies & TV

Skip the flowers and sunshine this spring and watch the best shows on Hulu

It's often overwhelming to navigate Hulu's robust library of TV shows. To help, we put together a list of the best shows on Hulu, whether you're into frenetic cartoons, intelligent dramas, or anything in between.
Gaming

The best Nintendo Switch games, from Breath of the Wild to Rocket League

The Nintendo Switch's lineup started off small, but games have steadily released as the console continues through its second year. Here are the best Nintendo Switch games available now.
Movies & TV

The best shows on Netflix right now (May 2019)

Looking for a new show to binge? Lucky for you, we've curated a list of the best shows on Netflix, whether you're a fan of outlandish anime, dramatic period pieces, or shows that leave you questioning what lies beyond.
Gaming

These are the must-have games that every Xbox One owner needs

More than four years into its life span, Microsoft's latest console is finally coming into its own. From Cuphead to Halo 5, the best Xbox One games offer something for players of every type.
Gaming

The Astro A40 TR and Mixamp Pro TR turn the volume up on pro gaming audio

The A40 TR and Mixamp Pro TR are Astro's latest entries to professional grade gaming gear. The two accessories hold their own alone, but together their true potential is fully realized.
Gaming

These Xbox One exclusives are the definition of quality over quantity

Xbox One has a prestigious collection of handpicked titles that you can't play on other consoles. Here are the latest and greatest Xbox One exclusives, including some that are also available on PC
Computing

Give your PC a new lease on life by upgrading its core components

Older PCs can still be great tools for work and play, they just need a little upgrade now and then. Here are the best upgrades you can make to your PC to make it feel fresh and fast once again.
Gaming

You're not a true fan without these Nintendo Switch exclusives

Who doesn't love a good Nintendo game? If you're looking for great first-party titles for your Nintendo Switch, take a look at our list of the very best exclusives available right now.
Gaming

Treyarch takes over 2020 Call of Duty, will make Black Ops 5

Treyarch is taking over development for the 2020 Call of Duty, which will be Black Ops 5, Kotaku reported. Raven was initially leading the project alongside Sledgehammer, but the two studios frequently got into arguments.
Gaming

World of Warcraft Classic beta testers confusing old-school features for bugs

Blizzard released a "not a bug" list for World of Warcraft Classic, as beta testers apparently kept reporting intended features. The list includes the "Your skill in Protection increased to 15" message that appears upon leveling up.
Gaming

Next Apex Legends patch will fix Gibraltar’s sticky shield and hit registration

Respawn is set to roll out a new patch for Apex Legends early this week. The update will look to fix several issues in the game, including Gibraltar's sticky shield, the Fortified passive ability, and incorrect hit registration.
Gaming

Your PlayStation 4 game library isn't complete without these games

Looking for the best PS4 games out there? Out of the massive crop of titles available, we selected the best you should buy. No matter what your genre of choice may be, there's something here for you.