Supreme Court rejects ban on violent video games

June 28th, 2011 by Staff

WASHINGTON — The Supreme Court’s groundbreaking decision Monday striking down California’s ban on the sale of violent video games to minors represents a landmark moment for the gaming industry and lifts a threat to its creative development.

The 7-2 decision, affecting a $25-billion-a-year industry and more than 100 million gamers, immediately ricocheted across the Internet, as video game fans and developers hailed the victory on Twitter and Facebook. The ruling ensures the industry will keep making titles such as L.A. Noire, which has been compared to big-budget R-rated crime thriller films, they say.

“Had this decision gone the other way,” said Ted Price, president of Insomniac Games, known for the games Ratchet & Clank and Resistance, “it would have left us handcuffed wondering whether or not what we create would fall under the restrictions and thus be illegal to sell to minors.”

James Steyer of Common Sense Media, a parents’ advocacy group, disagreed with the court’s First Amendment protection for video games, saying “This is a sanity issue, not a censorship issue.”

STORY: High court strikes down Ariz. campaign finance law
Justice Antonin Scalia’s robust opinion on behalf of five justices, however, said that while video games might not be as “intellectually edifying” as a great work of literature, they deserve similar free-speech protection.

And he rejected arguments that video games present special problems because they are “interactive” with players participating in the violent action on screen. All literature is essentially interactive, Scalia said.

Getting to the crux of the state’s argument that violent content should be kept from youths under 18 as sexually explicit materials can be, Scalia said there is no tradition in America of restricting children’s access to depictions of violence.

“Grimm’s Fairy Tales, for example, are grim indeed,” he wrote, observing that California’s ban was the latest in a long series of failed attempts to censor violent entertainment for minors.

Monday’s ruling ensures that any limits on the sale of video games are set by the industry, which already has a rating system in place to warn consumers about the level of violence and other elements.

About 5% of games fall into a category rated “mature” and recommended to those 17 years old and older. Those games, however, account for about a quarter of all video game sales.

The nation’s gaming audience has been aging, creating greater demand for video games with more mature themes. Entertainment industry groups that challenged California’s law said a victory for the state would have chilled video game publishers’ willingness to put out games with mature themes. Eleven states had sided with California before the high court.

Activision Blizzard’s chief public policy officer George Rose added that the industry is liberated from the litigation, yet does not view it as “carte blanche to just go out and start to create a bunch of violent video games.”

As the audience for video games has aged — the age of the average game player is 37 and nearly one-third of gamers are over the age of 50 — game makers have adjusted.

“For us to be successful as an industry, we will offer a wide range of media to appeal to that full market, much as you have seen the motion picture industry do,” said Michael Gallagher, president of video game industry trade group, the Entertainment Software Association. The ESA was one of two industry groups that started the legal challenge.

Gallagher emphasized the importance of the court’s sweeping First Amendment protection to video games: “It’s a very historic day for the video game industry.”

Video violence a concern
Yet there were some cautions for the industry in Monday’s case, which had been argued on Nov. 2 and was the longest pending case of the annual session that ended Monday. Four justices — two of whom concurred only in the judgment against California and two who dissented — took issue with the Scalia majority’s dismissal of a link between video watching and harm to children.

Justice Samuel Alito, joined by Chief Justice John Roberts, referred to “the effect of exceptionally violent video games on impressionable minors, who often spend countless hours immersed in the alternative worlds that these games create.” Alito said he “would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem.”

Alito and Roberts joined the majority in voiding the law, saying it failed to sufficiently define a “violent” game. Unlike Scalia, however, they believed states could restrict game sales with a narrowly written statute.

California’s law, passed in 2005 and signed by then-California Gov. Arnold Schwarzenegger, prohibited the sale or rental of a “violent” video game to anyone under 18. It defined a violent video game as one that depicts “killing, maiming, dismembering, or sexually assaulting an image of a human being” in a way that appeals to a deviant or morbid interest of minors.

Justices Clarence Thomas and Stephen Breyer dissented separately.

Thomas said minors lacked free speech rights under the original understanding of the First Amendment. Using another rationale, Breyer said the law should have been upheld under a 1968 precedent, Ginsberg v. New York, that said sexually explicit materials could be kept from minors.

“What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman,” he wrote, “while protecting a sale to that 13?-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman — bound, gagged, tortured, and killed — is also topless?”
Designers will use caution

Game designers and publishers said that while the ruling would not significantly alter their day-to-day activities, it lifts a cloud that had hung over the industry once the high court decided to hear California’s appeal. “I don’t actually think we ever had any doubt that the Supreme Court would rule this way,” said Bobby Kotick, CEO of Activision Blizzard, the U.S. No. 1 publisher of games, including Call of Duty and World of Warcraft.

Video game developers are unlikely to push the limits, says Ken Levine, creative director for Irrational Games, the studio that created BioShock.

Compared with films, where “torture porn” such as the Saw series have become a common genre, games rarely delve in “the most extreme depictions of violence,” Levine said.

“Game developers have realized that in general, extreme violence is not a recipe for creative or commercial success. However, it’s critical that such a realization comes from ourselves and from our dialogue with gamers — or in the case of kids, their parents — not from the government.”

Levine said he expects game designers to “move forward empowered, but also with a sense of responsibility.” He said creators understand the power of their work and would continue to self-regulate, rather than have government exert its authority over their work.

Effect on children debated

An overriding point of contention between the Scalia majority and other justices turned on the value of video games and their potentially dangerous effect on children.

Steyer, CEO of Common Sense Media, a San Francisco-based parents advocacy group focusing on technology, said the ruling could heighten public debate on the dangers of certain video games. “This issue is only going to get bigger,” he said, “now that children can download even to their cellphones.”

California state Sen. Leland Yee, a Democrat from San Francisco who sponsored the voided law, said children’s well-being is still at risk: “These kinds of games really train kids in how to hurt people. This issue is not going to go away.”

The Scalia majority, which included Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, spurned California’s attempts to show the harmful effects on children. “The state’s evidence is not compelling,” Scalia wrote. Studies “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.”

Scalia also responded to Alito’s objection to comparing the experience of playing a game to reading a book. “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat,” Scalia wrote. “But these cultural and intellectual differences are not constitutional ones.”

Other states were divided over California’s effort at the high court. Besides the 11 states that backed California, nine were opposed, arguing that such a ban would keep law enforcement away from more urgent safety concerns.

The U.S. Court of Appeals for the 9th Circuit had declared California’s law unconstitutional on First Amendment grounds, in keeping with other lower courts that had considered similar state laws.

Scalia said Monday’s decision is consistent with high-court precedent, including a decision last term in which the justices rejected a federal law that banned the sale of depictions of animal cruelty. In that case, the justices provided a roadmap for Congress to write a narrower law that would restrict “crush videos.” They had prompted the 1999 ban and typically show women’s heels digging into small animals.

That kind of roadmap did not emerge Monday. The Scalia majority, after detailing a history of gory children’s literature, including Hansel and Gretel killing their captor by baking her in an oven, said states simply could not keep violent materials from children. “That is unprecedented and mistaken,” Scallia said.

Leave a Comment

Please note: Comment moderation is enabled and may delay your comment. There is no need to resubmit your comment. You are free to voice your opinion but please keep it clean. Any comments using profanity will be rejected.