M+E Daily

The U.S. Supreme Court handed entertainment retailers a victory today, with seven of its nine Justices striking down a California law that would have prohibited the sale or rental of violent videogames to minors.

Five Justices said the 2005 California statute ran afoul of the Constitution’s freedom-of-speech guarantee. Expressing a measure of approval for the videogame industry’s self-regulatory efforts — under which retailers limit the sale of “mature”-rated games to consumers age 17 and older — the majority of the Court declined to view violent games as materially different than books, movies, or other forms of entertainment that depict violent scenes.

“California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none,” wrote Justice Antonin Scalia in the majority opinion. “Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed.”

Scalia added that states could not regulate violent content under the “obscenity” exception to the Constitution’s First Amendment protection. The obscenity exception “does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct,’” Scalia wrote, citing an earlier Supreme Court decision that upheld a New York law restricting sales of sexually explicit material.

California, in its argument before the Court, also failed to prove that violent videogames caused harm to minors. The studies that the state submitted, Scalia wrote, “show at best some correlation between exposure to violent entertainment and miniscule 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.”

The Entertainment Merchants Association, which argued retailers’ case before the Supreme Court, hailed the ruling as a win for the game industry at large. “There now can be no argument whether videogames are entitled to the same protection as books, movies, music, and other expressive entertainment,” said EMA president Bo Andersen in a statement.

Although the Supreme Court decision is the final word on the 2005 California law, several Justices signaled that they would have upheld the prohibition — either as it was enacted or with certain changes to its wording.

Justice Samuel Alito, writing for himself and the Court’s Chief Justice John Roberts, praised the California law as a “pioneering effort to address what the state legislature and others regard as a potentially serious social problem: the effect of exceptionally violent videogames on impressionable minors, who often spend countless hours immersed in the alternative worlds that these games create.” For Alito and Roberts, the law failed only because its definition of “violent videogame” was “impermissibly vague.”

But with the majority of the Court seeming to require from lawmakers some proof that violent interactive content causes real-world harm, Alito lamented, “a state must surmount a formidable (and perhaps insurmountable) obstacle if it wishes to prevent children from purchasing the most violent and depraved videogames imaginable.”

Justice Stephen Breyer, who would have let the California law stand, questioned the wisdom of creating a distinction between violent content and obscene material.

“What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman,” Breyer wrote in dissent, “while protecting a sale to that 13-year-old of an interactive videogame 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 videogame only when the woman — bound, gagged, tortured, and killed — is also topless?”

The full Brown v. Entertainment Merchants Assn. decision is available at the Supreme Court’s website.