Supreme Court overturns California game ban

Can states restrict the sale of violent video games to children? The U.S. Supreme Court ruled with a resounding "no" earlier today. As the AP reports, seven of the nine justices voted to overturn a California law that would have fined retailers for selling or renting out violent games to minors. Fines would gone as high as $1,000 per transgression.

Justice Antonin Scalia, who delivered the opinion of the Court (PDF), holds that "speech about violence is not obscene" and that games are therefore protected under the First Amendment. He writes:

No doubt a State possesses legitimate power to protect children from harm, . . . but that does not include a free-floating power to restrict the ideas to which children may be exposed. “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik, supra, at 213–214.

Scalia goes on to say that children are routinely exposed to violent entertainment beside games:

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. 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. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54

The opinion goes on to point out that California cannot show "a direct causal link between violent video games and harm to minors," nor can it show "that the Act’s restrictions meet a substantial need of parents who wish to restrict their children’s access to violent video games but cannot do so."

Among the two justices in favor of the California law are Justice Clarence Thomas, whose dissenting statement reads, "'The freedom of speech,' as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians." Scalia counters that no state or federal case supports that view, however.

Thomas does have a point in that minors simply don't have the full range of rights enjoyed by adults. That said, even the most protective legislation is no substitute for good parenting—and it's not like wily teenagers haven't been able to procure, er, grown-up entertainment even if they can't purchase it directly.

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