Violent Video Games Go (Back) To Court
California Civil Code § 1746,1 a law enacted in 2005, criminalized the sale or rental of certain violent video games to minors. The law didn’t last long. A federal court declared it unconstitutional last year2 and it wasn’t hard to see why.
As a content-based regulation, § 1746 requires a strict scrutiny analysis,3 which means that such a law is only constitutional when the state (1) has a compelling interest and (2) the law uses the least restrictive means to further that interest. The State argued that it had a compelling interest in preventing minors from accessing violent games and presented a study that purported to link violent behavior with violent games. The Court didn’t buy the State’s argument, finding that the plaintiffs raised serious questions about whether there is a causal connection between access to such games and harm to children. In the end, the plaintiffs were awarded an injunction against enforcement of the statute. Fast-forward to October 2008, and § 1746 has reared its ugly head again in the form of an appeal by Governor Schwarzenegger.
The video game industry is no stranger to controversy over game content. In 1994 it established a self-regulatory organization called the Entertainment Software Rating Board (ESRB) that applies ratings to all video games and sets certain advertising guidelines that publishers agree to. Its ratings mimic the ones used by the motion picture industry, with distinct categories for age groups like “Everyone,” “Teen,” and “Mature 17+.” Like the film rating system, the ESRB’s ratings are technically voluntary, but that doesn’t mean they’re without consequences. For example, Wal-Mart will only stock ESRB-rated games and won’t sell any games that carry an “Adults Only 18+” rating. Wal-Mart is currently the U.S.’s biggest reseller of games, so that means an AO rating is a kiss of death for most titles. A few months ago when I was working for a game publisher making a game based on the SAW movies, this was a significant concern. Ratings have real effects on the way publishers do business.
For what it’s worth, I don’t disagree that some games can be harmful to children. Grand Theft Auto IV, Soldier of Fortune: Payback, Brothers in Arms: Hell’s Highway, and many other games contain content that isn’t suitable for children. But so do at least as many Hollywood movies and popular TV shows. The industry recognizes this, which is why self-regulating programs like the ESRB have developed to keep violent games out of children’s hands while ensuring that games are still widely available. But more importantly, it’s not the state government’s place to restrict the sale of content that qualifies as speech. As courts have already found in other states that tried similar legislation including Arizona, Illinois, Louisiana, Massachusetts, and Oklahoma, this kind of law can’t survive a First Amendment attack on its face.
Next Wednesday when the appeal comes before the Ninth Circuit, I suspect the Court will agree. There isn’t really any uncertainty there. The real question here is whether lawmakers in Sacramento and other state legislatures will get the message as well.
- Formerly known as California Assembly Bill 1179. [↩]
- Video Software Dealers Ass’n v. Schwarzenegger, 2007 WL 2261546 (N.D. Cal. Aug. 6, 2007). [↩]
- R. A. V. v. City of St. Paul, 505 U.S. 377 (1992). [↩]
Related posts:
0 Responses to “Violent Video Games Go (Back) To Court”