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Bloody Video Games May Get Same Age Curbs as Porn in Court Case

The main character in the “Postal II” video game leaves a trail of gore as he moves about town. The Postal Dude, as he is known, shoots police officers, beheads girls with a shovel and sets people on fire.

Along the way, he also might become a symbol of the breadth of the Constitution’s free-speech protections. The U.S. Supreme Court on Nov. 2 will consider whether the First Amendment permits a California law that would bar the sale of “Postal II” and other violent video games to minors.

The video-game industry is challenging the law, arguing that even the bloodiest of games are entitled to First Amendment protection. That argument may resonate at a Supreme Court that has proven skeptical of government speech regulations.

“Violence is a common aspect of all communicative speech and media and art forms,” said Kenneth L. Doroshow, general counsel of the Entertainment Software Association, which represents the video game industry and sued to block the California law. “The Bible itself has extremely graphic portrayals of violence. Violence is just part of the human condition.”

California says its law, which has never been enforced, is a way of helping parents shield their children from games the industry itself has said aren’t appropriate for minors. Governor Arnold Schwarzenegger and Attorney General Jerry Brown contend that violent games are akin to sexual materials, which the government can restrict to protect children. The law wouldn’t prevent parents from buying the games for their kids.

Parents Decide

“If a parent decides a violent game is OK for a kid, that’s one thing,” said James Steyer, chief executive officer of Common Sense Media, a San Francisco-based group that helped develop the law. “But a kid isn’t able to judge what is appropriate for them. We want parents to be the decision-makers on this, not the industry.”

The industry, with $10.5 billion in annual sales, has lined up dozens of supporters. The Entertainment Merchants Association, which represents the home entertainment industry, joined the Entertainment Software Association in pressing the suit. Their allies include Microsoft Corp., which makes the Xbox game console; Activision Blizzard Inc., the largest video-game publisher; and the Motion Picture Association of America.

Those critics say the California law accomplishes little in light of a voluntary rating system already used by virtually all game publishers and the largest retailers. The system assigns one of eight age-specific ratings to games -- with M signifying mature, or 17 and older, and AO indicating adults only, or 18 and older.

Impact Questioned

Activision Blizzard says in its court filing that the vast majority of retailers bar the sale of M-rated games to minors and don’t carry AO-rated games at all.

“It is exceedingly difficult for minors under the age of 17 to buy M-rated video games at the vast majority of game retailers unless accompanied by an adult,” the Santa Monica, California, company argued. “And it is virtually impossible for anyone -- minors or adults -- to buy AO-rated or unrated video games at brick-and-mortar retailers.”

Nine states, responding to what supporters of the law say was an intense industry lobbying effort, are also opposing the law, taking the unusual position of opposing a fellow state and arguing for restrictions on their authority.

California officials say the rating system confirms that some games -- including “Postal II” -- aren’t suitable for children.

“The California legislature sought to reinforce the right of parents to restrict children’s ability to purchase offensively violent video games,” Schwarzenegger and Brown argued in a court filing.

Risk to Children

The American Academy of Pediatrics said last year that exposure to violence in video games and other media “represents a significant risk to the health of children and adolescents.” The California chapter of the group is supporting the state at the Supreme Court.

Eleven other states are also backing California. Even so, the fight has taken on a “David and Goliath” atmosphere, according to Steyer. All told, opponents of the law filed 27 friend-of-the-court briefs, compared with four filed by outside supporters of the measure.

The California law, meant to take effect in 2006, would require violent video games sold in the state to be labeled and would ban their sale or rental to anyone under 18.

The law doesn’t clearly say whether it applies to online sales. State officials say the language suggests those sales are covered, though no court has ever decided that issue.

What’s Covered?

Opponents say the law is also unclear as to what videos would be covered. The measure restricts games that depict violence against human beings and appeal to “a deviant or morbid interest of minors,” are “patently offensive” and “lack serious literary, artistic, political or scientific value for minors.”

A federal trial judge concluded that the law covered “Postal II,” developed by Running With Scissors Inc. of Tucson, Arizona. Judge Ronald Whyte contrasted “Postal II” with another game, “Full Spectrum Warrior,” which involves U.S. army squads fighting in an Afghanistan-like urban environment. Whyte said the latter game “has some political value” and doesn’t permit killing in an “especially heinous, cruel or depraved” manner.

A San Francisco-based federal appeals court last year declared the law unconstitutional, saying the state hadn’t produced enough evidence that violent games cause physical and psychological harm to minors.

Courts elsewhere have reached similar conclusions, striking down laws restricting sales of violent video games enacted by eight other jurisdictions, including six states.

Animal Cruelty

A ruling favoring California could mark a major shift in the high court’s reading of the First Amendment. California is asking the court to extend a 1968 ruling that put sales of sexually explicit materials to minors outside the ambit of the First Amendment.

The Supreme Court in its term that concluded in June ruled 8-1 that depictions of animal cruelty were entitled to free- speech protection, rejecting Obama administration contentions that they should be categorically excluded from the First Amendment. That case didn’t involve sale of material to minors.

“Maybe there are some categories of speech that have been historically unprotected but have not yet been specifically identified or discussed as such in our case law,” Chief Justice John Roberts wrote for the court. “But if so, there is no evidence that ‘depictions of animal cruelty’ is among them.”

The case, which the court will resolve by July, is Schwarzenegger v. Video Software Dealers, 08-1448.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net.

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