Nov. 2 (Bloomberg) -- U.S. Supreme Court justices signaled they may strike down a California law barring the sale of violent video games to minors, telling a state lawyer defending the measure that it might violate the constitutional free-speech guarantee.
Hearing arguments in a case that may test their understanding of popular culture and emerging technologies, several justices today said they knew enough to worry about the implications were they to uphold the law. They asked whether states could similarly shield children from exposure to movie and comic-book violence and to depictions of smoking and drinking.
“Could you get rid of rap music?” Justice Sonia Sotomayor asked the state lawyer. “Have you heard some of the lyrics of some of the rap music?”
A decision upholding the measure might lead to similar laws around the country -- and new compliance costs for the video game industry, which has $10.5 billion in annual sales. Six other states have enacted similar measures, and all have been struck down in court.
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. The measure is being challenged by two industry trade groups.
Compared to Pornography
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. Violent games are “no less harmful to the development of minors” than pornography, the state’s lawyer, Zackery Morazzini, argued.
The law wouldn’t prevent parents from buying the games for their kids.
Before a packed courtroom in Washington, several justices said the law might be too vague to pass constitutional muster. Others resisted the state’s contention that sales of violent games to children don’t warrant First Amendment protection.
“It has never been understood that the freedom of speech did not include portrayals of violence,” Justice Antonin Scalia said. “You’re asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment.”
Justice Anthony Kennedy voiced similar concerns, saying California was “asking us to go into an entirely new area where there is no consensus” by carving out a violence exception to the First Amendment.
Justices Ruth Bader Ginsburg and Elena Kagan also voiced concerns about the law. Kagan showed at least a passing familiarity with the video game business, asking whether the law would restrict Midway Games Inc.’s “Mortal Kombat.”
That was an “iconic game, which I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing,” Kagan said. Her remark prompted Scalia to quip, “I don’t know what she’s talking about.”
At the same time, several justices made clear they wouldn’t preclude the state from taking any steps to shield children from violent games.
Justice Stephen Breyer asked the video game industry’s lawyer, Paul Smith, whether the state could block children from buying games that depicted “total gratuitous torture.”
“If that’s what it restricted, why is that such a terrible thing?” Breyer asked.
Exposed to Gore
Chief Justice John Roberts read a description of the video game “Postal II,” which includes scenes of decapitation and setting people on fire, and said American society has long tried to shield children from that type of gore.
“We protect children from that,” he said. “We don’t actively expose them to that.”
Outside the court, a handful of opponents of the law demonstrated on the sidewalk. Some carried signs accusing Schwarzenegger, who starred in action movies before turning to politics, of being a hypocrite for defending the law.
The video game industry says 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.
Smith argued that California “has not shown there is a problem, let alone a compelling problem requiring regulation.”
The industry 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.
Nine states, responding to what supporters of the law say was an intense industry lobbying effort, are attacking the law, taking the unusual position of opposing a fellow state and arguing for restrictions on their authority. Eleven other states are backing California.
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.
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. Violators could be fined as much as $1,000.
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.”
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.
The case, which the court will resolve by July, is Schwarzenegger v. Entertainment Merchants Association, 08-1448.
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