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CA Violent Video Game Ban Struck Down

sjohnson
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Posted June 27, 2011 - By Stephen Johnson

Supreme Court Gaming Arguments -- The EMA/ESA Presents Their Case

In a major win for the video game industry and Free Speech, the United States Supreme Court has struck down California's game law. It was a 7-2 decision, ruling that California's law forbidding the sale or rental of violent games to minors do not comport with the First Amendment. In short: The Game industry won.

The 92-page decision boils down to the following passage:

"This country has no tradition of specially restricting children’s access to depictions of violence. And California’s claim that 'interactive' video games present special problems, in that the player participates in the violent action on screen and determines its out-come, is unpersuasive."

"We are thrilled by today's news," said Jennifer Mercurio, VP & General Counsel of the Entertainment Consumers Association in a a statement. "We had hoped that we would see this decision, and it's been a long time coming. That being said, there will probably be one or two legislators who attempt to test these new parameters, and the ECA will continue to fight for the rights of entertainment consumers."

The decision, written by Justice Antonin Scalia, regarded by many as the most conservative member of The Court, lays out an argument that acknowledges that research into the "harm" done by video games to minors shows only correlation, not causation, and so is not convincing. It also points out the level of violence contained in classic works of literature like The Odyssey, The Inferno, and even Grimm's Fairy Tales, as well categorizing California's attempt to regulate video games as "the latest episode in a long history of failed attempts to censor violent entertainment for minors."

Also discussed: The history of attempts to classify "new" forms of speech as special classes of protection. The Court has ruled that games are not "qualitatively different from other portrayals of violence" even though they are interactive.

Dissenting opinions were offered by Justices Clarence Thomas and Stephen Breyer, generally regarded as members of the court's right and left wings, respectively.

Justice Clarence Thomas' dissent lays out an argument that U.S. history clearly shows that the founders of our nation believed in the absolute authority of parents over their minor children. Summed up by:

"I am sure that the founding generation would not have understood 'the freedom of speech' to include a right to speak to children without going through their parents. As a consequence, I do not believe that laws limiting such speech—for example, by requiring parental consent to speak to a minor—abridg[e] the freedom of speech.”

Justice Breyer's dissent points out his belief that the California law at issue would not have created a new category of speech, and that it is already illegal to sell material depicting nudity to children. Further, according to Breyer, the law "prevents no one from buying a video game... all it does is prevent a child or adolescent from buying, without parental assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17."

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CA Violent Video Game Ban Struck Down
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