Monday, April 26, 2010
The Supreme Court today agreed to hear California's appeal of a Ninth Circuit ruling that overturned the state's restrictions on violent video games under the First and Fourteenth Amendments.
The case, Schwarzenegger v. Video Software Dealers Ass'n, involves a facial free speech challenge to California's newly enacted sales restrictions on violent video games. Under the law, "[a] person may not sell or rent a video game that has been labeled as a violent video game to a minor." A "violent video game" is a game in which a player engages in violent acts against an image of a human, if those acts do either of the following:
(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.
(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.
The Ninth Circuit ruled that the California law was a content-based restriction subject to strict scrutiny, and that the state failed to articulate a compelling government interest, that the law was not narrowly tailored, and that the state could have adopted other, less restrictive alternatives to meet its objective. The court thus overturned the law.
The issue before the Supreme Court is whether the Ninth Circuit should have applied strict scrutiny, or whether it should have applied the deferential "variable obscenity" or "obscenity as to minors" standard first mentioned in Ginsberg v. New York. Ginsberg held that states could prohibit the sale of sexually-explicit material to minors as long as "it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors." This rational basis standard applied even though the material would not have been considered obscene for adults.
The choice of tests here is similar to the choice the Court faced just last week in U.S. v. Stevens. In that case, the Court declined to carve out a new category of unprotected or lesser-protected speech for crush videos (depicting cruelty to animals), because crush videos have not been "historically unprotected" and didn't otherwise fit neatly into an established category. So too, violent video games: While some of the content in some of these games may fit well with obscenity or "obscenity as to minors," much of it does not and otherwise defies easy categorization.
If the Court in Video Software is as reluctant to categorize as it was in Stevens, look for it to apply strict scrutiny as a content-based restriction on speech. Then the Court will examine more carefully the link between violent video games and physical and psychological harm to minors--a link that the Ninth Circuit ruled the state failed to establish.