Supreme Court Overturns Calif. Video Game Law

The Supreme Court has struck down a California law that bans the sale and rental of violent video games to children. In a 7-2 vote, the justices ruled that the law was unconstitutional and that it violated the free speech rights of children.

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MELISSA BLOCK, host:

This is All Things Considered from NPR News. I'm Melissa Block.

ROBERT SIEGEL, host:

I'm Robert Siegel, and we begin this hour with two major decisions from the Supreme Court. On the last day of its current term, the court invalidated an Arizona law providing public financing for election campaigns. We'll have more on that case in just a few minutes. But first, the Supreme Court also struck down California's ban on the sale of violent video games to children. A seven-to-two majority said the law violated the Constitution's guarantee of free expression.

NPR legal affairs correspondent Nina Totenberg has more on that decision.

NINA TOTENBERG: In 2005, California enacted a law that imposed a $1,000 fine on retailers anytime they sold a violent video game to a minor. The state cited social science studies that it said showed kids who played these games for many hours are desensitized to violence and become more aggressive in their behavior. But the U.S. Supreme Court rejected those arguments today and struck down the law. Technically, the court was split seven to two, but the various concurring and dissenting opinions more closely resembled a five to four split.

Writing for the five-member court majority, Justice Antonin Scalia said video games are like books, plays and movies, expression protected by the First Amendment and the government has no free-floating power to restrict the ideas to which children may be exposed. Since the founding of the Republic, he said, the court has permitted restrictions on speech only in a few very narrowly defined areas - obscenity, incitement and fighting words.

Violence cannot be shoehorned into any of those categories, he said, even when the violent expression is consumed by children. With great gusto, Scalia noted that there is no shortage of gore in the books parents routinely read to children. Grimm's fairy tales are grim indeed, he observed. Cinderella's wicked stepsisters have their eyes pecked out by doves, and Hansel and Gretel kill their captor by baking her in the oven.

In truth, said Scalia, California's ban on violent video games is just the latest in a long series of failed attempts to censor violent entertainment for minors, be it dime store novels, movies or even Superman comics, which in their time were portrayed as leading to juvenile delinquency. The justifications offered in this case against violent video games, he said, are no better than those offered in the past against other forms of violent entertainment.

Joining him in the majority were Justices Kennedy, Ginsburg, Sotomayor and Kagan, an ideological smorgasbord. Defenders of the ban on violent video games were, of course, disappointed but took credit for the tough labeling and sales restrictions that the video game industry voluntarily put into place after the California law was enacted.

Here's James Steyer of Common Sense Media.

Mr. JAMES STEYER (CEO, Common Sense Media): I think we definitely hit the industry over the head with a 2X4. Over the five or six years, the industry has become far more accountable and much more careful about selling those kind of games to minors.

TOTENBERG: As Cardozo law professor Marci Hamilton observes, the court's majority opinion in the case took up just 18 pages.

Prof. MARCI HAMILTON (Cardozo School of Law): The majority decision reads as though this was the easiest case in the world to decide on straightforward free speech principles.

TOTENBERG: The dissenting and concurring opinions, however, took up a grand total of 56 pages, more than three times the space as the majority opinion. Two justices, Samuel Alito and Chief Justice Roberts, concurred in the judgment, but on much narrower grounds. They would've invalidated the law because the definition of violent videos was unconstitutionally vague.

But writing for the two, Alito said we should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. Describing with horror some of the violent games he'd found in his research, Alito said the court majority was acting prematurely in dismissing the possibility that these games could prove injurious to young people.

Justices Clarence Thomas and Stephen Breyer each dissented. Thomas said the framers of the Constitution did not envision any freedom of speech at all for minors, that indeed the founders believed that parents had absolute authority over their children. Justice Breyer said the California law was no more than a modest restriction on expression. He said that the legislature is best equipped to evaluate psychological studies on the impact of violent video games.

Nina Totenberg, NPR News, Washington.

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