Supreme Court Weighs Ban On Violent Video Games

The U.S. Supreme Court heard arguments Tuesday in a California case testing whether states may ban the sale or rental of violent video games to minors.

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Generations, ideology and constitutional doctrine all clashed at the U.S. Supreme Court today. The justices heard arguments in a case testing whether states may ban the sale or rental of violent video games to minors.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: California imposes a thousand dollar-fine each time a minor is sold a video game that includes killing, maiming, dismembering, or sexually assaulting an image of a human being in a way that is patently offensive, appeals to deviant or morbid interest and lacks serious, literary, artistic, political or scientific interest.

That's a mouthful, and the lower court struck down the statute as unconstitutional.

Today, conservative and liberal labels were not necessarily good predictors for where each justice stood, with liberal Justice Stephen Breyer appearing sympathetic to the law, and conservative Justice Antonin Scalia leading the attack on it.

What is a deviant, violent video game? Scalia asked California's deputy attorney general, Zackery Morazzini.

Answer: Deviant would be departing from established norms.

There are established norms of violence? Scalia asked incredulously, noting that "Grimm's Fairy Tales" are pretty violent, too.

Justice Ginsburg: Why would it be okay for the state to limit minors' access to video games but not movies or books?

Answer: It is the interactive nature of the games, where kids often act as the aggressor.

Justice Alito: What age group are you talking about - a 17-year-old, or a 10-year-old?

Answer: Anyone under 18.

Justice Kagan: How do we separate violent games that are covered from those that are not covered?

Answer: That would be for the jury to decide.

Justice Scalia: A law that has criminal penalties has to be clear. How is the manufacturer to know whether a particular violent game is covered or not?

Answer: Just as the states have barred certain sexual material from minors, they can bar violent material, too.

Justice Scalia: What will be next - barring the portrayals of excessive drinking or smoking? The ratifiers of the Constitution always understood that freedom of speech did not protect obscenity. But it has never been understood that freedom of speech allowed punishment for portrayals of violence.

Justice Alito, caustically: I think what Justice Scalia wants to know is what James Madison thought about video games.

Justice Kagan observed that the state no longer maintains that violent video games provoke actual violence. So she asked: What's the state's justification for this law?

Answer: The internal intrinsic harm to minors.

Justice Kagan: Would the iconic game called "Mortal Combat" be banned for sale to minors in California?

Answer: It would be a candidate.

Kagan: I'm sure half the law clerks who work for us spent considerable amounts of time in their adolescence playing it.

The thrust of the argument changed markedly when Paul Smith, representing the video game industry, came to the podium contending there's no way to justify banning certain video games for kids, but not movies or books.

Chief Justice Roberts: The difference is, the child is doing the maiming. And I suppose that might be understood to have a different impact on the child's moral development.

Justice Breyer: It is common sense to say that parents have the right to say whether their children buy a game in which a 13-year-old child imagines he's a torturer and imposes gratuitous, painful, excruciating violence on small children and women.

Lawyer Smith responded that 90 percent of all violent video games are sold to adults, and that the industry's voluntary rating system works.

Justice Breyer: It makes no sense to bar children from buying a picture of a naked woman, but to allow them to buy video games that portray gratuitous torture.

Answer: Graphic sex is not, and has never been, part of children's literature, movies or game playing. But violence is, whether in "Grimm's Fairy Tales" or the Bible.

Chief Justice Roberts: So your position is that the state legislature cannot pass a law that says you may not sell to a 10-year-old a video in which they set school girls on fire?

Answer: This court said just last year that it doesn't have a free-wheeling authority to grant new exceptions to the First Amendment.

Justice Alito: But we have here a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified.

Answer: We have a history in this country of new mediums coming along and people vastly over-reacting. Dime novels in the 1800s, comic books and movies in the 1950s, rock and roll lyrics - all of these have spawned similar attempts at censorship, said Smith, all of which failed. And the sky has not fallen.

Nina Totenberg, NPR News, Washington.

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