RENEE MONTAGNE, host:
The Supreme Court today hears arguments in a case involving violent video games. It will test whether states may ban the sale or rental of violent video games to minors. California is seeking to plow new legal ground by equating these games with pornography. NPR legal affairs correspondent Nina Totenberg reports.
And a warning to listeners: This story contains graphic descriptions of violence.
NINA TOTENBERG: There's a certain irony in this case. California Governor Arnold Schwarzenegger, who made tens of millions of dollars portraying the Terminator and Conan the Barbarian, is asking the Supreme Court to uphold a ban on sales to minors of similar violent portrayals in video games. California is not alone. Such bans have been enacted in eight states, but so far they've all been struck down by the federal courts.
Now, normally the Supreme Court does not review cases where there's no conflict in the lower courts, so the fact that the justices have agreed to hear this case suggests at least some of them may be ready to reconsider the way the First Amendment applies to depictions of violence - at least when sold to children.
The California law applies only to store sales, which still outnumber online downloads. It makes it an offense punishable by $1,000 each time a violent video game is sold to a minor. The definition of a banned violent video game is one that includes killing, maiming, dismembering, or sexually assaulting an image of a human being in a way that is patently offensive, appeals to a deviant or morbid interest, and lacks serious literary, artistic, political, or scientific value.
As the video game industry points out, this is hardly the first time the government has tried to ban a new form of expression as corrupting to minors -from dime novels in the 1800s to comic books and movies in the mid-20th century.
Now the state of California contends that the Supreme Court should carve out a new exception to the First Amendment allowing a ban on selling violent video games to minors, just as the court has long allowed a ban on the sale of sexually explicit materials to minors.
California State Senator Leland Yee sponsored the legislation. He contends that video games are different from violent movies, TV shows, or books.
State Senator LELAND YEE (Democrat, California): The difference is that there is an interactive nature to these ultraviolent video games.
TOTENBERG: He cites social science studies that he contends show kids who play these games for hundreds, even thousands of hours, are desensitized to violence, that in fact the wiring in their young brains changes.
Mr. YEE: Because every time you push a button on that computer, you're lopping someone's head off, you're swinging an ax, you're pulling a trigger, using a sword or a knife and plunging into someone's heart.
Mr. MICHAEL GALLAGHER (President, Video Game Industry Association): I would describe that statement by Senator Yee as hyperbolic and devoid of fact.
TOTENBERG: Michael Gallagher is president of the Video Game Industry Association. He notes that every court that's looked at this question has found unpersuasive the studies seeking to correlate violent behavior and violent video games. In addition, he points to the industry's coordinated effort to make sure that violent games are not sold to minors.
The industry has set up a board to rate the games and penalize manufacturers and marketers who violate the code. And he points out that when the Federal Trade Commission sent testers out to evaluate compliance with entertainment rating systems overall, the video game industry came in first, with the highest compliance rate - 80 percent.
In addition, Gallagher observes, most kids can't afford games without a parent's help.
For those of you who have not played one of these games, let's pause here to describe them. The most violent, and the only one the state of California has suggested meets its legal standard for a ban so far, is called "Postal 2. "
(Soundbite of video game, "Postal 2")
Unidentified Man (Actor): (as character) Stop or I'll shoot.
(Soundbite of gunshot)
TOTENBERG: The game invites players to burn people alive with gasoline, decapitate them with shovels, slaughter female zombies, beat people to death while they beg for mercy, and worse, much worse. But the figures are computer generated and the blood and gore is nothing like the grisly stuff you see on TV every night.
At the same time, many violent video games are based on Greek mythology, or great literature like "The Iliad" and "The Odyssey," or epic World War II battles. Lawyer Paul Smith will represent the video game industry in the Supreme Court today.
Mr. PAUL SMITH (Attorney): If you look at "The Lord of the Rings" trilogy, something which I think is great and which people took their eight-year-olds to in vast numbers, there are huge battle scenes in which people's heads are chopped off and huge spears come crashing down on people and thousands and thousands of characters are killed. But everybody, because it's a fantasy in our culture, thinks that that is reasonably OK for most kids.
TOTENBERG: Smith maintains that banning violent material for kids is very different from banning sexual material. Sexual material, he says, is easily identifiable as outside the norm for children, whereas kids, from early childhood, are regularly exposed to violence - whether it's the "Hansel and Gretel" fairy tale in which the witch is burned to death in the oven or the Bible story of Cain killing Abel.
California Deputy Attorney General Zackery Morazzini replies that none of these would be covered by the California law if made into a game, because of the qualifiers in the law.
Mr. ZACKERY MORAZZINI (Deputy Attorney General, California): There's a huge difference. That material is A) not patently offensive; B) it doesn't appeal to a deviant interest, and C) it has serious literary, artistic and educational value. What constitutional values are served by an interpretation of the First Amendment that guarantees the video game industry the right to sell to a child extremely patently offensive violent material with no socially redeeming value?
TOTENBERG: The question remains, though, how to draw a line. After all, paintball games are far more realistic than video games, and nobody's trying to ban them, a contradiction that California's Morazzini appears to concede.
Mr. MORAZZINI: I agree - paintball is much more real, and it looks quite fun.
TOTENBERG: The video game industry also notes that most game consoles have a filtering mechanism that parents can set to prevent viewing violent games. But Deputy Attorney General Morazzini calls that laughable. Kids know how to bypass these controls, he says, and a simple ban on sales to minors poses no danger to society's right to free expression.
The video game industry, supported by every major media organization, from movie makers to news producers like NPR, disagrees. They say that if California can ban video games to minors, why not movies, or books, or violence in news? And once such bans are in place, producers will start censoring themselves for fear of a huge accumulated liability.
Listening to this debate today will be nine justices, ranging in age from 50 to 77, who may not ever have seen or played one of these games. Michael Gallagher, the industry association president, notes, however, that two-thirds of American homes have one or more video game consoles.
Mr. GALLAGHER: One-quarter of video game players are over the age of 50. The average age of a video game player's 35, so these games might be in their homes more than you think.
TOTENBERG:Nina Totenberg, NPR News, Washington.