Supreme Court Considers "California Office Of Censorship"

The U.S. Supreme Court today heard arguments from the state of California defending California’s move to outlaw the sale of violent video games to minors. The California law imposes a $1,000 fine on anyone who sells or rents a “violent video game” to a minor.

The law was challenged by an industry trade group, the Entertainment Merchants Association, who argued in the Court today that video games are protected by the First Amendment. Unlike obscenity, threats, child pornography, and other expressions that have a long history of being regulated, the challengers argued, exposure to violence has traditionally been controlled by parents instead of the government. They urged the Supreme Court to refuse to carve out another exception to the First Amendment for violence.

The lawyer for California tried his best to compare violent video games to obscenity, since the Supreme Court in 1968 said it was possible for something to be obscene for minors but not for adults. He also pointed out that violent video games—in which a child takes control and can be the person committing the virtual violence—are unlike any other medium.

Most of the Justices on the Court seemed unwilling to accept the argument that video games were different. Several Justices expressed concern that allowing regulation of video games would open the door to regulation of comic books, rap music, movies, the Internet, and other forms of entertainment that were condemned as harmful to minors when they were first developed.

Only Justice Samuel Alito seemed to have made up his mind to support the California law, at one point mockingly saying that “Justice Scalia would like to know … what James Madison would have thought about video games.” Alito also sarcastically asked the law’s challengers whether they thought there was no problem with minors having access to violent video games, since no teenagers had money to buy games, no children had televisions in their rooms where they could not be monitored, no teenagers were ever home without adult supervision, and it was impossible to bypass parental controls on game systems. Justice Alito was the sole dissenter in the U.S. v. Stevens decision earlier this year, where the Supreme Court said that dog fighting videos were protected by the First Amendment.

California’s harshest criticism came from Justice Antonin Scalia, who brought up the violence in Grimm’s Fairy Tales in the first minutes of the argument today. Scalia also expressed concern for the video game makers who would have to decide ahead of time whether their game would be violating the law. The California legislature used language from the Supreme Court’s obscenity cases in an attempt to avoid constitutional problems, but the challengers pointed out there was a long history of judgments on what is obscene and what is not, while no one can predict how the California law would be applied.

Justice Ruth Bader Ginsberg suggested that perhaps California could set up a state office to issue advisory opinions on whether a game would be allowed or not. Justice Scalia responded that they could call it the “California Office of Censorship.”

The case is Schwarzenegger v. Entertainment Merchants Association, and a decision will likely be handed down next spring.