Highest court in the land sided with the gaming industry in the case of Brown v. Entertainment Merchants Association, judging that a California law preventing retailers from selling violent games to children was unconstitutional.
"The most basic principle–that government lacks the power to restrict expression because of its message, ideas, subject matter, or content–is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test," the Court judged.
Justice Scalia went on to state that the US has no tradition of protecting children from violent media, calling California’s claim that the interactivity of games makes them a special case "unpersuasive."
The decision was 7-2, with Justices Clarence Thomas and Stephen Breyer posting different opinions.
Justice Thomas said, "The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood ‘the freedom of speech’ to include a right to speak to minors without going through the minors’ parents."
As for Justice Breyer’s dissent, he opposed the notion expressed by Justice Alito that the law was unconstitutionally vague compared to existing sex-related obscenity laws that have been ruled constitutional.
"Why are the words ‘kill,’ ‘maim,’ and ‘dismember’ any more difficult to understand than the word ‘nudity,’" Breyer asked.
Breyer also agreed with the state of California’s argument that the interactivity of games made them different from books, movies, or other media.
The bill sought to ban the sale or rental of "violent video games" to children. A "violent" game was defined as a "game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being."
Under the law, retailers that sold such games would be subject to a $1,000 fine. The bill would also have required "violent" video games to bear a two-inch-by-two-inch sticker with a "solid white ’18’ outlined in black" on their front covers.
Shortly after California Assembly Bill 1179 was signed into law by Governor Arnold Schwarzenegger in 2005, it was challenged in court before it could take effect. In 2007, the circuit court judge who struck down the law as unconstitutional admitted he was "sympathetic to what the legislature sought to do." Last year, an appellate court judge backed up the original ruling.
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