On The Front Lines
U.S. Supreme Court Declares California Law Restricting Sales of Violent Video Games to Minors an Unconstitutional Violation of Free Speech
WASHINGTON, DC — In a 7-2 ruling in Schwarzenegger v. Entertainment Merchants Association, the U.S. Supreme Court declared unconstitutional a California statute that restricts the sale of video games labeled as "violent" to minors. "Video games qualify for First Amendment protection," said Justice Antonin Scalia, writing for the majority. "Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And 'the basic principles of freedom of speech . . . do not vary' with a new and different communication medium." The Rutherford Institute filed a "friend of the court" brief with the U.S. Supreme Court in the case, arguing that states must not usurp the duties and obligations of parents.
The Supreme Court's opinion and The Rutherford Institute's amicus brief in Schwarzenegger v. Entertainment Merchants Association are available here and here.
"When it comes to parenting, government agencies and regulations are simply no substitute for the watchful eyes of moms and dads. To do otherwise would create a chilling effect on all forms of media," stated John W. Whitehead, president of The Rutherford Institute. "We are also glad to see that the First Amendment's prohibition on censorship is still alive."
The California law at issue in Schwarzenegger v. Entertainment Merchants Association provides that a person may not sell or rent a video game labeled as "violent" to a person under 18 years of age. A "[v]iolent video game" is defined as one in which "the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being" or "[e]nables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim." The law was challenged as violative of the First Amendment by a video software industry group.
After a federal district court barred enforcement of the law, California appealed the decision. Upholding the lower court's decision, the Ninth Circuit Court of Appeals ruled that studies submitted by the State did not support the legislature's purported interest in preventing psychological or neurological harm. The appeals court also rejected California's request that the law be upheld using the same analysis applied to upholding restrictions on minors' access to pornography.
In its brief to the U.S. Supreme Court, Institute attorneys pointed out that the nation is on a dangerous trend toward a "nanny state" in which parents depend upon the government to control and guide children and abdicate their fundamental parental responsibilities. The amicus brief also warned that if the State's arguments in support of the law are adopted, the decision would have serious consequences for other visual media and result in self-censorship by artists in movies and television. The Institute urged the Court to allow the video game industry to enhance its current rating system for video games, thereby empowering parents to make intelligent choices for their children.
Justices Breyer and Thomas were the lone dissenters in the High Court's 7-2 ruling, declaring that "this case is ultimately less about censorship than it is about education. Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to making our system of government work."
