Supreme Court strikes down California video game law

Banning the sale of violent games to minors is a violation of free speech, justices say in a victory for the entertainment industry.

Los Angeles Times
June 28, 2021
By David G. Savage, Washington Bureau

Reporting from Washington — The Supreme Court ended its term with a vigorous defense of free speech, striking down a California law that banned sales of violent video games to minors and effectively shielding the entertainment industry from any government effort to limit violent content.

"Like books, plays and movies, video games communicate ideas," said Justice Antonin Scalia in his majority opinion Monday. And he said there was "no tradition in this country of specially restricting children's access to depictions of violence. … Grimm's Fairy Tales, for example, are grim indeed."

The decision, coming on the term's last day, highlights a consistent theme of the high court under Chief Justice John G. Roberts Jr.: Freedom of speech is almost always a winner, even if the context is unusual.

The court will have another opportunity next term to test the reach of the Constitution's protection of speech. The justices said they would hear a case about the longstanding federal regulation of prime-time television broadcasts. The case concerns whether the Federal Communications Commission can punish broadcasters for showing nude scenes or airing four-letter words in prime time.

Over the last few years, the court's 1st Amendment cases have leaned heavily toward protecting speech. Last year, the court upset animal rights advocates when it struck down a law that forbade the sale of videos showing animals being tortured. And in a much disputed decision, the justices ruled that corporations and unions had a free-speech right to spend unlimited sums on political campaigns. Last week, the court struck down a Vermont law that barred the sale of private drug prescription records. The court said the data was "speech" and could be traded in the "marketplace of ideas."

Monday also saw another campaign funding law fall on free-speech grounds. A 5-4 decision rejected part of an Arizona law and said states could not give extra money to candidates who abided by spending limits because doing so impeded the speech of candidates who would prefer to spend more.

Though the outcome in 1st Amendment cases has been consistent, the voting has not followed the usual conservative-liberal pattern.

In Monday's decision in the case of Brown vs. Entertainment Merchants Assn., a 7-2 majority voted against California's law, but the justices were divided 5 to 4 over whether violence in the media could ever be regulated to protect children.

Scalia, one of the court's most conservative justices, wrote for the five-member majority that included three liberal justices, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, as well as Justice Anthony M. Kennedy, who is often the court's swing vote.

Scalia's opinion voiced strong support for free speech even when children are the audience. But his support came with an exception established in cases four decades ago: The law can protect children from sex and pornography in the media, he said, but it cannot protect them from violence. He cited court precedents that exempted from the 1st Amendment obscenity and pornography directed at children.

Justice Clarence Thomas, usually a conservative ally of Scalia, took the opposite view. Writing in dissent, he said California's law should be upheld because juveniles had no right to free speech. In the past, Thomas voted to strike down anti-pornography laws. Justice Stephen G. Breyer also said he would have upheld California's law.

Justice Samuel A. Alito, joined by Roberts, agreed California's law should be struck down, but only because it did not clearly spell out which games would violate the law.

The video game law passed the Legislature in 2005. It would have imposed a $1,000 fine on those who sold or rented a video game to someone under 18 that featured the "killing, maiming, dismembering or sexual assaulting" of a human image and "appeals to deviant or morbid interest." Before the law could take effect, the gaming industry sued, and judges put the law on hold.

Alito praised the state's lawmakers for a "well-intentioned" effort to deal with "a potentially serious social problem: the effect of exceptionally violent video games on impressionable minors."

He devoted most of his opinion to describing the "astounding" level of violence in the games. "Victims are dismembered, decapitated, disemboweled, set on fire and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters and pools," he wrote.

Officials of the video gaming industry said they were pleased and relieved by the decision. A ruling upholding California's law would almost certainly have triggered laws in other states as well as broader measures to restrict violence in the media.

Michael Gallagher, president and chief executive of the Entertainment Software Assn., said the court's decision was "an overwhelming endorsement of the 1st Amendment, the right to free expression and the freedom of speech. It's also a great victory for parents and rights of parents. They are to be in control, not the state, of the content that is used, consumed and enjoyed in the home."

"This is everything the industry could have asked for," said George Rose, chief public policy officer for Activision Blizzard Inc., a Santa Monica game publisher.

Steven R. Shapiro, legal director for the American Civil Liberties Union, said the decision "reaffirms the important principles that children as well as adults are protected by the 1st Amendment and that the government's views on good child rearing are not an excuse for censorship."

Advocates for control of the media were disappointed.

"This ruling replaces the authority of parents with the economic interests of the video game industry," said Tim Winter, president of the Parents Television Council in Los Angeles. "With no fear of any consequence for violating the video game industry's own age restriction guidelines, retailers can now openly, brazenly sell games with unspeakable violence and adult content even to the youngest of children."

James Steyer, chief executive of Common Sense Media, a San Francisco nonprofit group that lobbied on behalf of the California law, vowed to find other means to restrict the sale of violent games to children. "The fight is far from over," Steyer said. "An overwhelmingly high percentage of parents would support a bill that would prevent their kids from walking into a store and buying the most ultra-violent and sexually violent of video games."

The same two sides are likely to square off in the fall when the court takes up the challenge to the dispute over TV regulation.

By law, broadcasters who use the public airwaves may not air indecent words or scenes when children are likely to be watching. And the FCC in the last decade has cracked down on networks that crossed the line. It handed down a $1.2-million fine against ABC for a brief nude scene in its police drama "NYPD Blue" in 2003. And it said Fox could be fined for live broadcasts of awards shows where guests uttered expletives.

Lawyers for the broadcasters went to court, arguing the rules were unwarranted and out of date in an era when cable networks and the Internet enjoyed broad free-speech protection. Last year, they won a ruling from the U.S. court of appeals in New York, which struck down the FCC's policy on free-speech grounds. The justices said they would take up the case — FCC vs. Fox and ABC — when they returned in the fall.