© Stainless GamesThe Death Race 2000-inspired car racing game, Carmageddon puts players behind the wheel of a vehicle bristling with weaponry where the aim is to run-down as many pedestrians as possible.
The Supreme Court on Monday ended its term by striking as unconstitutional California's attempt to ban the sale of violent video games to minors.
By a 7-2 vote, the court upheld a lower court's decision that California's attempt to impose a $1,000 fine on those who sell or rent violent video games to minors violated free speech rights. But there was more disagreement on the court than that tally would indicate.
Only four other justices joined in full Justice Antonin Scalia's soaring majority opinion that the First Amendment does not allow what he called "the latest in a long series of failed attempts to censor violent entertainment for minors."
"No doubt a state possesses legitimate power to protect children from harm," Scalia wrote in his 18-page opinion
. "But that does not include a free-floating power to restrict the ideas to which children may be exposed."
He was joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. agreed with the outcome of the case, with Alito writing that "California's law is not framed with the precision that the Constitution demands." But he said he would not "squelch legislative efforts" to come up with a law that might be constitutional.
Justices Clarence Thomas and Stephen G. Breyer dissented for separate reasons.
It was the court's first examination of a phenomenon that has reached into two-thirds of American homes and spawned a multibillion-dollar industry. Although social scientists are divided about the long-term impact of violent games on players, lawmakers have catered to parents worried about a technology their children understand better than they do, and some states want the option to ban sales in the future.
Several states have attempted, as California did, to forbid the sale or rental of the violent games, and none has been allowed by federal courts to go into effect.
California's law passed in 2005 and was signed by Gov. Arnold Schwarzenegger (R). The fact that the plaintiff had starred in Conan the Barbarian
and The Terminator
was noted in signs carried outside by gamer demonstrators during oral arguments in November.
The law prohibited the sale or rental to anyone younger than 18 of a video game that allows a player the option of "killing, maiming, dismembering or sexually assaulting" a human image. The definition of a violent video game was one that as a whole lacks "serious literary, artistic, political or scientific value'' and appeals to minors' "deviant or morbid interests.''
"This is a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere," said Michael D. Gallagher, president and chief executive of the ESA, which represents the U.S. computer and video game industry. "The Court declared forcefully that content-based restrictions on games are unconstitutional; and that parents, not government bureaucrats, have the right to decide what is appropriate for their children."
The court has not declared that the First Amendment does not protect a whole field of speech since 1968, when in Ginsberg v. New York
it allowed the government to keep from minors sexual material that had not been judged obscene.
Scalia noted that the court has said some forms of expression lack First Amendment protection - obscenity, incitement, so-called "fighting words." But last year, in United States v. Stevens
, the court struck down a federal law making it a crime to sell videos of animal cruelty by an 8 to 1 vote, with Alito dissenting.
Scalia said the holding in that case was true here.
"Without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the judgment of the American people, embodied in the First Amendment, that the benefits of its restrictions on the government outweigh the costs."
Scalia said violence has never been considered in the same league as obscenity, and noted that everything from Grimm's Fairy Tales
to high school reading lists are filled with violent images.
"Hansel and Gretel (children!) kill their captor by baking her in an oven," Scalia wrote.
Legislatures have tried to censor movies, dime-store novels and comic books at various points in history, he noted.
But Breyer said the disturbing images in video games are at least as damaging to children as the pictures of nudity the court has said is constitutional to prohibit.
"What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?" Breyer wrote.
Alito described similar instances of "astounding" violence in the video games, but Scalia said they were besides the point: that government may not forbid "the ideas expressed by speech."
Thomas said he would not find the California law unconstitutional at this point because he said the founders did not intend children to have the right of freedom of speech or to "access speech without going through the minors' parents or guardians."