Recently California governor Arnold Schwarzenegger signed a law that made several requirements on the sale of video games deemed to be “violent.”

1. Prohibit the sale or rental of violent games to anyone under 18.
2. Created labeling requirements for video game manufacturers.
3. Retailers who violated the act would be fined up to $1,000 for each violation.

The Law was challenged and has worked it’s way up to the SCOTUS. While it seems like an open and shut case, with all the lower courts finding the law to be an abridgment of free speech,
Julie Hilden has written a piece at Find Law that suggests reasons why the Supreme Court may uphold the ban.

The Clues that Suggest that the Court May Well Uphold the “Violent” Video Game Law

Granted, in the Supreme Court’s recent, 8-1 opinion striking down the federal anti-animal-cruelty depiction statute, the Court made very clear that it would not exercise a “freewheeling authority” to create new categories of speech to be carved out, willy-nilly, from the First Amendment’s protections. (I wrote about that opinion at length in an earlier column.) And at first glance, this language might seem promising for those who believe, as I do, that the California law should be struck down.

However, the Court also expressly declined, in that same opinion, to foreclose the possibility that it would create some new, categorical First Amendment exceptions in the future – it simply committed itself not to do so in the freewheeling way it felt that the government had proposed, which the Court described as a kind of cost-benefit analysis.

And more generally, there is much evidence that the Court simply does not take minors’ First Amendment rights seriously. For instance, it has long allowed a watered-down “obscene as to minors” test to be used when it comes to sexually-explicit material. And the California “violent” video game law plainly borrows from that test.

Essentially her argument is that since this law is aimed at minors and not adults it stands a good chance of being upheld. Minors may hold a lot of the same rights as adults but there are many exceptions to those rules as minors are considered incapable of making certain decisions for themselves. This is why a minor can not sign a binding contract, purchase alcohol, tobacco, pornography, or consent to sexual relations (statutory rape). Points 1 and 3 above are no different than rules for the purchase of tobacco and pornography. Point 2 is essentially the ESRB which the Industry already uses. So I can see how she might think the law could be upheld.

That’s a scary prospect, cause it won’t stop there. Once violence in games is okay to ban, they will move on movies, music, comics/manga. Really no form of entertainment will be safe.

Which way do you think SCOTUS will rule? We would love to hear your opinions.

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