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Violent Video Games and the First Amendment

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Play again, kids. Those video games, even the ones depicting extreme violence, are protected by the First Amendment, the Supreme Court ruled Monday, just like those old books and movies.

In one of the most closely-watched and eagerly-anticipated cases of the term, the Supreme Court waited until the last day of the session to shoot down a California law banning the sale of violent video games to minors, and extend First Amendment rights to a new modern medium.

As the law catches up with modern technology, in Brown v. Entertainment Merchants Association, Justice Antonin Scalia pointed to other forms of speech and expression accessed by minors that historically enjoy protection under the First Amendment, despite sometimes graphic depictions of violence.

Children's literature such as Grimm's Fairy Tales -- which Scalia wrote are "grim indeed" -- and some stories immortalized by Disney, including Snow White and Cinderella, have violent themes and depictions. Some classic staples of high school literature curricula such as The Odyssey of Homer, Dante's Inferno and Golding's Lord of the Flies, depict the same graphic violence California sought to ban and punish when it pops up in the form of video games.

"Like the protected books, plays, and movies that preceded them, video games communicate ideas -- and even social messages -- through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection," Scalia wrote.

The content-based restrictions posed by California's law failed on strict scrutiny grounds because the state could not prove that there was a compelling government interest justifying the ban of the sale of violent video games to minors; that these games harm young minds; and that playing violent video games caused minors to engage in violent conduct.

California's law tried to equate violent video games to the concept of "variable obscenity," which legally punishes sale or distribution of sexual content to minors. This "shoehorn" attempt to create a new category of illegal speech -- violent video games in the hands of minors -- was "unprecedented and mistaken," Scalia wrote.

Government must meet an extremely high burden under the First Amendment to create a category of speech that can be punished, regulated or censored, and prove a compelling governmental interest to justify the invasion of these rights. Over time, the Court has ruled obscenity, incitement and fighting words can be legally suppressed. But the government interest in suppressing those categories is closely linked to a precise, provable harm, which is also often tied to the time, place and manner of the speech.

Last term, the Court refused to create a new category of punishable speech in United States v. Stevens, which rejected a law criminalizing the sale and distribution of videos depicting animal violence. Scalia applied Stevens as controlling precedent in refusing to equate violent video games with other forms of speech that can be censored.

California's law also singled out video game manufacturers who create violent content while failing to take into account that the minors could encounter the same potentially harmful content through cartoons, movies or other media. Conversely, the law could punish too much content protected under the First Amendment.

At the oral arguments in November, Scalia aggressively questioned California's lawyers about the law and its censoring effect. However, Scalia did not ignore governmental concerns or the concerns of parents to protect their children from potentially harmful content.

"Even where the protection of children is the object, the constitutional limits on government action apply," Scalia wrote.

The video game industry, which challenged the law on First Amendment grounds, also maintains a voluntary ratings system for its games, which can assist parents. This system removes the government from the equation and lets the video game manufacturers create and gamers of all ages play without government oversight, and that is a win for the First Amendment.

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