Game Over: Supreme Court to Review California’s Violent Video Game Restrictions - Fordham Intellectual Property, Media & Entertainment Law Journal
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Game Over: Supreme Court to Review California’s Violent Video Game Restrictions

Game Over: Supreme Court to Review California’s Violent Video Game Restrictions

Following the attempts of a number of state legislatures, including those of Illinois, Michigan, Louisiana and California, to restrict minors’ rights to purchase violent video games, the Supreme Court will determine whether video games are granted the same free speech protection as other forms of expression.  On November 2nd, the Court began its review of the California Assembly Bill 1179, which Governor Arnold Schwarzenegger signed into law in 2005.[1] The law imposes a $1,000 fine on anyone who sells or rents a violent video game to a minor[2] and requires that each violent video game imported to or distributed in the state must “be labeled with a solid white ‘18’ outlined in black.”[3]

In February 2009, the Ninth Circuit affirmed the district court’s decision to grant the Video Software Dealers Association’s motion for summary judgment to permanently enjoin enforcement of the California Assembly Bill.[4] Though both courts ruled that the Bill would violate the First Amendment, the opinions of the district court and the Ninth Circuit Court of Appeals reflect varying perspectives regarding the inherent value of video games.  The district court ruled that despite the fact that video games are “mere entertainment” and are “base and malignant,” they are still protected by the First Amendment.[5] The Ninth Circuit, on the other hand, recognized that some games, though violent, may “have extensive plot lines that involve or parallel historical events, mirror common fictional plots, or place the player in a position to evaluate and make moral choices.”[6]

The Ninth Circuit’s recognition that these games feature more than mindless violence highlights a fundamental flaw in the Bill’s parameters.  One of the Bill’s definitions of a “violent video game” requires that “the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being” which “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”[7] This definition raises a crucial question: Can a legislature objectively determine whether a game lacks artistic or literary value?  Is it not possible that this “range of options” may be the very source of a game’s literary or artistic value? There is no doubt that some children play games with this “range of options” specifically for the fun of the kill.  For another child, however, a game’s violent activities may help to further develop his or her moral sensitivity, to learn to recognize common narrative or literary elements, or to more fully understand the game’s historical content.

The Supreme Court may also have difficulty allowing the Bill because the California legislature has not proven that it is necessary.  Since the Bill is a content-based restriction, it must be “narrowly tailored to promote a compelling Government interest.”[8] While the California legislature stated that the concern of the Bill is the “physical and psychological well-being of children,”[9] the Supreme Court should recognize that the legislature has failed to conclusively show that violent games really do harm children.  In 2009, the Ninth Circuit soundly rejected the use of Craig Anderson’s 2004 study An Update on the Effect of Playing Violent Video Games as the primary support for the Bill,[10] pointing out that Anderson himself had acknowledged that there was not a large enough body of samples to conduct a fully detailed study.[11]

In Anderson’s newest study, published in the Psychological Bulletin, Anderson claims “with utmost confidence” that violent video game exposure increases aggressive thoughts and behavior.[12] Psychologists, however, are certainly not convinced—the Psychological Bulletin itself included an accompanying commentary that maintained that Anderson found only a weak connection between violent video gaming and violent thoughts and deeds, and that Anderson suffered from a selection bias.[13] Some studies have also noted that as violent games have become more popular, youth violence has decreased, while others postulate that violent games may decrease real violence because games function as an outlet for children.[14] It seems hard to believe that in the face of this academic incongruity the Court will find a “compelling interest” for allowing California’s content-based restriction of expression.


[1] High Court Accepts Case Over Violent Video Games, CNN.com, April 26, 2010, http://articles.cnn.com/2010-04-26/justice/scotus.violent.video.games_1_violent-video-games-ratings-system-gaming-industry?_s=PM:CRIME.

[2] Cal. Civ. Code § 1746.3 (West 2010).

[3] Id. § 1746.2.

[4] See id.

[5] See Video Software Dealers Ass’n v. Schwarzenegger, No. C-05-04188 RMW, 2007 WL 2261546, at *4 (N.D. Cal. Aug. 6, 2007).

[6] See Video Software Dealers Ass’n, v. Schwarzenegger, 556 F.3d 950, 955 (9th Cir. 2009).

[7] Cal. Civ. Code § 1746.

[8] Video Software Dealers Ass’n, 556 F.3d at 958 (quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000)).

[9] See Video Software Dealers Ass’n, 556 F.3d at 960.

[10] See id. at 963.

[11] See id.

[12] See Elizabeth Armstrong Moore, Metastudy: Violent Video Game Raises Aggression, Cnet.com, March 2, 2010, http://news.cnet.com/8301-27083_3-10462519-247.html.

[13] Jennifer LaRue Huget, Study Links Violent Games to Violent Thought, Action, Wash. Post , March 1, 2010, http://voices.washingtonpost.com/checkup/2010/03/study_ shows_violent_video_game.html.

[14] Mike Masnick, Long Time Video Game Critic Claims Conclusive Evidence that Violent Video Games Cause Aggression; Conclusive Except that it Isn’t, techdirt.com, March 2, 2010, http://www.techdirt.com/articles/20100301/1357558345.shtml.

Joey Weiner