Intellectual Property Law

California Act Banning Violent Video Games for Minors is Struck Down

By IBLS Editor

On February 20, 2009, the U.S. Court of Appeals for the Ninth Circuit struck down as unconstitutional a California law that that banned the sale or rental of violent video games to minors.  This issue is controversial and will continue to be one of the most difficult battles for any state and the federal government. The video industry is a multibillion dollar industry. This profitable business will continue winning this battle because they have millions of dollars ready to fight for their market, and state officials and the federal government are too busy to dedicate time to think about the mental wellbeing of the youngest.  After all, no one under 18 has the right to vote; so, why to bother. Yet, the young are the future of any society.  We will wait and see how our future society will be after this unrestricted exposure to violence.

The video game industry''''s pre-existing voluntary rating system assigns each game one of several descriptions such as "Blood and Gore," "Cartoon Violence," "Fantasy Violence," "Intense Violence" and "Sexual Violence." In 2005, California sought to further regulate violent video games. The state enacted Civil Code sections 1746-1746.5, which made it illegal to sell or rent a video game to a minor when the video games was labeled as "Violent." In Video Software Dealers Association v. Schwarzenegger, No. 07-16620, the U.S. Court of Appeals for the Ninth Circuit struck down the statute after a strict scrutiny analysis. The court reasoned that the state did not show a compelling interest, as the evidence did not support the legislature"s purported interest in preventing psychological or neurological harm. The court pointed out that nearly all of the research was based on correlation, not evidence of causation, and most of the studies suffered from significant, admitted flaws in methodology as they related to the state''''s claimed interest. None of the research established or suggested a causal link between minors playing violent video games and actual psychological or neurological harm, the court observed. Thus, finding that there were less restrictive ways to protect children from "unquestionably violent" video games, the unanimous ruling by a three-judge panel affirmed a district court decision from San Jose that declared the law unconstitutional.

What was California''''s argument in defense of the law?
The State of California argued that violent content should be judged by the same obscenity standards as sexual content. Just as the sale of pornography to minors is prohibited, the government contended, the state should be allowed to establish a category of ultra-violent video games for consumption only by adults. California relied on Ginsberg v. New York, 390 U.S. 629 (1968), in which the United States Supreme Court allowed tighter restrictions on the sale of explicit materials to minors. Thus, California argued that even though there was a content restriction in the video statute, the "strict scrutiny" standard was inapplicable, and the Ginsberg "variable obscenity" standard should be applied.

How did the Ninth Circuit distinguish this case from Ginsberg?
The Court of Appeals noted Ginsberg involved only sexual content and not violence. Writing for a unanimous court, Judge Consuelo Callahan wrote "The Supreme Court has carefully limited obscenity to sexual content. We decline the state''''s invitation to apply the (same) rationale to materials depicting violence."

How did the Act define a violent video game?
The statute defined a "violent video game" as

(d)(1) ...a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:

(A) Comes within all of the following descriptions:

(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.

(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.

(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.

Full post as published by IBLS Internet Law Blog on December 06, 2009 (boomark / email).