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Supremes Rule Against Ban on Sale of Violent Video Games to Minors

July 27, 2011

by John Eggerton

TV, film producers and distributors had been concerned about possible repercussions on them if ban were reinstated

The Supreme Court has upheld a Ninth Circuit Appeals Court ruling that California's ban on violent video games was an unconstitutional content-based restriction on speech.

The Ninth Circuit had held that the state of California "has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State's expressed interests."

In a 7-2 deision, the Supreme Court agreed the ban was a violation of the First Amendment.

"The Act does not comport with the First Amendment. Video games qualify for First Amendment protection. Like pro-tected books, plays, and movies, they communicate ideas through fa-miliar literary devices and features distinctive to the medium. And 'the basic principles of freedom of speech . . . do not vary' with a new and different communication medium, wrote Justice Antonin Scalia in the opinion, which was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

In what would be a blow to effort to crack down on violence in other media,the court found that the ban "abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harm-less pastime."

Justice Samuel Alito and Chief Justice John Roberts concurred in the opinion, but left room for states to come up with media violence restrictions that would pass muster. "I would hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires," wrote Alito in an opinion joined by Roberts. " I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Fed-eral Government, we can consider the constitutionality ofthose laws when cases challenging them are presented to us.

Justices Clarence Thomas and Stephen Breyer dissented.

Cable operators, in arguing that the Supreme Court should not reinstate the ban, were concerned that if California won and the court ruled that content-based violence restrictions can be justified for the sake of the children, as it were, much of its own industry's established First Amendment protections would be lost. "Courts would have little ability to undertake the critical task of distinguishing regulation of truly harmful speech from regulation of merely objectionable speech," the National Cable & Telecommunications Association (NCTA) told the court in arguing against the ban.

NCTA didn't see the ban stopping at video games: "Petitioners invoke concerns about ‘violent scenes in television and movies' as well as ‘violent music lyrics.' If [they] were to have their way, therefore, it appears that States would be free to regulate any form of speech they deemed potentially harmful to minors' emotional development."

Studios were also concerned that TV fare could be a target of a government violence ban. If the Court ruled in favor of the ban, "the government would presumably be empowered to proscribe the distribution of depictions of violence in motion pictures, television and books," said the Motion Picture Association of America and various unions and guilds in a joint brief on the case.

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