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Violent Video Games at the Supreme Court

California's law banning violent video game sales or rentals to minors would have been one of the first of its kind in the nation if it had gone into effect in 2006 as the state had planned. Instead, it was blocked by a federal judge and began weaving its way through the court system before the Supreme Court agreed Monday to consider whether the law is constitutional.

In October 2005, Gov. Arnold Schwarzenegger signed into a law a bill stating that "[a] person may not sell or rent a video game that has been labeled as a violent video game to a minor." It considers several factors in determining whether a game is "violent."

California argued the law was constitutional under Ginsberg v. New York, a 1968 decision that allows states to pass laws that restrict access by minors to obscene materials if the legislature has judged such materials to be harmful to minors. The standard had never been applied to violent materials rather than obscene materials.

In a February 2009 opinion in Video Software Dealers Association v. Schwarzenegger, the 9th Circuit refused to apply that standard. "We do not read Ginsberg as reaching beyond the context of restrictions on sexually-explicit materials or as creating an entirely new category of expression--speech as to minors--excepted from First Amendment protections," Judge Consuelo Callahan wrote for the 9th Circuit panel. "As the Act is a content-based regulation, it is subject to strict scrutiny and is presumptively invalid."

Under strict scrutiny, the appeals court found that California legislature hadn't proved that violent games would harm minors, and that the law could have been less restrictive. It upheld summary judgment for the plaintiffs challenging the law.

The Supreme Court is likely to apply to the case its decision in U.S. v. Stevens, which it issued last week. In that case, the high court struck down a federal law that banned depictions of animal cruelty in videos and other commercial media.

Writing for the majority in Stevens, Chief Justice John Roberts concluded, "The Government proposes that a claim of categorical exclusion should be considered under a simple balancing test: 'Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.'"

Read the full story from the Contra Costa Times:

Read the 9th Circuit Ruling in Video Software Dealers Association v. Schwarzenegger:

Read SCOTUSblog's write-up of the Supreme Court's ruling in U.S. v. Stevens:

Associate Editor

Melissa Maleske

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