A California law banning the sale or rental of violent video games to children has been rejected by the U.S. Supreme Court.
The ruling upholds decisions by lower courts that determined the ban violates the U.S. First Amendment right to freedom of expression and is therefore unconstitutional. In doing so, it confirms that video games have the same protection under the First Amendment as books and movies.
The California law, adopted in 2005, affects sales and rentals to children and teens under the age of 18. It allows for fines of up to $1,000 for violations, but the law has never come into effect due to court challenges by the video game industry. Similar laws have been struck down by courts in six other states, including Michigan and Illinois.
In Canada, most provinces already have laws restricting the sale of mature-rated titles to those under the age of 17, said Julien Lavoie, spokesman for the Entertainment Software Association of Canada.
"There's sanctions for those who do sell the titles to minors, and a high enforcement rate," Lavoie told CBC News on Monday.
In provinces such as Ontario and British Columbia, video games have been included in legislation regulating motion pictures that prohibit titles rated "mature" for sale, rental or exhibition to a person under the age of 17.
But what made the California law different from existing regulations in Canada restricting access to the games was its definition of content to be restricted, said Jon Festinger, a Vancouver media and entertainment lawyer who has written extensively on video game law.
The law covered games "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 a manner that "[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors," that is "patently offensive to prevailing standards in the community as to what is suitable for minors," and that "causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors."
U.S. courts have consistently ruled such a move to regulate content is an infringement on freedom of speech, and any attempt by a Canadian or provincial government to try to do the same as California could face a similar constitutional challenge based on the Charter right to freedom of expression, Festinger said.
"The mechanics are different, but similar constitutional questions would be raised," he told CBC News on Monday. "Without the fight, you don't know how it would play out in court."
The Supreme Court challenge was led by the Entertainment Merchants Association, a group representing DVD and video game retailers, distributors and suppliers, along with other video game industry groups.
According to the Entertainment Software Association, which represents the U.S. computer and video game industry, 72 per cent of American households play computer and video games and consumers spent $25.1 billion on video games, hardware and accessories in 2010.
The State of California, in defence of its law, told the court that it is in the interest of the government to help parents protect the well-being of their children at times when the parents aren't present.
It told the court that the interactive nature of video games, which allows a player to act out violence rather than just watching it, makes the violence "especially harmful to minors."
The state also argued that the rights of minors should not be the same as those of adults and the law should be flexible in that regard.
The court acknowledged that the state has a legitimate right to protect children from harm.
"But that does not include a free-floating power to restrict the ideas to which children may be exposed," it said in an opinion delivered by Justice Antonin Scalia.
Video games qualify for protection under the First Amendment just like books, plays and movies, the ruling said, and California failed to meet the standard for overriding that protection by showing it was justified by a "compelling government interest" and narrowly designed to target that interest.
The video game industry’s voluntary rating system already largely meets the needs of parents who wish to restrict their children from buying violent video games, the court said.
It also noted that not all parents want to stop their children from buying such games.
The court said the U.S. has no tradition of specially restricting children’s access to depictions of violence.
"California’s claim that 'interactive' video games present special problems, in that the player participates in the violent action on screen and determines its outcome, is unpersuasive," the ruling added.
Two of the judges dissented.
Justice Clarence Thomas wrote that freedom of speech, "as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians."
Video game ratings
Video games are rated in the U.S. and Canada by the Entertainment Software Rating Board, a self-regulatory body created by the video game development industry to give parents and retailers guidelines on what is and isn't appropriate for children.
The ESRB ratings include:
- EC (Early Childhood) – games with content that may be suitable for children ages 3 and older.
- E (Everyone) – content that may be suitable for ages 6 and older and, according to the ESRB, may contain "minimal cartoon, fantasy or mild violence and/or infrequent use of mild language."
- E10+ (Everyone 10+) – content that may be suitable for ages 10 and older and may contain "more cartoon, fantasy or mild violence, mild language and/or minimal suggestive themes."
- T (Teen) – content that may be suitable for ages 13 and older and may contain "violence, suggestive themes, crude humour, minimal blood, simulated gambling, and/or infrequent use of strong language."
- M (Mature) – "may contain intense violence, blood and gore, sexual content and/or strong language."
- AO (Adults Only) – Titles in this category may include "prolonged scenes of intense violence and/or graphic sexual content and nudity."
Although the system is voluntary, most game publishers agree to have their titles rated at their own expense because most large-scale retailers refuse to carry unrated titles.
"From the perspective of developers and publishers, they have an incentive to comply," said Jim Alam, a Vancouver lawyer who represents a number of video game developers.
Justice Stephen Breyer wrote that in his opinion, the First Amendment does not disable government from helping parents choose not to let their children buy violent video games, "which they more than reasonably fear pose only the risk of harm to those children."
The Entertainment Merchants Association said it welcomed the ruling.
"There now can be no argument whether video games are entitled to the same protection as books, movies, music, and other expressive entertainment," said Bo Anderson, president and CEO of the association, in a statement Monday.
But he acknowledged that the ruling "does not obviate the concern that parents may have about the appropriateness of some video games for their children."
He added that retailers understand their responsibility to help parents make informed decisions about games for their children and to ensure that children don't purchase mature-rated games without their parents’ permission.
He noted that June designated each month for an industry campaign to promote awareness and enforcement of video game ratings.
Despite the two dissenting views among the Supreme Court justices, the Entertainment Software Association called the ruling a "historic and complete win for the First Amendment and creative freedom of artists and stories everywhere."
Michael D. Gallagher, president and CEO of the association, said in a statement that the ruling affirms that "parents, not government bureaucrats, have the right to decide what is appropriate for their children."
The video game industry had alleged during the court proceedings that California was asking for an exception to the First Amendment that could be extended to affect books and movies, and that there is no scientific evidence that children are affected more by violence in video games than other media.