What’s Next for Violent Video Games?

NEW YORK (MainStreet) – The Supreme Court ruled decisively Monday that a California law prohibiting the sale of violent video games to minors was unconstitutional, ending a fight that spanned the better part of a decade.

What it did not end, however, was the larger debate over violent video games. Despite the 7-2 ruling by the nation’s highest court that the sale ban violated the First Amendment, advocates don’t appear dissuaded in their efforts to limit kids' access to virtual violence.

“Today’s decision is a disappointing one for parents, educators, and all who care about kids,” said James Steyer, CEO of advocacy group Common Sense Media, which supported the law. “But the fight is far from over.”

While the court’s majority opinion ruled that video games qualified for First Amendment protection and that California failed to prove that the law was justified by a compelling government interest, advocates can take at least some solace in a concurring opinion penned by Justice Samuel Alito and joined by Chief Justice John Roberts. While the two agree that the law as written was overly broad, they nevertheless disagreed with the majority on the contention that violent video games do not represent a special class of speech distinct from historically protected speech like books and theater.

“There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show,” wrote Alito, making special mention of the interactive experience of “controlling the actions of a character who guns down scores of innocent victims.”

While few if any video games on the market actually encourage the killing of innocents, Alito’s concurring opinion nevertheless provides a glimmer of hope that a more narrowly drawn law could get a more sympathetic ear in the court.

“The concurring opinion says they can imagine a law that does pass constitutional muster,” says Ken Basin, an entertainment lawyer for Greenberg Glusker Fields Claman & Machtinger LLP, and the editor of the firm’s LawLawLandBlog. He notes, however, that under the court’s current composition such a measure would still lose 5-4.


Still, such judicial arithmetic is unlikely to dissuade those advocating for tougher laws.

“You have to look and see if you can write them more narrowly, and there’s a possibility of a more narrowly drawn law [in the future],” Steyer told MainStreet. “It’s the definition of violence. That’s the issue.”

What such a law would look like is hard to imagine though, and Steyer says that formulating a sufficiently-narrow definition of violence was the main sticking point in the bill that went before the court. Meanwhile, it’s unclear what sort of political momentum there will be in the wake of the judicial defeat.

The video game industry’s own rating agency, the Entertainment Software Rating Board, is already considered to be a strong means of preventing minors' access to violent games, and even Steyer said that video game retailers were doing a better job of enforcing voluntary restrictions against sales to minors – an improvement he credited to the years-long fight over the California law.

Despite these roadblocks, don’t be surprised to see another such law rise up in another state in the near future.

“We’ve seen it happening since the 1970s with abortion laws,” says Basin. “The law is ever in flux, and no advocate has ever let themselves be dissuaded by a court decision.”

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