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Will the Supreme Court Cast The Terminator as California’s Super Nanny?

Pending before the United States Supreme Court is a case that pits free speech against the emotional well being of California’s children. Standing in one corner defending their right to distribute violent video games is the $18 billion per year video game industry. Standing in the opposite corner are Arnold Schwarzenegger and the California Legislature fighting for the right to restrict the sale of certain video games to minors.

The case stems from a measure signed into law by Governor Schwarzenegger (Civil Code §§ 1746-1746.5) that subjects retailers to fines of $1,000 for renting or selling video games labeled as violent to anyone under 18 years old. The law defines a violent video game as one that provides the player the option of “killing, maiming, dismembering, or sexually assaulting an image of a human being.” It also restricts games that enable the “player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner that is especially heinous, cruel, or depraved in that it involves torture or serious physical injury to the victim.”

In its briefs to the Court, California branded the game “Postal 2” as an example of the worst of the worst. In an effort to deflect bad publicity, the manufacturer of “Postal 2” defiantly points out on its web site that “nowhere in “Postal 2” are there any characters that represent anything but human adults and animals, there are NO YOUTHS or CHILDREN in the game.” Well, with that explanation I feel better – it’s only Grandma and her golden retriever service dog that gets maimed and killed.

Rest easy parents. If you want your children to have more exposure to torture in their lives, the law does not prevent you from purchasing violent video games for your teen, pre-teen or toddler.

In recent arguments before the Supreme Court, California argued that the state is concerned with a minor’s access to the “deviant level of violence” that exists in certain video games. Justice Scalia asked how a manufacturer would know if a violent game is covered by the law and suggested that perhaps California should consider creating an Office of Censorship. He asked, “what’s next after violence? Drinking? Smoking?”

Other justices asked why just video games? Why not movies? Rap music? What about the effect of violence in a Bugs Bunny episode?

Not surprisingly, the video game industry wrapped itself in the cloak of the First Amendment. It argued that the law restricts the distribution of expressive works based on their content and that California is asking the Court to create a violence exception to the First Amendment for minors.

The Court’s questions to the industry’s lawyer focused on the distinction between a child passively watching a movie versus actively maiming and killing a person in a video game. The First Amendment protection given to a child who pens a story about a murder was not raised so we will have to wait for the decision before we know if there is a difference between killing with a keyboard rather than a joystick.

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Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.  

  • First Amendment
  • Feb 25, 2011

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