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Courts Block Laws on Video Game Violence
As video games have surged in popularity in recent years, politicians around the country have tried to outlaw the sale of some violent games to children. So far all such efforts have failed.
Citing the Constitution’s protection of free speech, federal judges have rejected attempts to regulate video games in eight cities and states since 2001. The judge in a ninth place, Oklahoma, has temporarily blocked a law pending a final decision. No such laws have been upheld.
The latest state to have its tentative game regulations stymied by a judge’s interpretation of the First Amendment is California. This month a federal judge in San Jose, Ronald M. Whyte, declared unconstitutional a 2005 bill that would have made it a crime to sell or rent certain violent games to minors in that state.
Gov. Arnold Schwarzenegger of California has said he plans to appeal the ruling, but he is merely the latest in a line of politicians whose attempts to regulate video games have been frustrated by federal courts. “It’s more than a trend,” said Ronald Collins, a scholar at the First Amendment Center in Washington. “It seems the cases are moving uniformly down the same track, and that is that such laws are unconstitutional. Such uniformity in declaring a category of laws unconstitutional is very rare.”
New York will probably be the next state to try its chances in court. Gov. Eliot Spitzer has declared regulating children’s access to video games a priority. The State Assembly passed a game-regulation bill in June, and the Senate could take up the measure when the Legislature reconvenes as soon as next month.
The New York bill has been phrased in an attempt to pass constitutional muster, but it will almost surely be challenged by the same game-industry legal team that has successfully opposed game regulations around the country.
“Video games are a new medium, and while people are used to scary stuff in the movies, they aren’t as used to having scary stuff in interactive media, so there is political value in passing these laws even if they are ultimately rejected by the courts,” said Paul M. Smith, a partner in the Jenner & Block law firm, which represents the game industry. “I think it’s fair to say that a lot of people who passed these laws knew they were unconstitutional, and they did it anyway.”
Put simply, the United States Supreme Court has interpreted the Constitution as allowing states broad leeway in regulating minors’ access to sexually explicit material. That is why it is illegal around the country to sell pornography to children. Courts have not, however, said that states have a similar right to regulate media based on violence. Most of the city and state video game laws that have been struck down in recent years have tried to ban the sale or rental of certain violent games to minors. In many of those cases, states and cities have tried to translate the legal rules for pornography into a new system for regulating violent media.
“One of our major arguments was that when it comes to minors, violence should be treated similarly to sexually explicit material,” said Zackery P. Morazzini, the California deputy attorney general who argued the recent case for the state. “We allow states to protect children from sexually explicit material, so to us it is a logical extension to take that lesser obscenity standard and apply that in the context of violent media.”
The United States Supreme Court has not taken up the matter, but judges appear to have taken a dim view of that approach.
The opinion in the first major video game case was written in 2001 by Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit. In blocking an Indianapolis ordinance that would have regulated public game arcades, he wrote that exposure to imaginary violence — whether in “The Odyssey,” “War and Peace” or Ultimate Mortal Kombat 3 — can play an important role in the development of a child’s moral, social and political outlook.
“Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low,” he wrote. “It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault are aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.”
Judge Posner is not known as a First Amendment liberal. He wrote an opinion in 2003 that has been credited (or blamed) with beginning the erosion in the reporter’s privilege that many news organizations have cited in refusing to turn over reporters’ notes to government agencies.
The federal judiciary is hardly monolithic, but as courts around the country have considered video game regulations in places including St. Louis County, Mo.; Washington; Illinois; Michigan; Minnesota; Louisiana; and now California, they have generally followed Judge Posner’s basic arguments.
Many politicians, however, see regulating games not as a First Amendment matter but as a public health and safety issue.
“We prohibit children from smoking,” said Adam Keigwin, a spokesman for State Senator Leland Yee, Democrat of San Francisco, who helped draft the California law. “We regulate driver’s licenses. We prohibit alcohol. We prohibit lots of things from children, and we think it’s logical that kids should not be able to purchase these games on their own.”
Considering the track records of other states that have tried to defend their game restrictions, New York, with Governor Spitzer’s prodding, is taking a novel approach. Under the bill passed in June by the Assembly, it would become a felony in New York to sell or rent to a child any game that includes both pornographic images and egregious violence. Games that are violent but nonsexual would not be regulated.
“If the governor were to be honest, he would have to say that this provision does not change anything in terms of the current state of the law and does nothing to address video game violence,” said State Sen. Andrew J. Lanza, Republican of Staten Island, one of the bill’s sponsors and a proponent of a separate measure to make ratings on video games mandatory. “They want to be able to say they did something about video game violence, and I think it’s a little disinengenuous to say you did something that you didn’t do.”
Christine Anderson, a spokeswoman for Governor Spitzer, said he was confident that New York’s proposed bill could hold up in court.
“Protecting children from violent and indecent video games is one of the governor’s priorities,” she said. “He proposed legislation this session to do just that, which differs from other legislation enacted or proposed in other states. This legislation would give a new tool to district attorneys to use that expressly applies to video games.”
