Video Game Violence and the First Amendment

Tomorrow at the Supreme Court, the Justices will hear arguments over whether the state can limit minors’ access to extreme depictions of violence.

California law bans the sale or rental of violent video games to minors. In adopting the law, the California legislature considered scientific evidence showing a correlation between playing violent video games and an increase in aggressive thoughts and behavior, antisocial behavior, and desensitization to violence in both minors and adults. The law was designed to give parents greater control over whether their children have access to the most violent video games.

Although the law was enacted several years ago, courts have kept it from going into effect on the basis that it violates the First Amendment.

The law parallels a New York law restricting the sale of non-obscene sexual material to minors that the Court upheld in the 1960s. Specifically, it covers those violent video games where:

  • a reasonable person, considering the game as a whole, would find that it appeals to a deviant or morbid interest of minors;
  • it is patently offensive to prevailing standards in the community as to what is suitable for minors; and
  • it causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

California argues that, for the purposes of the First Amendment, the Supreme Court should apply the same relaxed standard to violent material as it does to sexual material:

[I]t should make no constitutional difference whether the material depicts sex or violence. ... [T]he Act must be upheld so long as it was not irrational for the California legislature to determine that exposure to the material regulated by the statute is harmful to minors.

This would mark a significant change in First Amendment law.

Just the fact that the Court agreed to hear this case is interesting. The Court often takes a case where there is disagreement among circuit courts on how to interpret a particular law. But here, there is no such disagreement: Lower courts have uniformly struck down laws such as this as violating the First Amendment. The fact that the Supreme Court decided to hear the case anyway may signal that the Justices are ready to make the change that California is asking for.

PFAW