Surprised none of you nerds are following this:
When California defends its ban on selling ultra-violent video games to minors before the Supreme Court today, it will ask the justices to do something no U.S. court has ever done: exempt a type of violent content from the First Amendment's protection of free expression.
The law, blocked by court orders since Gov. Arnold Schwarzenegger signed it in 2005, would prohibit the sale to anyone younger than 18 of a video game that was so violent, it was "patently offensive" under prevailing community standards for minors. Prosecutors would also have to show that the game lacked serious literary, artistic, political or scientific value.
Like every other court that has considered such a law, the federal appeals court in San Francisco declared the California ban unconstitutional in February 2009. "The government may not restrict speech in order to control a minor's thoughts," the three-judge panel said.
But the Supreme Court may have signaled a willingness to chart a new course with its decision to review the California case. The court has established separate constitutional standards for minors in recent rulings on the death penalty and on free speech in school, and the state is urging a similar classification for interactive onscreen mayhem.
Kids and free speech
"The First Amendment rights of minors are not coextensive with the rights of adults," the state's lawyer, Deputy Attorney General Zackery Morazzini, said in written arguments.
Youngsters lack "the capacity to make a reasoned choice" when it comes to video games, he said, and California simply wants to reinforce parents' authority to protect their children.
The video game industry, with more than $10 billion in annual nationwide sales, also claims to represent parents' interests.
"There is no reason to think parents need California's 'assistance' in deciding which expression is worthwhile for their children," attorney Paul Smith said in a court filing. Smith is a lawyer for the Entertainment Software Association, which has sued to overturn the law.
Just like movie ratings
He said families are protected by the industry's voluntary rating system for retailers, which is based on age-group categories like those at movie theaters. The state and its allies call the system porous, but Smith described it as "remarkably effective."
At least six other states and several cities have passed laws similar to California's. The courts have struck down all of them.
In April, the Supreme Court ruled that videos showing cruelty to animals were entitled to constitutional protection. The 8-1 ruling struck down a federal law that made it a crime to show any such images but left open the possibility that a narrower law, targeted at particularly sadistic content, might be valid.
California argues that its law is limited to the most brutal, least socially valuable commercial products, those that reward a player for killing, maiming, raping or dismembering human figures.
Morazzini cited a court description of "Postal II," in which the player goes on a rampage of slaughtering police and unarmed civilians. "Girls attacked with a shovel will beg for mercy; the player can be merciless and decapitate them," he wrote.
Classic themes
Smith painted a more benign picture of an "increasingly sophisticated medium." More than two-thirds of U.S. households include at least one video game player, whose average age is 34, he said.
"Like the best of literature," Smith wrote, video games "often involve classic themes that have captivated audiences for centuries, such as good-versus-evil, triumph over adversity, struggle against corrupt powers, and quest for adventure."
California's law, he argued, is "the latest in a long history of overreactions to new expressive media," such as comic books, movies and rock music - all of which were once portrayed as dangers to children's morals and welfare.
The court challenge is supported by moviemakers and booksellers, who say they fear a precedent for government censorship, and civil liberties organizations.
Link to violence?
California is backed by the American Academy of Pediatrics, which says studies increasingly show that minors who play violent video games are more likely to think and act aggressively.
Other researchers have disputed that conclusion, and the appeals court said it found no convincing evidence that the games cause psychological damage.
That issue is intertwined with one of the state's main arguments: that violence in video games should be judged by the same obscenity standard as sex.
The Supreme Court ruled in 1968 that a state could prohibit sales of sexually explicit material to minors that would be legal if sold to adults. If the court looked at video violence through the same lens, California would have an easier time justifying its law - for example, with studies that suggest a link between the games and aggressive behavior.
"Violent material can be just as harmful to the well-being of minors as sexually explicit material," Morazzini said.
Not so, said Smith. "Unlike explicit sexuality, violence is not and never has been a taboo subject for children," he said.
A ruling in Schwarzenegger vs. Entertainment Merchants Association, 08-1448, is due by the end of June.
E-mail Bob Egelko at begelko@sfchronicle.com.
This article appeared on page C - 1 of the San Francisco Chronicle
The law, blocked by court orders since Gov. Arnold Schwarzenegger signed it in 2005, would prohibit the sale to anyone younger than 18 of a video game that was so violent, it was "patently offensive" under prevailing community standards for minors. Prosecutors would also have to show that the game lacked serious literary, artistic, political or scientific value.
Like every other court that has considered such a law, the federal appeals court in San Francisco declared the California ban unconstitutional in February 2009. "The government may not restrict speech in order to control a minor's thoughts," the three-judge panel said.
But the Supreme Court may have signaled a willingness to chart a new course with its decision to review the California case. The court has established separate constitutional standards for minors in recent rulings on the death penalty and on free speech in school, and the state is urging a similar classification for interactive onscreen mayhem.
Kids and free speech
"The First Amendment rights of minors are not coextensive with the rights of adults," the state's lawyer, Deputy Attorney General Zackery Morazzini, said in written arguments.
Youngsters lack "the capacity to make a reasoned choice" when it comes to video games, he said, and California simply wants to reinforce parents' authority to protect their children.
The video game industry, with more than $10 billion in annual nationwide sales, also claims to represent parents' interests.
"There is no reason to think parents need California's 'assistance' in deciding which expression is worthwhile for their children," attorney Paul Smith said in a court filing. Smith is a lawyer for the Entertainment Software Association, which has sued to overturn the law.
Just like movie ratings
He said families are protected by the industry's voluntary rating system for retailers, which is based on age-group categories like those at movie theaters. The state and its allies call the system porous, but Smith described it as "remarkably effective."
At least six other states and several cities have passed laws similar to California's. The courts have struck down all of them.
In April, the Supreme Court ruled that videos showing cruelty to animals were entitled to constitutional protection. The 8-1 ruling struck down a federal law that made it a crime to show any such images but left open the possibility that a narrower law, targeted at particularly sadistic content, might be valid.
California argues that its law is limited to the most brutal, least socially valuable commercial products, those that reward a player for killing, maiming, raping or dismembering human figures.
Morazzini cited a court description of "Postal II," in which the player goes on a rampage of slaughtering police and unarmed civilians. "Girls attacked with a shovel will beg for mercy; the player can be merciless and decapitate them," he wrote.
Classic themes
Smith painted a more benign picture of an "increasingly sophisticated medium." More than two-thirds of U.S. households include at least one video game player, whose average age is 34, he said.
"Like the best of literature," Smith wrote, video games "often involve classic themes that have captivated audiences for centuries, such as good-versus-evil, triumph over adversity, struggle against corrupt powers, and quest for adventure."
California's law, he argued, is "the latest in a long history of overreactions to new expressive media," such as comic books, movies and rock music - all of which were once portrayed as dangers to children's morals and welfare.
The court challenge is supported by moviemakers and booksellers, who say they fear a precedent for government censorship, and civil liberties organizations.
Link to violence?
California is backed by the American Academy of Pediatrics, which says studies increasingly show that minors who play violent video games are more likely to think and act aggressively.
Other researchers have disputed that conclusion, and the appeals court said it found no convincing evidence that the games cause psychological damage.
That issue is intertwined with one of the state's main arguments: that violence in video games should be judged by the same obscenity standard as sex.
The Supreme Court ruled in 1968 that a state could prohibit sales of sexually explicit material to minors that would be legal if sold to adults. If the court looked at video violence through the same lens, California would have an easier time justifying its law - for example, with studies that suggest a link between the games and aggressive behavior.
"Violent material can be just as harmful to the well-being of minors as sexually explicit material," Morazzini said.
Not so, said Smith. "Unlike explicit sexuality, violence is not and never has been a taboo subject for children," he said.
A ruling in Schwarzenegger vs. Entertainment Merchants Association, 08-1448, is due by the end of June.
E-mail Bob Egelko at begelko@sfchronicle.com.
This article appeared on page C - 1 of the San Francisco Chronicle
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