Video Games Entitled to First Amendment Protection

In a 7-2 ruling, the high court struck down a proposed California law that targets games that portray extreme violence such as the killing, mutilation, or sexual assault of a human figure. The law would have imposed a $1,000 fine on retailers selling or renting video games rated ''M'' for ''Mature'' to anyone other than an adult.

However, according to the majority's ruling, video games are a form of expression and are therefore entitled to protections under the First Amendment. In writing for the majority, Justice Antonin Scalia compared video games to other forms of expression, such as books, plays, and movies. He further noted that the state carries the authority to guard children ''but that does not include a free-floating power to restrict the ideas to which children may be exposed.''

In addition to Scalia, the majority included Justices Anthony M. Kennedy, Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. both agreed with the decision to strike down the California law but for different reasons. Roberts and Alito argued that the ''California law is not framed with the precision that the constitution demands.'' Both justices also argued that the majority was not entirely open to considering the potential negative effects of violent video games.

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Alito voiced concern over the content in many video games that are currently available, including games in which characters are cut into pieces, torched, beheaded, and disemboweled. However, Scalia was not swayed by Alito's concerns. ''Justice Alito recounts all these disgusting video games in order to disgust us-but disgust is not a valid basis for restricting expression,'' said Scalia.

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Justices Clarence Thomas and Stephen G. Breyer both dissented but for different reasons. In his dissent, Thomas argued that freedom of speech was never intended to supersede the role of the parent in determining what information or sources of expression should be available to a minor. Breyer noted the hypocrisy in censoring one form of expression but not another. ''What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman while protecting the sale to that 13-year-old boy of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her.''

With or without a law in place, game producers voluntarily rate video games, thus providing parents with some control over which games they can safely allow their children to play. Like movies, video games offer parental advisory warnings as well as a rating. Furthermore, most video game retailers opt not to sell ‘M'' games to minors. Additionally, because video game producers have to answer to public demand, there is a definite economic disadvantage to producing any game that will not readily be accepted by mainstream society.

The Supreme Court's ruling means ''parents, not government bureaucrats, have the right to decide what is appropriate for their children,'' said Michael D. Gallagher, president and chief executive of the US Computer and Video Game Industry.