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To Ban or Not to Ban: Supreme Court to Hear Violent Video Game Case

By Tanya Roth, Esq. on April 27, 2010 | Last updated on March 21, 2019

On Monday April 26, the U.S. Supreme Court decided to hear a case it had been holding for months. The Court will hear the case of Schwarzenegger v. Video Software Dealers Association which concerns a California law banning the sale of violent video games to minors. The Court may have been waiting to decide whether to hear the appeal from the 9th Circuit Court of Appeals decision striking down the law until it had decided the outcome of a case with similar First Amendment concerns, U.S. v. Stevens, the "crush videos" case written about here in a previous post.

According to the SCOTUS Blog, California law makers passed a statute banning the sale or rental of violent video games to minors. The law describes a violent game in part, as, one that depicts "killing, maiming, dismembering, or sexually assaulting an image of a human being." The Associated Press reports California's attorneys argued to the 9th Circuit court that there were studies showing a link between viewing violence and anti-social behavior and desensitization to violence in children. However, the court was not persuaded that there was a valid link between the games and harm to children.

SCOTUS Blog writes that in their appeal to the High Court, the advocates for the state of California are hoping the Court will adopt the same standards for violent video games as are applied to pornography and children. The standard the Court would apply comes from the Court's 1968 decision in Ginsberg v. New York, which allows states to pass laws barring minors' access to obscene materials if the law represents a reasonable judgment by the legislature that exposure to these materials will harm minors. This standard has never been applied outside the arena of sexual content.

According to SCOTUS Blog Representatives for the video game industry hope the Court will follow the example of the 9th Circuit and apply the "strict scrutiny" level of protection (the highest available) to the speech of video games. In their petition to the Court they said, "What the State proposes in this case would effect a sea change in the permissible regulation of all media -- including books, movies, and television programs -- that contain violent content and are accessible to minors."    

So, as always, we have the sometimes opposing interests of free speech verses the benefits of keeping (perhaps some part of) society safe. Two resounding issues compete in this case. First, is sexual content so much worse than violence that it should be kept from minors, but depictions of killing and maiming are judged to be deserving of First Amendment protection? And second, what about the slippery slope? In our zeal to protect our children, if we judge violence so harmful, could Slaughterhouse-Five be the next thing gone from the school library?

This case will be heard by the Supreme Court during the Court's next term, beginning on October 4, 2010.

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