Court Blocks Law Limiting Sales of Violent Video Games

Citing free speech issues, a federal judge has blocked a California law outlawing sales of violent video games to minors that was scheduled to go into effect next week. The ruling hands the gaming industry a victory that may be short-lived, however, as similar legislation looms.

The court order, which had been sought by video game software makers and others in the industry, is a temporary reprieve from a law that could have a major impact on how video games are created and marketed. The judge cited potential curbs on free speech that would violate the First Amendment in making the ruling.

Game Labels

The law, which California lawmakers passed and Gov. Arnold Schwarzenegger signed in October, would require that violent video games be sold with labels identifying them as suitable for those 18 and older, and would have allowed fines of up to US$1,000 againstretailers who rented or sold those games to minors.

U.S. District Judge Ronald Whyte ruled that appeals against the law had a chance to prevail on free-speech grounds. Though the judge did find that at least one game, “Postal II,” contained scenes that were “especially cruel and depraved,” he said that didn’t mean that the state should step in and stop them from being sold to certain individuals.

The video game industry hailed the ruling.

“For the sixth time in five years, federal courts have now blocked or struck down these state and local laws seeking to regulate the sale of games to minors based on their content, and none have upheld such statutes,” said Douglas Lowenstein, president of the Entertainment Software Association (ESA).

The industry favors avoiding legislative options “in favor of cooperative efforts to accomplish the common goal of ensuring that parents use the tools available to control the games their kids play,” he added.

Logistical Nightmare

The ESA lobbied hard against the California law, fearing it would become a bellwether for other states. Existing and emerging technologies — including the ratings now placed on all video game boxes, as well as parental controls built into new gaming consoles — are a more effective approach to protecting minors, Lowenstein said, emphasizing that parents have a responsibility along with the industry.

“We believe a combination of parental choice and parental control is the legal, sensible and, most importantly, effective way to help parents keep inappropriate video games from children, and we dedicate ourselves to working with all parties to accomplish this goal,” he said.

The stakes for the industry are high, with the entire system of game production potentially at risk. While the industry counts millions of adult gamers among its most active consumers, teens and younger players are still an important market.

If games could not be sold to those under 18, the industry might be forced to begin producing and marketing two versions of popular titles, including one that would get an under-18 rating. That would add to the expense of producing games and most likely would cut into profit margins.

Not the First, Not the Last

California state officials have not decided whether to appeal the ruling or otherwise fight to have the law implemented. Past experiences, however, suggest that once such laws are struck down — previous attempts have been made by lawmakers in Michigan and city officials in Indianapolis — the efforts are usually shelved.

Still, odds are that the attempt won’t be the last word as lawmakers find political gains in seeking ways to keep violent video games out of the hands of children.

In fact, U.S. Sen. Hillary Clinton recently said she plans to introduce federal legislation that would limit what type of businesses could sell mature- and adult-rated video games.

Such a bill would undoubtedly face both fierce lobbying from game developers and other niches of the entertainment industry, which might fear a spread of the attacks on video games to movies and other forms of media.

“These laws keep coming and coming,” said David L. Hudson Jr., research attorney with the First Amendment Center at Vanderbilt University.

Judges that have struck down such laws have often cited the lack of a clear connection between violent video games and violent behavior by those who play them.

Supporters of the limitations say the situation is similar to the early days in the fight to limit smoking among minors, with evidence of the link between smoking and lung cancer emerging over time, but others say the lack of hard evidence that games can cause violent behavior is a stumbling block.

Indeed, in his ruling, Judge Whyte noted that other judges have reviewed the evidence and found it “unpersuasive.” That is an important consideration, Hudson noted, because case law upholds limits on speech that contain “true threats, incitement to imminent lawless action or fighting words.”