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Supreme Court's Upcoming Decision On California's Video Game Law May Permanently Prohibit Government Threats of Legislation Over Media Forever


Parents living in California are likely well aware that the constitutionality of the state's 2005 legislation prohibiting the sale of violent video games to minors is about to be decided by the Supreme Court, with the hearing set for November 2, 2010. The law was struck down by a federal appeals court on the basis the legislation violated the First Amendment. However, considering the Supreme Court's previous decisions that have determined minors do have First Amendment rights, I'm fearful they will move toward the logical conclusion that preventing an eight-year-old from buying a game with human chopping zombies would also violate his First Amendment rights.


But even more troubling are the far ranging effects that could occur if the Supreme Court upholds the decision of the US 9th Circuit Court of Appeals. For a decade the Federal Trade Commission has provided reports on the status of marketing violent entertainment to children (links to all six reports from September 2000 forward can be found on this page). Over the years of these reports, the FTC has considered -- perhaps even threatened -- that legislation will be enacted if the industry can't manage to enforce their own voluntary movie, music, television and video game ratings. If the Supreme Court decides it is unconstitutional to restrict the First Amendment rights of children, this will indeed remove the threat of legislation over the entertainment industries. And with that threat removed, can we trust these organizations to continue enforcing their own voluntary restrictions?


Now that the Supreme Court has agreed to make a decision on the ruling, the battle lines are drawn in this case that may have ramifications well beyond the Golden State. Due to its importance, many are lining up on either side to make their case. Possibly the most surprising entrant who initially appears to be siding with the video game industry in supporting the abolition of the law is Utah Attorney General Mark Shurtleff.


Representing one of the most family centered states in the Union, one would assume Utah would be first in line behind the notion of protecting your children from violent games. Shurtleff's surprising suggestion, reported on August 20, 2010 in the Salt Lake Tribune, that he may file a brief opposing California's legislation has caught the ire of many pro-family organizations, including media watchdog non-profit Common Sense Media and Arizona-based United Families International. Says CEO James Steyer from Common Sense Media, "It is hard to believe that someone making these statements would support the video game industry’s anti-child safety position."


It truly does seem like a no-brainer for anyone concerned about families. Yet in the same Salt Lake Tribune article, Shurtleff defends his position, saying that if the Supreme Court rules in California's favor and upholds the 2005 law, it will unwittingly recognize a casual link between video game violence and violent crime. In essence Shurtleff is concerned violent criminals could use a childhood of video game playing as a legitimate defense for their criminal actions.


It's an interesting theory, but I'm far from convinced. (The fact that Shurtleff received $3,000 from the Entertainment Software Association in 2008, also reported in the Salt Lake Tribune article, certainly does little to help his argument.)


I also can't help but wonder how many other countries have managed to restrict access of violent adult materials from children through legislation. The Canadian province of Ontario has similar laws and still seems to keep murderers behind bars. In the same year California enacted their legislation, Ontario made a small change to the underlying definition of a motion picture in their Film Classification Act that included, "an interactive moving image such as a video game...". This effectively gave the ESRB ratings, which are only voluntarily enforced in the US, legal clout in Ontario. (In Canada, all movie ratings are enforced by legislation, as opposed to the voluntary rating system used by the MPAA for movies or the ESRB for video games in the US.)


Australia has similar laws and only now is looking at adding a rating to their system to allow the most violent games to be made available for sale to adults. At present some of these games are completely banned from the country.  New Zealand and the UK have also used legislation to control select video game titles in their countries.


Obviously no state Attorney General can control the outcome of the Supreme Court's decision. It's also important to know the Attorney General of Louisiana led a coalition of 11 states in support of the California law. Conversely, media giants are taking their expected positions. Editorials in the Los Angeles Times and New York Times are firmly opposed to the idea of using legislation to restrict the First Amendment rights of children -- even at the cost of giving them possible access to extremely violent video games.


Certainly this whole process begs the question of what responsibility government has in the protection of children.  Interestingly, the answer to this question was also offered in Ginsberg v. New York:


"While the supervision of children's reading may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society's transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of material to them. It is, therefore, altogether fitting and proper for a state to include in a statute designed to regulate the sale of pornography to children special standards, broader than those embodied in legislation aimed at controlling dissemination of such material to adults." (Ginsberg v. New York, Page 390 U.S. 640.)


In other words, it's "altogether fitting" for a government to help parents protect their children. If pornography qualifies (and remember, this case in 1968 was considering a magazine with photos of a woman's bare breasts and buttocks -- something we are seeing on prime time television today) shouldn't video games that glamorize murder and torture? I find it ironic that in this day, when we are so concerned about the physical safety of our children, we continue to balk at even the slightest restriction of personal freedom instead of prioritizing a child's mental health. I truly hope legislators will uphold California's right to prevent minors from purchasing violent video games and also avoid setting a serious precedent that will remove any threat of legislation from the entertainment industry.


Rod Gustafson


Besides writing this column for the Parents Television Council, Rod Gustafson authors Parent Previews® - a newspaper and Internet column (published in association with movies.com) that reviews movies from a parent's perspective. He's also the film critic for a major Canadian TV station, various radio stations and serves on the executive of the Alberta Association for Media Awareness. Finally, his most important role is being the father to four wonderful children and husband to his beautiful wife (and co-worker) Donna.

Parenting and the Media by Rod Gustafson

The Parents Television Council - www.parentstv.org

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