States cannot ban the sale or rental of ultraviolent video games to children, the Supreme Court ruled Monday, rejecting such limits as a violation of young people’s First Amendment rights and leaving it up to parents and the multibillion-dollar games industry to decide what children can buy.
The high court, on a 7-2 vote, threw out California’s 2005 law covering games sold or rented to those under 18, calling it an unconstitutional violation of free-speech rights. Writing for the majority, Justice Antonin Scalia, said, “Even where the protection of children is the object, the constitutional limits on governmental action apply.”
Justice Scalia, who pointed out the violence in a number of children’s fairy tales, said that while states have legitimate power to protect children from harm, “that does not include a free-floating power to restrict the ideas to which children may be exposed.”
Justices Stephen Breyer and Clarence Thomas dissented from the decision, with Justice Breyer saying it makes no sense to legally block children’s access to pornography yet allow them to buy or rent brutally violent video games.
“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 of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?” he said.
Video games, said Justice Scalia’s majority opinion, fall into the same category as books, plays and movies as entertainment that “communicates ideas — and even social messages” deserving of First Amendment free-speech protection. And non-obscene speech “cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them,” he said.
This decision follows the court’s recent movement on First Amendment cases, with the justices throwing out attempts to ban animal cruelty videos, protests at military funerals and political speech by businesses.
The court will test those limits again next session when it takes up a new case involving government’s effort to protect children from what they might see and hear. The justices agreed to review appeals court rulings that threw out Federal Communications Commission rules against the isolated use of expletives as well as fines against broadcasters who showed a woman’s nude buttocks on a 2003 episode of ABC’s “NYPD Blue.”
California’s 2005 law would have prohibited anyone under 18 from buying or renting games that give players the option of “killing, maiming, dismembering, or sexually assaulting an image of a human being.” Retailers who sold directly to minors would have faced fines of up to $1,000 for each game sold.
Video game makers and sellers celebrated their victory, saying Monday’s decision puts them on the same legal footing as other forms of entertainment.
“There now can be no argument whether video games are entitled to the same protection as books, movies, music and other expressive entertainment,” said Bo Andersen, president and CEO of the Entertainment Merchants Association.
Justice Thomas argued in his separate dissent that the nation’s founders never intended for free-speech rights to “include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.”
States can legally ban children from getting pornography. But Justice Scalia said in his ruling that, unlike depictions of sexual conduct, there is no tradition in the United States of restricting children’s access to depictions of violence.
He noted the violence in the original depictions of many popular children’s fairy tales such as “Hansel and Gretel,” “Cinderella” and “Snow White.” Hansel and Gretel kill their captor by baking her in an oven, Cinderella’s evil stepsisters have their eyes pecked out by doves and the evil queen in Snow White is forced to wear red hot slippers and dance until she is dead, he said.
“Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore,” he said.
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