Supreme Court to Decide Whether States Can Regulate Violent Video Games

April 27, 2010

On Monday, the Supreme Court agreed to review a ruling that the First Amendment bars restrictions on video games with violent themes. The Comic Book Legal Defense Fund has actively opposed such restrictions, including participating in a 2008 friend-of-the-court (aka amicus) brief filed by the Media Coalition, addressing this same case. In hearing this case, the Supreme Court will decide whether or not it will adopt a new constitutional standard that allows states to ban violent content.

A Media Coalition press release lays out what’s at stake:

At issue in Schwarzenegger v. EMA, No. 08-1448, is a challenge to a California video game law, enacted in 2005, that prohibited the sale or rental to minors of any video game containing certain violent content. The law – blocked by a federal judge in 2006 before it took effect – also required such manufacturers to include an “18 and older” warning label on the front of the package, and provides civil penalties of up to $1,000 for violations.

Lyle Denniston, writing for the SCOTUSblog notes:

The Court apparently had been holding the case until it decided another First Amendment case involving violent expression — U.S. v. Stevens (08-769). In that ruling, issued last Tuesday, the Court struck down a federal law that banned the depiction in videotapes of animal cruelty. In that ruling, the Justices refused to create a new exception to the First Amendment free speech right. The Court could have opted to send the California case back to the Ninth Circuit Court to weigh the impact of the Stevens decision. Instead, it simply granted review; the case will be heard and decided in the Court’s next Term, starting Oct. 4.

In 2008, the CBLDF joined an amicus brief filed by the Media Coalition in the Ninth Circuit Court of Appeals in support of the plaintiffs in this case. We argued that speech with violent content could not be regulated by the government and that the labeling requirement was unconstitutional as compelled speech. Last year, a three-judge panel of the Ninth Circuit ruled unanimously that the restriction on speech and the labeling requirement violates the First Amendment. Now the State of California is asking the Supreme Court to overturn that decision, and to establish a new constitutional standard that would allow states to ban games with violent content for users under the age of 18.

Media Coalition Executive Director David Horowitz says, “In last week’s ruling in U.S. v. Stevens, the Court reiterated that speech is protected by the First Amendment save for a small number of narrow historic exceptions. The speech at issue in this case does not fall within one of those narrow exceptions and we hope that the Court will decline to create a new category of unprotected speech.”