Tomorrow the Entertainment Software Association will stand before the Supreme Court and argue on behalf of the video games industry that video games are protected by the same First Amendment rights as music, books, and movies. The law they'll be arguing against involves an attempt by California's legislature, signed into law by governor Arnold Schwarzenegger, to ban the sale of "violent video games" to minors.
Were the law to pass, stores found in violation of selling such games to minors would be subject to a $1,000 fine.
What's a "violent video game"? According to the California law, a game which depicts the "killing, maiming, dismembering, or sexually assaulting [sic] of an image of a human being in a manner that a reasonable person would find appeals to a deviant or morbid interest of minors." If this first "prong" applies, it's then run through a second check that asks whether "the patently offensive, deviant level of violence causes the game as a whole to lack serious literary, artistic, political, or scientific value for minors."
The law, known as AB 1179 and passed by California's congress in 2005 has already failed the judicial litmus test twice. In 2005, a U.S. district judge blocked the law before it could go into effect, arguing that it unconstitutionally restricted minors' rights and--just as importantly--questioned links posited by the law's proponents between "exposure to violent video games" and "psychological or other harm to children."
And again in 2009, three judges on the 9th U.S. Circuit Court of Appeals upheld the district court's ruling that the law was unconstitutional. The law, wrote Judge Conseulo Callahan, "violates rights protected by the First Amendment," citing California's inability to demonstrate "a compelling interest" and arguing that "less-restrictive means" exist "that would further [California's] expressed interests."
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