This morning the Supreme Court of the United States has released its decision in the pivotal case of Brown v. Entertainment Merchants Association, which considered whether "a state law restricting the sale of violent video games to minors violates the First Amendment right to free speech." The answer was an overwhelming "yes," with the court finding there is no compelling evidence to state that video games are more damaging to children than other forms of media.
This is a large step forward for video games manufacturers and users, and should, for the moment, stop the spread of unconstitutional and expensive legislation in other states.
In the 7-2 decision, the high court upheld a federal appeals court decision to overrule Californiaâs ban on the sale or rental of violent video games to minors. The 9th U.S. Circuit Court of Appeals in Sacramento had ruled that the law violated minors' rights under the First Amendment, and the high court agreed.
"No doubt a state possesses legitimate power to protect children from harm," said Justice Antonin Scalia, who wrote the majority opinion. "But that does not include a free-floating power to restrict the ideas to which children may be exposed."
The California law would have prohibited the sale or rental of violent games to anyone under 18. Retailers who violated the act would have been fined up to $1,000 for each infraction.
More than 46 million American households have at least one video game system, with the industry bringing in at least $18 billion in 2010.
Unlike depictions of "sexual conduct," Scalia said there is no tradition in the United States of restricting children's access to depictions of violence, pointing out the violence in the original depiction of many popular children's fairy tales like 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, Scalia said.
The court cast doubt on the belief that games are more harmful to children than other forms of media, such as film or music. "Californiaâs claim that 'interactive' video games present special problems, in that the player participates in the violent action on screen and determines its out-come, is unpersuasive."
The opinion, written by Justice Scalia, clearly rejects California's arguments that video games threaten our children, and require legal intervention at the retail level.
Many believe that the law, as it was written, was bound to fail, because, every previous state law that attempted a similar ban was struck down as unconstitutional. California's law sought to control the sale of games with "deviant violence" to children, but lacked any clear definition of what âdeviant violenceâ would encompass.
While the California law would have added an exception to the first amendment to exclude certain content from protection, essentially saying that video games were not speech, the Supreme Court has decided that video games are in fact expression, and are afforded the same rights and protections as every other art form sold to consumers.
But Justice Thomas, who dissented from the decision along with Justice Breyer, said the majority read something into the First Amendment that isn't there. In dissent, Thomas wrote, "the practices and beliefs of the founding generation establish that "the freedom of speech," as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians."
Given the clear decision of the majority, it will likely be some time before we see another broadly worded state law attempting to regulate the sale of video games to minors.