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Supreme Court: First Amendment covers video games

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California Supreme Court Justices - Getty Images

In a landmark ruling, the U. S. Supreme Court Monday declared video games are protected forms of free speech, striking down a controversial California law that that attempted to restrict the sale of some titles to minors.

The state argued that violent games are harmful to children and, as such, their sale should be restricted. California took a slightly different approach than other states who have attempted to pass similiar laws, though, by including violent games in the same category as cigarettes and adult magazines.

The Court strongly rejected the argument.

"Video games qualify for First Amendment protection," the Court said in its ruling, written by Justice Scalia. "Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. ... Since California has declined to restrict ... other media (e.g., Saturday morning cartoons), its video-game
regulation is wildly under inclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint."

The 7-2 ruling came as a relief not only to publishers and game makers, but to the broader entertainment industry, which feared a decision in California's favor could have a trickle-down effect, ultimately having a negative impact on the First Amendment protections afforded to the film and television industries.

Justices seemed to have this in mind as they ruled, noting that there are plenty of other sources of violence children are exposed to, from Grimm Brothers nursery tales to more classical works of literature.

"Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat," the Court said. "But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and
magazines are no less forms of speech than The Divine Comedy, and restrictions
upon them must survive strict scrutiny."

The video game industry, not surprisingly, celebrated the decision.

"We are very gratified that our arguments - and those of over 180 other groups and individuals from across the ideological spectrum - were heard in this case," said Michael D. Gallagher, president and CEO of the ESA, the industry's trade group. "The Court has now definitively held that legislative attempts to restrict video game content will be struck down. It is time for elected officials to stop wasting time and public funds seeking
unconstitutional restrictions on video games."

Joining the celebrating was the Electronic Software Ratings Board, the group responsible for assigning age-appropriate ratings to video games. The Court favorably addressed the ESRB's efforts in its ruling, saying the current ratings system "does much to ensure that minors cannot purchase seriously violent games ontheir own, and that parents who care about the matter can readily evaluate the games their children bring home."

"Today's decision acknowledges the value and effectiveness of the ESRB rating system, the Federal Trade Commission's positive assessment of our self-regulatory regime, and the latest research showing that game retailers overwhelmingly enforce their voluntary store policies regarding the sale of Mature-rated games," said Patricia Vance, president of the ESRB. "In striking this law the Court has made clear that the video game industry effectively empowers parents to be the ones to decide which games are right for their children."

Even Hollywood was cheering the verdict.

"The motion picture industry is no stranger to governments' incursion on freedom of expression," said Senator Chris Dodd, Chairman and CEO of the Motion Picture Association of America. "From the very inception of the movie industry, attempts to restrict speech have threatened the creativity of American movie-makers. We applaud the Supreme Court for recognizing the far-reaching First-Amendment implications posed by the California law."

Industry critics, however, vowed that the fight is far from over.

"We respectfully disagree with the Court when it comes to their analysis of the First Amendment rights of children and families," said James Steyer, CEO of Common Sense Media. "This is a sanity issue, not a censorship issue. If parents decide a
violent game is okay for their kid, that's one thing, but millions of kids are not able to judge the impact of ultra-violence on their own. Today, the multi-billion dollar video game industry is celebrating the fact that their profits have been protected, but we will continue to fight for the best interests of kids and families. Moreover, we look forward to working with national and state policy makers on another common sense solution in the very
near future."

M-rated titles -- the rating which extremely violent games usually receive -- do not make up the majority of games on the market. In 2010, they made up 25 percent of all games sold by unit. They do, however, tend to be the industry's biggest hits -- including last year's "Call of Duty: Black Ops," which boasted sales of $1 billion in just six weeks.

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