Why California's case against violent video games is a long shot

Lawmakers from California to Indiana have had violent video games in their sights for decades, but courts have struck down nearly a dozen laws aimed at restricting sales to minors. The US Supreme Court, though, has never entered the fray. That may change.

On Wednesday, California Attorney General Edmund "Jerry" Brown petitioned America's highest court to hear a video-game case concerning a 2005 state law that has been on hold since it was enacted, struck down by the Ninth Circuit Court of Appeals before it could go into effect. The law would ban sales to minors of mature-themed games and impose fines of up to $1,000 for violations.

"The state has a compelling interest in this issue," says state Sen. Leland Yee, the law's original sponsor. "It begs for a ruling by the high court in order to lay out some ground rules."

But the likelihood is small that the nine justices will take up the California petition, say many legal analysts, citing First Amendment issues about restrictions on free speech, particularly in the field of entertainment.

"For a variety of reasons, I don't think they'll take it," says Dave Kohler, director of the Southwestern Law School Donald Biederman Entertainment and Media Law Institute. "The most significant one is the fact that if you apply this standard to video games, then you have to apply it to television, movies, and pay cable shows as well."

While the top justices have weighed in on issues pertaining to the regulation of pornography, he says, regulating violence in a fictional setting is another and much larger issue.

"You're talking about the central topic of many of the great works of literature throughout history," Mr. Kohler adds.

Jurists such as federal appellate court Judge Richard Posner have declined to support such regulation. In 2001, the judge wrote for the panel that struck down an Indianapolis law against video-game violence: "To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it."

Pointing to the legal challenges inherent in such regulation, entertainment lawyer Ezra Doner has a simpler explanation for the filing.

"It's political grandstanding" by California's Jerry Brown, says the New York attorney. "It's a no-lose proposition for the attorney general. Who would say they don't want to keep children safe?"

Mr. Brown has made clear his intention to run for governor, but says through spokesman Scott Gerber that his goal is for the US Supreme Court to weigh in on video-game violence, just as it has on pornography and obscenity issues. In a prepared statement, the attorney general states, "Currently, states may regulate the sale of sexually explicit magazines to children, but they cannot place similar limits on the sale of violent video games."

The law, says Senator Yee, carefully targets what he considers a particularly offensive niche within the $50 billion video-game industry: the "the interactive, ultraviolent, first-person shooter," which he argues has a greater impact on kids than more passive forms of entertainment such as TV or movies.

He and Brown got backup for the California petition from the Parents Television Council.

"This California law was designed to enforce the video game industry's own voluntary retail guidelines not to sell M-rated (Mature) or AO-rated (Adults Only) video games to children," says PTC President Tim Winter. "This law does nothing to violate the constitutional rights of minors – it simply empowers parents and backs up the industry's own retail standards with enforceable penalties."

Even if the issue is legitimate, Mr. Doner suggests that Brown, a wily political veteran, may have a grander agenda in mind.

"He may want to focus national attention on the political balance of the Supreme Court," he says. "Picking such a hot-button issue as this would bring national attention to the court just as the president goes about choosing another justice."