Supreme Court strikes down controversial law, upholding gaming's First Amendment rights

It’s been a long road, but at last there is closure in the so-called “violent videogames” case that has been raging for years. In November of last year the EMA (a group representing gaming politically) took the State of California all the way to the Supreme Court for a 2005 law that made it illegal to sell certain games deemed too violent to children. After arguments months ago, the highest court in the USA gave its ruling of 7-2 in favor of the EMA, finding the law unconstitutional.

The argument was authored by Justice Scalia, a famously conservative judge, saying:

“The most basic principle--that government lacks the power to restrict expression because of its message, ideas, subject matter, or content--is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test… California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors… Even where the protection of children is the object, the constitutional limits on governmental action apply.”

So there you go, videogames are protected speech. Or if you want to look at it from a different angle, activist judges are out to destroy today’s youth. Won’t somebody think of the children?!? Seeing as how this is a gaming site, it’s hard not to take sides and view this as a victory for the medium, one that gives gaming similar validity to music and film, even if some see it as only a battle between greedy publishers out to sell questionable games to whomever they can no matter the moral cost. But what do some of the biggest dogs in this fight think?

Above: The obligatory GTA screen that goes in any article about this subject

The ESA released an email celebrating the ruling, as this has been a very long battle for them. They said, “This is a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere. Today, the Supreme Court affirmed what we have always known – that free speech protections apply every bit as much to video games as they do to other forms of creative expression… It is time for elected officials to stop wasting time and public funds seeking unconstitutional restrictions on video games. Instead, we invite them to join with us to raise awareness and use of the highly effective tools that already exist to help that parents choose games suitable for their children.” Somebody’s feeling pretty proud of themselves.

On the other end of the spectrum is the PTC, a group famous for denouncing the evils of the media, be they pro wrestling or videogames (games about wrestling must drive them crazy). Obviously they were less than thrilled by the ruling. From their press release: “Sadly, today’s ruling proves the United States Supreme Court heard the video game industry loud and clear, but turned a deaf ear to concerned parents. The Court has provided children with a Constitutionally-protected end-run on parental authority.” It continued, “The carefully-worded California statute would not have interfered in any way with the rights of the creators of adult games or the adults who wish to buy them; and in fact, it would not interfere with parents who wanted to purchase such a game for their children. Rather, the measure only would have prevented an unaccompanied minor child from buying or renting the product… We will continue to use all the resources within our power to call out unscrupulous retailers. If the federal courts won’t stand for parents, then we hope the court of public opinion will.”

Above: We bet the PTC really hates this video

Only a fool would think today ends the violent games debate, but this is certainly a feather in the cap of the gaming world, as it sets a legal precedent that will be a hurdle for any future legislation. What do you think of all this? Did the Supreme Court make the right choice? Will this be the last law about gaming on which millions of dollars must be spent to defeat? Are children’s morals destroyed beyond recognition?

Jun 27, 2011


Mortal Kombat


  • aliengmr - June 29, 2011 9:18 p.m.

    With precedent set its going to be very hard to create a law against violent video games. I am not surprised by thee decision, but I was surprised how well some of the justices understood video games as it related to the arguments. Regardless of the outcome, I have a new found respect for the supreme court because of this case. The fight may not be over, but setting precedent can be a tough SOB to overcome, especially with the first amendment. Sorry Jack.
  • Conservative_Gamer - June 29, 2011 7:30 p.m.

    Sorry I am late, but this is great news. The government bureaucrats shouldn't be the ones deciding what games our kids should or shouldn't play. It should be up to their parents, they know what is best for their kids and every parent and every kid is different, and have different preferences. Second, the videogame industry does an excellent job controlling and regulating themselves. They already refuse to sell M rated games to minors because they want to help the parents so that they will come back to their store. They may lose a $60 game sale from the child, but they could gain a $2000 TV sale from the parents who appreciate the stores policy and wanted to come back. It's brilliant marketing if you ask me. Third and last point. The ESRB rating system was voluntarily created by the industry to keep the angry parents and politicians out off their backs. The rating system allows parents and other gamers to choose the game that is right for them based on their content. The only people who are against violent videogames today are (thankfully) a small minority of cooks who hate freedom and hate videogames in general. We gamers may have won this battle, but anything in politics will never end, so there will be more battles to fight. We can certainly enjoy this victory for now though.
  • elmaropwnz - June 28, 2011 11:47 p.m.

    The battle is over the war is not. Which is ironic because the people who disapprove of war in video games are waging a war of sorts on the free peoples of nerdia. Also, how come nobody bitched like this when the Godfather came out, or when any of the several U.S propaganda towards destroying the Japanese came out. Sure it's different context but regardless: Violent, hateful images are displayed throughout the world every day. And it isn't because some game devs wanna sell your kids some games no matter the moral cause. It's because people are violent. Period. And the watchdog groups may try to hide it but if I was a parent. I would think it better to have a kid that knows what violence is and to stay away from it, than a child who is clueless to human nature. Thank you.
  • uvebeenpwned - June 28, 2011 8:01 p.m.

    Wait - you're telling me that the Supreme Court actually upheld the First Amendment to videogames, and now we are one step closer to their being no age restriction for videogames? No, no, I'm just dreaming. Excuse me, but I'm going to go dance around like a fool and give my life savings to charity and kiss a woman on the streets in an attempt to live this dream to it's fullest.
  • e1337prodigy - June 28, 2011 7:07 p.m.

    Let me guess, the 2 that voted against were the little old lady on the bottom right and the old man sitting next to her, since they are the only 2 not smiling lol. Gaming = fun.
  • mockraven - June 28, 2011 3:41 p.m.

    @alphafour -- It's about precedent more than the case itself. For the US, the First Amendment is one of our most treasured rights. If games don't fall under the First Amendment and the freedom of expression, then that means that the games *developed* don't fall under the freedom of expression, either. Once the precedent is set, then future legal cases can dispute what types of games can be made in the future and what's allowed and not allowed based on the point of whether games can be made as developers see fit or whether they must then fall under government regulated guidelines. The case itself needed to say "games don't count under the First Amendment" in order to create a government-run system of ratings and fines (which is already rated by the ESRB and enforced *voluntarily* by most major US retailers). Once you remove the First Amendment from the games-media via precedent, then you remove the people's -- and thus the developers' -- freedom to experiment and explore with the creation of games and stifle their evolution to something as potentially exciting as a calculus textbook. Call me mistaken but both Manhunt and GTA are developed and published by a company with its primary office in the US and would be directly influenced by whatever future "guidelines" and "regulations" that would follow. I'm afraid I don't know enough to say if that would also affect imported games from outside the US or not. Either way, the case declared that our beloved past-time also falls under the First Amendment, so hopefully we'll never know for sure.
  • ChiChiRocket - June 28, 2011 3:37 p.m.

    @Evilsafetyboy You are my hero! It is much more important to protect children from bad games than mature ones.
  • alphafour - June 28, 2011 1:47 p.m.

    you guys are nutters... a courtcase for this? what a waste of money. Here in the UK we have BBFC ratings on some games as well as the normal PEGI (ESRB) ratings. retailers do get fined for selling games to underage individuals and their parents/guardians etc. would have to come in and buy it for them. The same way a boy can't go and buy Saw 3, because it's an 18. Perhaps I misunderstood the case, but if this is what you were disputing, you really need to divert your attention to more important matters! As far as the government censoring games, I just think it's a bit farfetched.. I can only recall Manhunt being banned in the UK.. and for good reason, it was a bit of a sick game.. I played it and I didn't enjoy it. People say oh if Manhunt is banned why isn't GTA? GTA has a lot of killing and drugs and sex but always in a very comical manner. It never really took itself seriously. Manhunt was all about killing for the sake of killing, and it was gruesome with little humour. Choking someone with a plastic bag was especially weird and unnerving for me. If you can't spot the difference there, go and play the two games. Obviously that's just my opinion. It seems like we have what Cali proposed already and it never really bothered anyone in this country. I guess the only difference between UK and USA is that in the UK laws get passed and repealed on a daily basis, but in the USA once a law is passed it can be difficult to repeal, right? Anyway, take from this what you like! bye bye
  • StoneDreadnaught - June 28, 2011 5:29 a.m.

    I'm very happy that this decision was finally released, though I knew this was going to be the end result. And I actually witnessed a GameStop employee (when I bought SotD), tell a grandmother with her grandson, that the game she was buying her grandson was M rated. So shut up PTC.
  • BillCosby - June 28, 2011 3:20 a.m.

    If you dont want your kid playing something violent, when they bring a game up and ask if they can buy it, look at it and make the right call. if its M that means for mature people. Little Timmothy isnt as mature as you think.
  • Innounci - June 27, 2011 11:35 p.m.

    “Sadly, today’s ruling proves the United States Supreme Court heard the video game industry loud and clear, but turned a deaf ear to concerned parents." Here's an idea: How about actually paying attention to your child and the things they want. If they want a violent video game, and you don't approve, then DON'T BUY IT. Simple solutions to complicated problems.
  • Doctalen - June 27, 2011 11:18 p.m.

    Wow, that was a landslide of a vote. Its times like these that make me feel that the legal system can actually work every now and then.
  • KnightDehumidifier - June 27, 2011 9:45 p.m.

    Okay, now all that's left is that whole legalize weed thing and that gay marriage thing and we can call it. Maybe we can throw in a way to legalize murdering people who cut me off in traffic. I'm looking at you in the silver BMW with the smartphone.
  • FoolyCoolyKid - June 27, 2011 9:26 p.m.

    Parents, I must present you with an idea about this. Talk to your children and take an interest or notice in what your children do. Then you teach them to make the right decisions about what video games they purchase, while you keep an eye on them. Or we could let the government do it for us, and we're all one step closer to 1984. Your choice.
  • jericho909 - June 27, 2011 9:17 p.m.

    all my gamer brothers around the world, rojoice! we won. to celebrate this, let's play Saints Row: The Third!
  • Anjaneya - June 27, 2011 8:48 p.m.

    I dunno, I thought that law was ok. Why should kids be allowed buy 18's games? They can't in the UK or Ireland. Their moron parents can buy 18s games for them, but I don't see why the kids themselves should be allowed do so.
  • Bloodstorm - June 27, 2011 8:29 p.m.

    Very happy with this decision. These activist groups can spread parental awareness as much as they want, the gaming industry will appreciate it because it will take heat off of them, but they crossed the line by trying to pass laws to do parenting for the parents. The ESRB clearly marks every package with a large letter rating and snippets of the reasoning for that rating. Every major chain in America enforces those ratings as well, just like every theater enforces movie ratings without the governments interference. But then, you can blame the government for kids getting these games in the first place. Parents have no backbone anymore, they can't tell their kids no (or wont) because you can't punish kids anymore. Public schools teach them their parents can't punish them physically, and if kids have half the imagination as I did as a kid, grounding them and taking things away from them don't affect them either. Maybe we start giving some control of children back to the parents, what do you say government? (probably a big fat NO).
  • EnigmaSpirit - June 27, 2011 7:01 p.m.

    How about this, parents, if you don't want you kids playing violent videogames, then BE A PARENT AND DON'T LET YOUR KIDS PLAY VIOLENT VIDEOGAMES. Maybe don't buy 10 year old Jimmy the new God of War.
  • V22Dreamcast - June 27, 2011 6:34 p.m.

  • profile0000 - June 27, 2011 6:26 p.m.

    Wow, I never would have believed it would have passed 7-2. That surprises me. I have more faith in the SCOTUS now. Not much, but more.

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